Shannon v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1985
• Date: 01 January 1985
• Docket Number: [1983 No. 7871P]
• Court: Supreme Court

Shannon v. Ireland

Séamus Shannon

Plaintiff

and

Ireland and The Attorney General

Defendants

[1983 No. 7871P]

High Court

Supreme Court

Constitution - Statute - Validity - Personal rights - Extradition - Warrant for arrest of plaintiff issued in Northern Ireland - Warrant endorsed for execution within the State - Order directing delivery of plaintiff to authorities in Northern Ireland - Procedure - Admission of evidence by affidavit during course of trial - Order 39, rule 1, of the Rules of the Superior Courts, 1962 - Extradition Act, 1965 (No. 17) Part III - Constitution of Ireland, 1937, Articles 29, 34, 40.

Pursuant to Part III of the Extradition Act, 1965, the plaintiff, a citizen of Ireland, was arrested in the State on foot of two warrants issued by a judicial authority in Northern Ireland, charging him with murder contrary to common law. The warrants were endorsed for execution within the State by the Assistant Commissioner of the Garda Síochána, and the plaintiff was brought before the District Court, which made two orders directing that the plaintiff be delivered into the custody of the Northern Ireland police.

The plaintiff applied to the High Court for a declaration, inter alia, that Part III of the Extradition Act, 1965, is invalid having regard to the provisions of the Constitution. At the trial in the High Court of the issues raised in the plaintiff's summons, the plaintiff sought to introduce evidence by affidavit without the consent of the defendants, under order 39, rule 1 of the Rules of the Superior Courts. The High Court (Finlay P.) admitted the evidence by affidavit, but dismissed the plaintiff's claim as to the declarations sought.

Per Finlay P.—In any ordinary litigation between parties, it would not be in the interests of justice to permit, in the absence of agreement, the introduction of evidence by affidavit during the course of the trial, and applications for a direction under order 39, r. 1. must be made as a preliminary application before the trial of an action.

R. v. Milne [1978] N.I. 110 and Wyatt v. McLoughlin[1974] I.R. 395 considered.

The plaintiff appealed against the dismissal of his claim.

Held by the Supreme Court, in dismissing the appeal and affirming the order of the High Court, 1, that the plaintiff had failed to establish that the law, procedure or practice relating to the interrogation, detention or trial of the plaintiff in Northern Ireland would, on their due application, subject the plaintiff to what would be less than his entitlement under Art. 40, s. 3, of the Constitution in a corresponding prosecution in this State.

2. That there was no evidence that any person charged with a criminal offence had been prejudiced or endangered in his trial by reason of public discord, sectarian conflict or other factional aspects of society in Northern Ireland; that the plaintiff had therefore failed to establish that, if extradited, he would be exposed to physical danger or the risk of an unfair trial by reason of conditions generally in Northern Ireland, such as to be deprived of his personal rights under Art. 40, s. 3, of the Constitution.

3. That the exception from extradition provided by s. 11, sub-s. 2. of Part II of the Act of 1965, had no application to the facts of this case.

4. That the Court was not satisfied by the evidence that a requirement of scrutiny by the District Court of the basis of the charges in the extradition warrant is a generally recognised principle of international law.

5. That, in the absence of any evidence in this or any previous case of extradition to Northern Ireland of a lack of good faith or of evidential basis for the charges set out in the warrants, the plaintiff had failed to establish that he was being deprived of his personal rights under Art. 40, s. 3. of the Constitution.

6. That the reciprocity which is necessarily implicit in the Extradition Act, 1965, justifies the presumption that fundamental fairness of procedures will be exercised by the requesting State, after extradition has taken place: in particular, that upon delivery into the custody of the Northern Ireland police on foot of an extradition warrant, a person will be brought as soon as practicable before a Magistrates Court. In the absence of sufficient evidence to rebut this presumption, the plaintiff had failed to establish that, if extradited, he would be denied his personal rights under Art. 40, s. 3, of the Constitution.

Quaere: whether the scope and application of Article 29, s. 3. of the Constitution may be used by the plaintiff to test the constitutionality of Part III of the Extradition Act, 1965.

Cases mentioned in this report:—

¹ R. v. Milne [1978] N.I. 110.

