Stanton v O'Toole

• Jurisdiction: Ireland
• Judge: Keane C.J,Mrs. Justice Susan Denham
• Judgment Date: 09 November 2000
• Neutral Citation: [2000] IESC 36
• Court: Supreme Court
• Date: 09 November 2000

[2000] IESC 36

THE SUPREME COURT

KEANE C.J.

DENHAM J.

MURRAY J.

305/99

STANTON v. O'TOOLE

BETWEEN:

CORNELIUS STANTON

Plaintiff/Appellant

and

PATRICK O'TOOLE

Respondent

Citations:

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1965 S50(2)(bbb)

EXTRADITION (AMDT) ACT 1987 S2(1)(b)

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S43(1)

EXTRADITION ACT 1965 S45

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S54

EXTRADITION ACT 1965 S55

EXTRADITION ACT 1965 S47(2)

CRIMINAL LAW (RAPE) ACT 1981 S2

STAUNTON V O'TOOLE UNREP O'DONOVAN 7.12.1999 1999/23/7525

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4(1)(a)

FURLONG, STATE V KELLY 1971 IR 132

HANLON V FLEMING 1981 IR 489

WYATT V MCLOUGHLIN 1974 IR 378

WILSON V SHEEHAN 1979 IR 423

R V METROPOLITAN POLICE COMMISSIONER EX PARTE ARKINS 1966 1 WLR 1593

HARRIS V WREN 1984 ILRM 120

FUSCO V O'DEA 1998 3 IR 470

WAN V CONROY 1998 3 IR 527

Synopsis:

Extradition

Extradition; correspondence of offences; lapse of time; rape; plaintiff had failed to attend for trial at Glasgow High Court in 1994; plaintiff had been brought before Dublin District Court on foot of warrant executed in 1998; District Judge had ordered delivery of plaintiff into custody of Glasgow police; plaintiff had appealed to High Court; proceedings had been dismissed; extradition had been allowed to proceed; whether documents grounding warrant were valid; whether offence as set out on warrant corresponds with indictable offence known to law of this State; whether corresponding offence is that of rape; whether delay had been unjust; whether length of time taken to process case entirely inappropriate; s.2 of Criminal Law (Rape) Act, 1981.

Held: Appeal dismissed; corresponding offence is that of rape; delay had arisen because of plaintiff's actions;

Stanton v O'Toole - Supreme Court: Keane C.J., Denham J., Murray J. - 09/11/2000

The applicant had been arrested on foot of a warrant for extradition to Scotland. The offence the applicant had allegedly committed was a sexual offence. The relevant extradition order had been made in the District Court which the applicant challenged in High Court proceedings. The applicant argued, inter alia, that the offence in question did not correspond with an offence in this jurisdiction and in addition with the lapse of time the extradition should not proceed. O'Donovan J dismissed the proceedings in a judgment delivered on 7 December 1999. The applicant appealed. Denham J delivering the leading judgment affirmed that the offence in question corresponded to the offence of rape contrary to section 2 of the Criminal Law (Rape) Act 1981, as amended and dismissed the appeal.

1 JUDGMENT delivered on the 9th day of November 2000by Keane C.J.

2 I have read the judgment which will be delivered by Denham J. in this case. I agree entirely with the reasoning and the conclusions reached in the judgment and the order which she proposes.

3 I would also like, however, specifically to endorse her observation that the length of time taken to process this case through the High Court and this court is entirely inappropriate and that procedures for the case management of proceedings of this nature should be adopted in the superior courts. Given thenature of these cases, it is of critical importance that, while all the requirements of justice are met, they should be disposed in an expeditious manner as is reasonably practicable.

4 jud145

5 Judgement of Mrs. Justice Susan Denhamdelivered the 9th day of November, 2000.

1. Appeal

6 This is an appeal by Cornelius Stanton, the plaintiff/appellant, hereinafter referred to as the plaintiff, from the judgment and order of the High Court (O'Donovan J.) delivered on 7th day of December, 1999. The plaintiff has sought his release pursuant to s.50 Extradition Act, 1965, as amended. The plaintiff is the subject of proceedings seeking his extradition to Scotland on foot of a warrant for his arrest and order made in relation thereto by District Judge Collins on 2nd November, 1998. The plaintiff was arrested on foot of the said warrant on 22nd June, 1998 and remains in custody.

