State (Furlong) v Kelly

• Jurisdiction: Ireland
• Judgment Date: 29 July 1971
• Date: 29 July 1971
• Docket Number: [1970. No. 68 SS.]
• Court: Supreme Court

The State (Furlong) v. Kelly

THE STATE (at the Prosecution of MICHAEL FURLONG)

and

EDMOND J. KELLY and THE ATTORNEY GENERAL

[1970. No. 68 SS.]

Supreme Court

Extradition - Evidence - Corresponding offence - Order of District Court - Form of order - Habeas Corpus - Question of law - Jurisdiction of High Court - Extradition Act, 1965 (No. 17), ss. 41, 47.

A Justice of the Peace in England issued a warrant which was directed to the Mid-Anglia Constabulary and which commanded them to bring the prosecutor before the Magistrates Court at St. Ives to answer an information (recited in the warrant) that he had entered certain office premises in England as a trespasser and had stolen therein certain property contrary to s. 9 of the (English) Theft Act, 1968. The warrant was transmitted to Ireland where it was endorsed for execution there. The prosecutor was arrested in Ireland and was brought before a District Justice who made an order under s. 47 of the Extradition Act, 1965, directing that the prosecutor be delivered at Dublin airport into the custody of a duly authorised member of "a police force of England and Wales" for conveyance to England and Wales. Subsequently the prosecutor applied unsuccessfully in the High Court for an order of habeas corpus. On appeal by the prosecutor it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh, Budd, FitzGerald and McLoughlin JJ.), in allowing the appeal, 1, that the power of the District Court to make an order under sub-s. 1 of s. 47 of the Act of 1965 involved the determination of a question of law as the power was not exercisable if it appeared to that court that the offence specified in the foreign warrant did not correspond with an offence under the law of Ireland as provided by sub-s. 2 of s. 47 and that, accordingly, a decision by the District Court on that question of law could be reviewed by the High Court in habeas corpus proceedings.

2. (FitzGerald and McLoughlin JJ. dissenting). That the order of the District Justice was invalid as there had not been sufficient evidence before him to enable him to determine that question of law.

3. (FitzGerald and McLoughlin JJ. dissenting). That the order of the District Justice was also invalid because it failed to direct that the prosecutor be delivered into the custody of a duly authorised member of the Mid-Anglia Constabulary, which was the police force to which the foreign warrant was directed initially.

Appeal from the High Court.

On the 6th February, 1970, a warrant was signed by a Justice of the Peace of the County of Huntingdon and Peterborough, Petty Sessional Division of Hurstingstone. The warrant was addressed to the constables of the Mid-Anglia Constabulary and commanded them to bring Michael Furlong before the Magistrates' Court at St. Ives to answer the information appearing on the warrant, namely, that Michael Furlong of no fixed address between the 20th and 21st November, 1969, at St. Ives in the said County "did, having entered the office of A.R.C. (Concrete) Ltd. as a trespasser, steal therein an Autorite ticket machine of the value of £39, the property of the said A.R.C. (Concrete) Ltd. contrary to section 9 of the Theft Act, 1968." On the 9th February, the warrant was endorsed for execution in Ireland by an Assistant Commissioner of the Garda Síochána pursuant to s. 43, sub-s. 1, of the Extradition Act, 1965. There was attached to the warrant a statement by the clerk to the Justices for the said Petty Sessional Division certifying that the offence of burglary was an indictable offence (not being an offence triable on indictment only at the instance or with the consent of the accused) and not also a summary offence under the law of England and Wales; there was also attached to the warrant a statement by a Detective Sergeant of the Mid-Anglia Constabulary authenticating the signature of the Justice of the Peace.

Michael Furlong was arrested in Ireland and on the 14th February an order was made by District Justice Moloney pursuant to s. 47, sub-s. 1, of the Act of 1965 and was addressed to the Superintendent of the Garda Síochána at the Bridewell, Dublin. That order recited the contents of the English warrant and continued as follows:—"And whereas I am satisfied that the endorsement of the said warrant is in accordance with the provisions of Part III of the above Act; it is hereby ordered that you deliver the said Michael Furlong at Dublin airport (being a convenient point of departure from this State) into the custody of a duly authorised member of a Police Force of England and Wales, being the place where the said warrant was issued, for conveyance to England and Wales . . ."

On the 16th February Furlong applied to the High Court ex parte for an order of habeas corpus and, having failed to obtain such order, he appealed to the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Budd and FitzGerald J.J.). On the 9th March the Supreme Court gave Furlong liberty to apply again in the High Court for an order of habeas corpus. On the 7th April the High Court refused the renewed application which had been made by Furlong in person and ex parte. Furlong appealed again to the Supreme Court and on the 20th April that court assigned solicitor and counsel to act on behalf of Furlong. The appeal was heard on the 20th July when Furlong was represented by the late J. R. Heavey S.C. and by The O'Rahilly. On the 29th July, 1970, the Supreme Court stated that it required to hear further argument. The order made by the Supreme Court on the 29th July, 1971, pursuant to the judgmentspost, declared that Furlong's application was granted and declared that he be "set free forthwith from his present custody under the said warrant but this order is to be subject to any lawful detention he may be undergoing at present in relation to any other matter."

Section 41 in Part III of the Extradition Act, 1965, enacts as follows:—41.—This Part applies in relation to each of the following places, namely, Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands."

Section 43, sub-s. 1, of the Act of 1965 provides as follows:—

"43.—(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, of the Act of 1965 provides that:—

"(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 be brought before a justice of the District Court for the district in which he was arrested, if a justice is immediately available."

Section 47 of the Act of 1965 enacts as follows:—

"47.—(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 remand him until so delivered.

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

(3) In any case where the Court does not make an order under subsection 1, the Court shall order the person named or described in the warrant to be discharged.

(4) The Court shall have the same powers of adjournment and remand as if the person concerned were brought before the Court charged with an indictable offence.

(5) No appeal shall lie to the Circuit Court against an order of the Court under this section."

Section 48, sub-ss. 1 and 2, in Part III of the Act of 1965 states that:—

"(1) A person to whom an order under section 47 relates shall not, except with his consent given before a justice of the District Court or a peace commissioner, be delivered up under the order until the expiration of fifteen days from the date of the order.

(2) If within that period an application is made by him or on his behalf for an order of habeas corpus or for his release under section 50, he shall not be delivered up while the application is pending."

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

In respect of offences alleged to have been committed in England, extradition is governed by the provisions of Part III of the Extradition Act, 1965. The proceedings are conducted in the District Court, and the order which the District Justice makes under s. 47, sub-s. 1, of the Act of 1965 is for the delivery of the accused at some convenient point of departure from the State into the custody of the police force of the place in which the warrant has been issued for his delivery to that place, and for his remand until so delivered. Sub-section 2 of s. 47 provides, however, that an...