Stanton v O'Toole

• Jurisdiction: Ireland
• Judge: Justice Diarmuid B. O'Donovan
• Judgment Date: 07 December 1999
• Neutral Citation: [1999] IEHC 52
• Docket Number: No.694 SP/1998
• Court: High Court
• Date: 07 December 1999

STANTON v. O'TOOLE

IN THE MATTER OF THE EXTRADITION ACTS, 1965TO 1994

BETWEEN

CORNELIUS STANTON

PLAINTIFF

AND

PATRICK O'TOOLE

DEFENDANT

AND IN THE MATTER OF ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN

CORNELIUS STANTON

APPLICANT

AND

THE GOVERNOR OF ARBOUR HILL PRISON

RESPONDENT

[1999] IEHC 52

No.694 SP/1998

THE HIGH COURT

Synopsis

Criminal Law

Extradition; habeas corpus; corresponding offence; delay; applicant seeks an order for his release from custody pursuant to s.50, Extradition Act, 1965 and an order for his release from custody on the grounds that his detention is not in accordance with law pursuant to Article 40.4.2, Constitution; applicant challenges the validity of District Court order; District Court Judge identified the offence specified in the warrant as corresponding with the offence of rape contrary to s. 2 Criminal Law (Rape) Act, 1981; whether the offence specified in the warrant corresponds with an offence of rape contrary to s. 2; whether the offence specified in the warrant corresponds with any other offence under the law of the State which is an indictable offences or an offence punishable on summary conviction by a maximum period of six months; whether the offence specified in the warrant corresponds with the offence of rape contrary to s. 4 Criminal Law (Rape) Act, 1990; whether an indictment framed in the terms of the offence specified in the warrant, which is certified as being a single offence, would be bad for duplicity and uncertainty and would not be allowed go to an Irish jury; whether the indictment would expose the applicant to practices which are unfair or unjust; whether it is unjust, oppressive and invidious to extradite the applicant on grounds of delay; whether the lapse of time was accompanied by other exceptional circumstances; whether the failure to explain the delay in initiating the extradition proceedings amounts to exceptional circumstances within the meaning of s. 50(2)(bbb), Extradition Act, 1965 as inserted by s. 2(1)(b) of the Extradition (Amendment) Act, 1987; whether the affidavit asserting non-compliance with usual practice of Scottish courts invalidates the warrant pursuant to s.55, Extradition Act, 1965.

Held: Applications dismissed; order for the delivery of the applicant to recite that the offence specified in the warrant corresponds an offence under the law of this State, which is an indictable offence, namely, rape contrary to s.4.

Stanton v. O'Toole - High Court: O'Donovan J. - 07/12/1999

The test to be applied in assessing whether the offence alleged in an extradition warrant corresponds with an offence in this jurisdiction is to determine whether the factual components of the offence, as specified in the warrant, would constitute an offence of the required gravity if committed in this jurisdiction. The High Court so held in saying that the offence alleged corresponded with the offence of rape contrary to s.4 of the Criminal Law (Rape) Act 1990 and further saying that the delay in this case was caused by the applicant and he was not entitled to be released because of that delay.

Citations:

EXTRADITION ACT 1965 S50

CONSTITUTION ART 40.4.2

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S50(2)(bbb)

EXTRADITION ACT 1965 S2(1)(b)

EXTRADITION ACT 1965 S54(2)

CRIMINAL PROCEDURE ACT 1967 S37

EXTRADITION ACT 1965 S55

EXTRADITION ACT 1965 S47(1)

EXTRADITION ACT 1965 S47(2)

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

FURLONG, STATE V KELLY & AG 1971 IR 132

WYATT V MCLOUGHLIN 1974 IR 378

WILSON V SHEEHAN 1979 IR 423

HANLON V FLEMING 1981 IR 495

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

ELLIS V O'DEA & SHIELDS 1989 IR 530

FUSCO V O'DEA 1998 3 IR 482

1 Justice Diarmuid B. O'Donovandelivered on the 7thday of December1999

2 These are two calims brought by the Plaintiff/ Applicant; firstly, for an Order pursuant to Section 50 of the Extradition Act, 1965, as amended, directing the Applicant's release from custody and, secondly, for an Order pursuant to the provisions of Article 40.4.2 of Bunreacht na hEireann directing that he be released from the custody of the Respondent on grounds that his detention by the Respondent is not in accordance with law.

