The State (McFadden) v Governor of Mountjoy Prison. (No. 1)

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington
• Judgment Date: 01 January 1981
• Neutral Citation: 1980 WJSC-HC 2741
• Docket Number: No. 300 S.S/1980
• Court: High Court
• Date: 01 January 1981

1980 WJSC-HC 2741

No. 300 S.S/1980

State (McFADDEN) v. GOVERNOR MDUNTJOY PRISON

IN THE MATTER OF THE COURTS OF JUSTICE ACTS 1984 TO 1962:

AND IN THE MATTER OF THE EXTRADICTION ACT, 1965:

AND IN THE MATTER OF ARTICLE 40 OF THE CONSTITUTION:

AND IN THE MATTER OF THE EUROPEAN CONVENTION OF HUMAN RIGHTS

THE STATE (AT THE PROSECUTION OF CHARLES CARRYMcFADDEN)

-v-

THE GOVERNOR OF MOUNTJOY PRISON

1 Judgment of Mr. Justice Barringtondelivered the 6th day of August 1980

2 The Prosecutor in this Case is presently held in Mountjoy Prison, pursuant to the provision of an Order for delivery at point of Departure and Committal Warrant dated the 25th day of June. 1980, made by District Justice McGrath in the Dublin Metropolitan District Court.

3 The Prosecutor's complaint is that the said Order of the learned District Justice is invalid because of the alleged unfairness of the procedures which ante-dated the making of the Order and that his present custody is therefore unlawful.

4 I granted an Order under Article 40 of the Constitution directing the Governor of Mountjoy Prison to certify in writing the grounds for the detention of the Prosecutor on the 9th July, 1980.

5 The Governor certified in writing the ground for the Prosecutor's detention on the 15th day of July, 1980. He produced a copy of the said Order for Delivery at Point of Departure and he later filed an Affidavit by Detective-Sergeant Cormac Gordon, setting out the circumstances surrounding the Prosecutor's arrest, and describing the course of the proceedings in the District Court.

6 The matter came on for hearing before me on the 1st August, 1980, and I heard evidence from the Prosecutors and from Detective Sergeant Gordon. There was a conflict of fact between Detective Sergeant Gordon and the Prosecutor in relation to some matters, but this conflict does not appear to be material for the purposes of my present decision.

THE FACTS

7 The Prosecutor is a British subject who has been living in Ireland since January, 1980. On the 25th June, 1980, he and his wife were living in a flat at 191, Clontarf Road, Dublin. Some time between 6.30 and 7 a.m. on that morning, the Prosecutor was in bed when he heard a knock at the door. He answered the door and found four policemen there, including Detective Sergeant Gordon. Detective Sergeant Gordon identified himself and informedthe Prosecutor that he had a warrant for his arrest in respect of an offence alleged to have been committed in England. The Prosecutor says that he put out his hand indicating a desire to see the Warrant. Detective-Sergeant Gordon denies this, but admits that he did not at any stage give the Prosecutor the Warrant or a copy of it, though he had, at all times, three copies of the Warrant in his possession.

8 Detective-Sergeant Gordon says, and I accept, that he read over the Warrant to the Prosecutor. By the term "Warrant". Detective-Sergeant Gordon meant the complex four-page document consisting of an Affidavit from a Detective-Sergeant Cooke identifying the signature of the London Magistrate who had issued the Warrant; the Certificate of the Clerk of the Court at West London certifying that the offence charged 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; the Warrant itself; and the authorisation from the Commissioner authorising the execution of the Warrant in the State by a member of the Garda Siochana. I accept that Detective-Sergeant Gordon in fact did readthroughthis document from page 1 to page 4, to the Prosecutor, though I doubt if this was, in the circumstances, a satisfactory way of communicating the contents of these complex documents.

9 The Prosecutor was taken from his flat to the Bridewell where he arrived about 8 a.m. on the same morning.

10 In the Bridewell, Detective-Sergeant Gordon again read the English Warrant to the Prosecutor.

11 Later, the Prosecutor was taken before the District Court and the Case came on for hearing about 12 mid-day. According to Detective-Sergeant Gordon, the proceedings before the District Court lasted about 12 or 15 minutes. The learned District Justice read out the English Warrant to the Prosecutor and mentioned the two Certificates. He asked the Prosecutor if he had anything to say, and if he consented to go back to England, to which the Prosecutor replied. "No". The Prosecutor added that he was innocent of the charge. The learned District Justice made the Order for Delivery at Point of Departure. The Prosecutor applied for, and was refused bail. I am satisfied that the learned District Justice informed the Prosecutor of his right to make an Application under Section 50 of the Extradition Act, 1965, and ofhis right to apply for habeas corpus. It does not appear, however, that the District Justice asked him if he wished to be legally represented or if he wanted an adjournment to obtain legal representation oradvice.

12 The Prosecutor admits that the District Justice told him that he could not be removed from the jurisdiction for 15 days without his consent but, otherwise, he claims that he was disorientated by the happenings of the morning and that he did not properly understand what was going on in the District Court. I am satisfied that he played no effective part in the proceedings.

13 Later on the same day, his wife visited him and, through her, he contacted a Free Legal Aid Centre. He discovered that legal aid was not available from the State in extradition proceedings in Ireland, but he was put in contact with his present Solicitor, and his mother in Scotland was contacted and provided the funds to bring the present Application. I have no doubt that had the District Court proceedings been put back he would have obtained legal representation for thoseproceedings.

14 Essentially, the Prosecutor's complaints are that he never saw the documentation on foot of which the extraditionproceedings were instituted; that he was never asked if he wished to be legally represented, and was never given an opportunity to obtain legal advice; that he was effectively excluded from participating in the proceedings which decided on his extradition; and that as a result the procedures in the District Court were basically unfair and the Order of the District Justice consequently invalid.

EXTRADITON PROCEEDINGS

15 Extradition proceedings have far-reaching effects for the person extradited. Not only may be lose his liberty but he may also be separated from his family and friends and sent to another country out of the jurisdiction of these Courts. Provided that the person arrested is the person named in the Warrant the fact that he may be innocent of the offence alleged against him is irrelevant so far as the extradition proceedings are concerned. Section 53 of the Extradition Act provides that if a person in respect of whom an Extradition Order has been made under Section 47 is not delivered up under the Order within one month after it was made, the High Court, upon Application by or on behalf of that person, may, unless reasonable cause is shown for the delay, orderhim to be discharged. It would therefore appear that a person, against whom extradition proceedings are instituted, is on risk of being kept in custody in the State, for one month even though he is innocent of the charges alleged against him.

16 In a sense extradition proceedings are ancillary to criminal proceedings. So far as the country seeking extradition is concerned, extradition proceedings are merely a means of executing a Warrant for the arrest of the person sought to be extradited, and of making him amenable to the Courts of that country. So far as the extraditing country is concerned, however, the proceeding cannot be regarded simply as a method of executing the Warrant of the Courts of a foreign country. Under the provisions of...