Sey v Disrict Justice Johnson

JurisdictionIreland
JudgeO'Hanlon J.,
Judgment Date20 September 1989
Neutral Citation1989 WJSC-HC 2377
Docket NumberNo.193/1988,[1988 No. 193 J.R.]
CourtHigh Court
Date20 September 1989

1989 WJSC-HC 2377

THE HIGH COURT

No.193/1988
SEY v. JOHNSON
Judicial Review

BETWEEN

ALISTAIR LINDSAY SEY
APPLICANT

AND

DISTRICT JUSTICE PATRICK K. JOHNSON
RESPONDENT
1

Judgment of O'Hanlon J.,delivered the 20th day of September, 1989.

2

District Justice Patrick Keenan Johnson made an Order in the District Court sitting in Kilkenny on the 7th June, 1988, pursuant to Part III of the Extradition Act, 1965, for the extradition of the Applicant from the jurisdiction for the purpose of having him brought before the court in Scotland to face charges of obtaining money by false pretences and larceny.

3

The validity of that Order is now challenged in these proceedings for judicial review on a number of different grounds. These are referred to in the Order of Mr. Justice Blayney, dated the 20th June, 1988, giving leave to apply for judicial review, and are as follows:-

4

"The said Order and Determination of the District Court was wrong in that -

5

(a) It did not state if or which corresponding offences in the State were summary or indictable;

6

(b) It specified offences within the State not corresponding to offences in the said warrant;

7

(c) It specified offences within the State in multiplicity;

8

(d) It did not specify or sufficiently specify statutory sources of offences within the State and was thereby without or in excess ofjurisdiction."

9

Sec. 47(1) of the Extradition Act, 1965, deals with the making of an extradition order by the District Court under Part III of the Act (which deals with extradition to Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands), and sub-sec. (2) of Sec. 47 provides as follows -

10

"(2) An order shall not be made under subsection

11

(1) if it appears to the Court that the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months."

12

Where an order has been made under Section 47, an applicationmay be made by the person to whom the order relates, or on his behalf, for an order of habeas corpus or for his release under section 50 and in the event of an application being made under section 50 of the Act the High Court may direct the release of the person concerned, interalia where the Court is of opinion that -

13

"the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months." (Sec. 50 (2) (c)).

14

In the present case, however, the Applicant has by-passed the procedures contemplated by the Act, namely, the application for relief by way of habeas corpus or the application for relief under the provisions of Sec. 50 of the Act, and has elected instead to apply for judicial review of the Order made in the District Court for the purpose of seeking an order of certiorari, to quash the said Order. This arises in the Judicial Review proceedings, Record Number 193 JR/88. There are, however, concurrent proceedings in being under Sec. 50 of the Act initiated by Special Summons, Record No. 1988, No. 520, and these proceedings appear to have been left in abeyance pending the outcome of the present application.

15

The Order made in the District Court for extradition of the Applicant recites the particulars of the offences charged against the Applicant as contained in the warrant dated the 23rd February, 1987, which had to be considered by the Court.

16

Two charges are referred to in the warrant. Thefirst charge, which is set out in considerable detail, charges the Applicant with falsely representing to police officers in Dunfermline that his house had been broken into and jewellery and money stolen, and making similar false representations to a firm of insurance brokers, as a result of which he induced two insurance companies to pay him compensation for loss of such jewellery and money. The second charge is that - "having between 19th September 1982 and 9th February 1985, both dates inclusive at the Metro Bar, Queensferry Road, Rosyth, received a cigarette lighter for safekeeping from Ronald Mathie, 31 Cromwell Road, Rosyth, he did between the said dates at said Metro Bar or elsewhere in Scotland, appropriate said cigarette lighter to his own use and did steal same."

17

The particulars given in relation to the first charge are, in my opinion, clearly adequate for the purpose of establishing, (if proved in due course), the offence of obtaining money by false pretences as known to our law. The offence is dealt with by the Larceny Act, 1916, Sec. 32, where it is made a misdemeanour punishable on indictment with penal servitude for any term not exceeding five years, and again by the Criminal Justice Act, 1951, Sec. 10, where it is made a misdemeanour carrying a maximum penalty of five years penal servitude or imprisonment for a term not exceeding twoyears.

18

The Order of the learned District Justice, however, as well as referring to the corresponding offence under Sec. 10 of the Criminal Justice Act, 1951, also referred to other corresponding offences under our criminal law, which, in his opinion, were disclosed by the particularsgiven in relation to the first charge. For example, he took the view (in my opinion, incorrectly) that a charge would lie under the Forgery Act, 1913, Sec. 6, based on the submission by the applicant to his insurance brokers of a list of jewellery and money claimed to have been stolen, at a time when the Applicant knew that they had not been stolen. However, the reference to these additional offences which he regarded as "corresponding offences" under our law, even if incorrect, does not in my opinion, invalidate the warrant for extradition. In The State (Furlong) .v. Kelly, (1971) IR 132, the following passage appears in the judgment of Chief Justice O Dalaigh at p. 141 of the report:-

"The basic inquiry is to discovery whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence (the "corresponding offence") is an indictable offence or, if not, whether it is punishable on summary conviction by imprisonment for a maximum period of at least six months."

19

This would indicate that the learned District Justice was entitled, as he did, to refer in his Order not only to the corresponding offence in our law disclosed by the description given in Count One of the warrant taken as a whole, but also to other offences which, in his opinion, should be regarded as corresponding offences in our law, even if one were to take only some of the ingredients...

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