² Wyatt v. McLoughlin [1974] I.R. 395.

³ McGlinchey v. Wren [1982] I.R. 154; [1983] I.L.R.M. 169.

⁴ McMahon v. Leahy [1984] I.R. 525. [1985] I.L.R.M. 423

⁵ The Republic of Ireland v. United Kingdom 1979-80 Vol. 2, E.H.R.R. 25.

⁶ Reg. v. Smyth [1982] N.I. 271.

Plenary Summons.

On the 12th July, 1983. the plaintiff was arrested in the State by a member of the Garda Síochána in execution of two warrants, which had been issued by a justice of the peace of the Petty Sessions, District of Armagh in Northern Ireland. The warrants had been endorsed for execution within the State by the Assistant Commissioner of the Garda Síochána and they recited respectively, a complaint that on the 21st January, 1981, at Tynan Abbey, Tynan in the County of Armagh, the plaintiff had murdered Charles Norman Lockhart Stronge, and a complaint that on the same date, at the same place, the plaintiff had murdered James Matthew Stronge. On the 26th July, 1983, the District Justice sitting at Balbriggan District Court made two orders pursuant to s. 47 of the Extradition Act, 1965, directing that the plaintiff be delivered into the custody of a member of the Royal Ulster Constabulary for conveyance to Northern Ireland. Under s. 48, sub-s. 1, of the 1965 Act, the operation of these orders was postponed for fifteen days. On the 10th August, 1983, the plaintiff, pursuant to s. 48, sub-s. 2, of the 1965 Act, made an application to the High Court for an order directing his release under s. 50 on the ground that the offences to which the warrants related were political offences, or offences connected with political offences; alternatively, that there were substantial reasons for believing that the plaintiff, if removed from the State under Part III of the Act, would be prosecuted or detained for a political offence or an offence connected with a political offence. While that application was pending, the plaintiff, on the 14th November, 1983, issued a plenary summons in which he sought the following relief:— (1) A declaration that Part III of the Extradition Act, 1965, is invalid having regard to the provisions of the Constitution. (2) Alternatively, a declaration that Part III of the Act, in so far as it relates or purports to relate to Northern Ireland, is invalid having regard to the provisions of the Constitution. (3) Further or in the alternative, a declaration that, having regard to the conditions now obtaining, and particularly the state, application, administration and enforcement of the law in Northern Ireland, the handing over of the plaintiff to the Northern Ireland authorities would be unconstitutional and would amount to an unconstitutional failure to vindicate the constitutional rights of the plaintiff, a citizen of Ireland.

Order 39, rule 1, of the Rules of the Superior Courts, 1962, provides:— "In the absence of any agreement in writing between the solicitors of all parties, and subject to these Rules, the witnesses at the trial of any action, or at any assessment of damages, shall be examined viva voce and in open court, but the Court may, at any time for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court may think reasonable, or that any witness whose attendance in Court ought for some sufficient cause to be dispensed with be examined by interrogatories or otherwise before a commissioner or examiner; provided that, where it appears to the Court that the other party, bona fide, desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit."

Section 43, sub-s. 1, in Part III of the Extradition Act, 1965, provides:—

"(1). Where—

• (a) a warrant has been issued by a judicial authority in a place in relation to which this Part applies for the arrest of a person accused or convicted of an offence under the law of that place, being an indictable offence or an offence punishable on summary conviction by imprisonment for a maximum period of at least six months, and

• (b) on production of the warrant to the Commissioner of the Garda Síochána it appears to the Commissioner that the person named or described therein may be found in the State,

• the Commissioner shall, subject to the provisions of this Part, endorse the warrant for execution."

Section 45, sub-ss. 1 and 2 in Part III provides:—

"(1). A warrant endorsed under section 43 may be executed by any member of the Garda Síochána in any part of the State.

(2). The person named or described in the warrant shall on arrest he brought before a justice of the District Court for the district in which he was arrested, if a justice is immediately available."

Section 47, sub-s. 1, in Part III provides:—

"(1). Where a person named or described in a warrant is before the District Court in pursuance of this Part that Court shall, subject to the provisions of this Part, make an order for his delivery at some convenient point of departure from the State into the custody of a member of a police force of the place in which the warrant has been issued, for conveyance to that place, and...