Shannon v Fanning

• Jurisdiction: Ireland
• Judge: McCARTHY J.,HEDERMAN J.,O'HIGGINS C.J.
• Judgment Date: 01 January 1985
• Date: 01 January 1985
• Docket Number: [1983 Nos. 414 and 415 SP],(28/1984)
• Court: Supreme Court

1984 WJSC-SC 2738

THE SUPREME COURT

O'Higgins C.J

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

(28/1984)

(29/1984)

SHANNON v FANNING

SHANNON

v.

FANNING

Subject Headings:

CRIMINAL LAW: extradition

1 JUDGMENT delivered the 31st day of July 1984by O'HIGGINS C.J.[HENCHY & GRIFFIN CONC]

2 In these proceedings the Plaintiff seeks directions under Section 50 of the Extradition Act 1965for his release from an arrest effected under the provisions of that Act. The relief sought having been refused in the High Court, an appeal has been brought to this Court.

3 The warrants which led to the Plaintiff's arrest relate to two murders which took place at Tynagh Abbey, a large mansion situate at Tynagh, County Armagh, on the 21st January 1981. A full and accurate account of all the facts and circumstances surrounding these murders is not available and probably could not be available to the Court. However, the Plaintiff has put before the Court an account which he states has been derived from various sources and which he says he believes to represent what happened and who was responsible. While giving thisaccount from his own enquiries and from enquiries which he caused to be made, the Plaintiff makes it clear that he denies any personal involvement or participation in what took place.

The Plaintiff's account

4 According to the account so given, on the night of the 21st January 1981 a group of men dressed in military style uniform and fully armed forced their way into Tynagh Abbey. This large mansion was the home of Sir Norman Stronge who had been, many years before, a member of and the Speaker of the House of Commons of Northern Ireland. He lived in retirement in Tynagh Abbey - he was 84 years of age - with his family, including his son, James, who had also been a member of the House of Commons and later of the Assembly in Northern Ireland. Having so entered, this armed group sought out Sir Norman and his son, James, both of whom were unarmed, and shot them dead. This having been accomplished the group planted bombs and incendiary devices and set the mansion ablaze. The Plaintiff in his affidavit asserts that responsibility for this raid and these killings was claimed by theProvisional IRA, an organisation which, he says, has amongst its aims and objectives "the re-unification and re-integration of the national territory of Ireland". The Plaintiff further claims that, having regard to the Provisional IRA's responsibility for what occurred, to its stated objectives and aims and to the association of the victims with the Establishment in Northern Ireland, these two murders were political offences.

The political exception

5 Section 50 of the Extradition Act 1965deals with what has come to be known as ldquo;the political exception". It empowers the High Court to release a person arrested under its provisions, where the Court is of opinion that the offence to which the warrant relates is a political offence or an offence connected with a political offence. Apart from the exclusion in Section 3 from the scope of "political offence" of the taking or attempted taking of the life of a Head of State or a member of his family, the Act does not indicate or define what is meant by theexpression. In my view it follows that what constitutes a political offence falls to be determined in each case, having regard to the act done and the facts and circumstances which surrounded its commission - the onus being on the person claiming the political exception to establish that the offence to which the warrant relates comes within its protection. It has been submitted in argument on behalf of the Plaintiff that the expression should be interpreted in accordance with what has been termed the "political incidence theory", as favoured in British courts. This is a theory or view which found expression in a number of English cases dating from In Re Castioni 1891 I Q.B. right up to recent times, requiring for recognition as a political offence merely that the offence be committed during and as part of a political disturbance. The argument was that as the political incidence theory represented the prevailing judicial view in Great Britain at the time of the passing of the Extradition Act, and, as this Act was intended to be reciprocal with British legislation of the same year, theOireachtas must be taken to have intended that the term "political offence" would be interpreted in our courts in the same way as it had always been interpreted in British courts. I do not accept this argument. It seems to me that if such were the intention of the Oireachtas it would have been a simple matter to specify this intention in words indicating that the term "political offence" should apply to acts done or committed as part of a political disturbance or incident. The Oireachtas, of course, did no such thing. It left the matter open for the opinion of the Court, thus indicating, in my view, a clear intention that what constitutes a political offence is to be decided on the particular facts and circumstances of each case, viewed in the light of the standards and values which obtain in this country at the particular time.