3 On the 24th day of September 1993, the Plaintiff/ Applicant was arrested by Inspector Henry Campbell of the Strathclyde Policy Force in Scotland and, on the 28th day of September 1993, he appeared before Glasgow Sheriff Court and was duly remainded in custody charged with the offence of:- " On the 24th day of September 1993, at laidlaw House, 95 Cheapside Street. Glasgow, you did assault Frances O'Rourke, c/o Cranston Hill Police Office, Glasgow, seize hold of her, remove her clothing, struggle with her, place your hand over her mouth, throw her to the floor, scratch her on the face, restrain her, repeatedly pull her hair, force her to take your private parts, penetrate her hinder parts with your private member, masturbate in her presence, lie on top of her, force her legs apart and rape her" contrary to common law. On the 5th of October 1993, the Plaintiff/ Applicant reappeared before the Glasgow Sheriff Court and, on that date, date, was granted bail in respect of the said offence subject to the conditions then imposed which included the obligation to attend for trial scheduled at Glasgow High Court on the 15th day of October 1994. However, the Plaintiff/ Applicant failed to attend at the Glasgow High Court on the 15th August 1994 whereupon a warrant for his arrest was issued. The said warrant was never executed for the reason that the whereabouts of the Plaintiff/ Applicant was not ascertained by the Strathclyde Police force until in or about the month of December 1996 when the said Police Force obtained information that the Plaintiff/ Applicant may have a fixed address in Cork in the Republic of Ireland. Following receipt of that information, the said warrant for the arrest of the Plaintiff/ Applicant issued on the 15th day of August 1994 was retrieved and, having established from the Chief State Solicitor what the appropriate procedure was for satisfying the Irish authorities with regard to extradition, a fresh warrant for the apprehension of the Plaintiff/ Applicant issued on the 13th day of May 1998 from the High Court of Justiciary, Parliament House, Edinburgh, Scotland. The said warrant dated the 13th day of May1998recited that the Plaintiff/ Applicant had been indicated for the offence of: " On the 24th of September 1993 at Laidlaw House, 95 Cheapside Street, Glasgow, you did assault Frances O'Rourke, c/o Cranston Hill Police Office, Glasgow, seize hold to the floor, scratch her in the face, restrain her, repeatedly pull her hair, handle and insert your finger into her private parts, penetrate her hinder parts with your member, masturbate in her presence, lie on top of her, force her legs apart and rape her" contrary to common law endorsed by the Defendant, Patrick O'Toole, an Assistant Commissioner of the an Garda Siochana, on the 19th day of June 1998 and executed on the 22nd day of June 1998 in the Country Cork.

4 The plaintiff/Applicant was brought before District Court in the Dublin Metropolitant District on the 2nd day of November 1998 on foot of the said warrant and, by Order made on that date, the learned District Court Judge ordered the delivery of the Plaintiff/ Applicant into the custody of a member of the Strathcyde Police, Glasgow for conveyance to the High Court of Justiciary, Plaintiff House, Edinburgh, Scotland. In the said Order it is recited:-

"Whereas it appears to the Court that the offence specified in the warrant corresponds with an offence under the law of the State which is an indictable offence, namely; rape contrary to Section 2 of the Criminal Law (Rape) Act, 1981, as amended."

5 Two question arise as to the validity of this Order of the Learned District Court Judge. In first place, there is a challenge made on behalf of the Plaintiff/ Applicant on the grounds that the offence as set out in the said warrant dated the 13th day of May 1998does not correspond with an indictable offence known to the law to the law of this State and that the finding by the Learned District Judge of that effect was wrong and therefore that, her jurisdiction to make the Order under Section 47 of the Extradition Act, 1965did not exist.

6 Secondly, it was submitted on behalf of the Plaintiff/Application that, as there has been a lapse of over six years since arrest and a significant proportion of that period is attributable to delay on the part of the relevant authorities, it would be unjust, oppressive and invidious him up under the provisions of Section 47 of the Extradition Act, 1965, having regards to the provisions of Section 50(2)(bbb) of the said Act, of 1965 as inserted by Section 2(1) (b) of the Extradition (Amendment) Act, 1987.

7 While, in addition to the foregoing, originally it was submitted on behalf of the Plaintiff/Applicant that the certificate which accompanied the said warrant dated the 13th day of May 1998 and which purported to certify that the offence specified therein is by law of Scotland an indictable offence and punishable by imprisonment for a maximum period of at least six months and that it cannot be prosecuted summarily, was not admissible for the purpose of establishing the matters it purports to certify, in that, it did not comply with the requirements of the provisions of Section 54 (2) of the Extradition Act, 1995; not having been given by the Authority or the clerk officer of the Authority by which the said warrant was issued and that, accordingly, the Plaintiff/ Applicant was not being detained by the Respondent in accordance with law, it was ultimately conceded that, by virtue of the provisions of Section 37 of the Criminal Procedure Act, 1967, the said certificate was in order and, accordingly, that point was not pursued.

8 It was further...