2. Facts

7 On 24th day of September, 1993 the plaintiff was arrested by an inspector of the Strathclyde Police Force in Scotland. On 28th day of September, 1993 he appeared beforeGlasgow Sheriff Court and was remanded in custody charged with an offence. On 5th day of October, 1993, the plaintiff reappeared before the Glasgow Sheriff Court and was granted bail in respect of the said offence subject to conditions, which included that he attend for trial. The plaintiff failed to attend at Glasgow High Court on the 15th day of August, 1994 whereupon a warrant for his arrest was issued. The warrant was not executed as the whereabouts of the plaintiff was not ascertained by the Strathclyde Police Force until about December, 1996. At that time the Police Force obtained information that the plaintiff may have a fixed address in Cork. The information concerning the plaintiff's whereabouts was communicated to the Procurator Fiscal in Glasgow in December, 1996. He in turn was instructed by the Crown Office in Edinburgh to establish whether after the lengthy passage of time there was still sufficient evidence available on which to prosecute the plaintiff. The Procurator Fiscal at Glasgow made further enquiries of the relevant witnesses and Crown Counsel's instructions were obtained to the effect that an attempt should be made to bring the plaintiff back from Ireland to Scotland. The warrant which had issued on 15th day of August, 1994, was retrieved and, having sought to establish what the appropriate procedure was in relation to rendition from Ireland, a new warrant for the apprehension of the plaintiff was issued on 13th day of May, 1998, from the High Court of Justiciary, Parliament House, Edinburgh, Scotland.

8 The warrant was endorsed by the defendant Patrick O'Toole, Assistant Commissioner of An Garda Siochana, on 19th day of June, 1998, and executed on 22nd day of June, 1998 in the County of Cork. The plaintiff was brought before the District Court in the Dublin Metropolitan District on the 2nd day of November, 1998, on foot of the said warrant. The District Court Judge ordered the delivery of the plaintiff into the custody of a member of theStrathclyde Police, Glasgow for conveyance to the High Court of Justiciary, Parliament House, Edinburgh, Scotland.

9 The plaintiff appealed the order. In the High Court two questions arose as to the validity of the order of the District Court. First, it was argued that the offence as set out in the warrant dated 13th day of May, 1998, does not correspond with an indictable offence known to the law of this State and that the decision of the learned District judge to that effect was wrong and therefore her jurisdiction to make the order did not exist. Secondly, it was submitted on behalf of the plaintiff that, as there had been a lapse of over six years since his initial arrest and, because of the significant delay of the authorities, it would be unjust, oppressive and invidious to deliver him up under the provisions of section 47 of the Extradition Act, 1965, having regard to the provisions of section 50(2)(bbb) of the Extradition Act of 1965as inserted by section 2(1)(b) of the Extradition (Amendment) Act, 1987. On these two issues - correspondence and delay - the learned High Court judge held against the plaintiff. He dismissed the proceedings and allowed the extradition ordered by the District Court on 2nd day of November, 1998, to proceed. However, the learned High Court judge held that the order for delivery should recite that the corresponding offence was rape contrary to section 4 of the Criminal Law (Rape) Act, 1990. Both of these matters were argued in the Supreme Court and are inissue.

3. Submissions

10 Mr. Feichín McDonagh, S.C., counsel for the plaintiff, presented written and oral submissions. He argued that the warrant submitted to support the application cannot be relied upon as it was not in the same terms as the original warrant but was drawn up to reflect the needs of the Irish Authorities rather than the practice of the Scottish Courts. It was submittedthat there is good reason not to accept the documentation in light of the evidence of Inspector Henry Campbell that it was completely in conflict with the usual practice of the Scottish Court. Extensive references to case law were made on this and the next issue. The next issue argued by counsel was correspondence. It was submitted that there was no corresponding offence. That neither the offence identified by the District Court nor by the High Court was a corresponding offence. That the offence set out in the warrant does not meet the legal requirements. In fact, it was argued that the issue of correspondence and the presumptions contained in the Extradition Act (as they related to Inspector Campbell's affidavit) were interrelated. It was queried as to how it came about that the plaintiff's rendition is sought in respect of "an indictable offence" which appears to allege matters which counsel submitted could form the ingredients of fourteen separate offences in this jurisdiction. Counsel answered his query by reference to the affidavit of Inspector Campbell, paragraph 17, and argued that the documentation was void on its face.

11 Further it was submitted that there had been such significant delay as to bring the plaintiff within the statute. It was accepted that the defence only arises if exceptional circumstances exist and, further, if the Court takes the view that it would be unjust, oppressive or invidious to deliver the plaintiff. It was submitted that in light of the facts of the instant case and in particular: (a) the absence of any real explanation for the delay involved in commencing extradition proceedings; (b) the approach of the Scottish authorities to their own procedure;...