The political exception and murder

6 On the basis that the account given by the Plaintiff of what took place on the 21st January 1981 is reasonably correct, it does appear that these cold-blooded killings and the subsequent burning of the victims' home were thework of the Provisional IRA. I am prepared to accept, even apart from the Plaintiff's assertion to that effect, that one of the stated aims of this organisation is the achievement of "the re-unification and re-integration of the national territory". It is not to be assumed, however, because of this fact, that everything done by or on behalf of this organisation comes within the political exception. In McGlinchey v. Wren 1982 I.R. 154 at 160, in a judgment which had the unanimous support of my colleagues, I said:

"The excusing per se of murder, and, of offences involving violence and the infliction of human suffering, done by, or at the behest of, self-ordained arbiters, is the very antithesis of the ordinances of Christianity and civilisation and of the basic requirements of political activity."

7 I would also repeat the following, which is to be found in the same judgment (at p.159):

8 "All that can be said with authority in this case is that, with or without the concession made on behalf of the plaintiff, this offence could not be said to be either a political offence or an offence connected with a political offence.Whether a contrary conclusion would be reached in different circumstances would depend on the particular circumstances and on whether those particular circumstances showed that the person charged was at the relevant time engaged, either directly or indirectly, in what reasonable, civilised people would regard as politicalactivity."

9 Apart from the fact that, as appeared from other cases coming before this Court, the Provisional IRA have abjured normal political activity in favour of violence and terrorism, the circumstances disclosed as to the murders in question here were so brutal, cowardly and callous that it would be a distortion of language if they were to be accorded the status of political offences or offences connected with political offences. For this reason these offences, in my view, cannot be accorded the status of political offences.

10 I would accordingly reject the Plaintiff's claim to a direction based on Section 50(2)(a)(i).

Alternative basis for Plaintiff's claim

11 The Plaintiff also bases his claim to a direction under Section 50 on the provisions of subsection (2)(b) of the Section which apply where

"there are substantial reasons for believing that the person named or described in the warrant will, if removed from the State under this Part, be prosecuted or detained for a political offence or an offence connected with a political offence or an offence under military law which is not an offence under ordinary criminal law."

12 In this connection the Plaintiff states that in 1974 while residing in the North of Ireland he was a member of Fianna Eireann which is a proscribed organisation according to the law of Northern Ireland. He also states that while a member of that organisation he was involved in and was charged with a number of offences relating to damage to property. It also appears from an affidavit of Raymond Matthewson, a Detective Constable in the RUC, that in December 1974 when facing charges of malicious damage to property before Belfast High Court, the Plaintiff failed to appear while on bail and a bench warrant was issued for his arrest. The Plaintiff relies on these facts to suggest that there are substantial grounds for believing that if removed to Northern Ireland he will be prosecuted for a political offence. This suggestion is controverted in an affidavit sworn byHenry Gerard McCann, a Detective Inspector in the RUC, who is the officer in charge of the investigations into the deaths of Sir Norman Stronge and his son. He states positively that the Plaintiff will not be prosecuted in relation to any of the matters which he mentions and he further states that a direction from the Director of Public Prosecutions in the North has been issued to that effect.

Onus on the Plaintiff

13 The onus is on the Plaintiff to establish that there are substantial reasons for believing that if removed to Northern Ireland he would be prosecuted not for the offence for which his removal is sought but for some other offence of a political character. In my view the Plaintiff has failed to discharge this onus. Other than stating that while a member of Fianna Eireann, one of whose objects was "the re-integration of the national territory", he committed offences involving damage to property, he gives no indication as to why such offences should be regarded as political. Even if it...