W (Hm) v Ireland & Ag
| Jurisdiction | Ireland |
| Judge | Mr. Justice Costello |
| Judgment Date | 11 April 1997 |
| Neutral Citation | [1997] IEHC 212 |
| Court | High Court |
| Date | 11 April 1997 |
[1997] IEHC 212
THE HIGH COURT
and
AND
Citations:
EXTRADITION ACTS 1965–1987 PARA 11
CONSTITUTION ART 40.3
CONSTITUTION ART 41
EXTRADITION (AMDT) ACT 1987 S2
EXTRADITION ACT 1965 PART III
EXTRADITION ACT 1965 S43
EXTRADITION ACT 1965 S44(A)
EXTRADITION ACT 1965 S44(B)
WARD V MCMASTER 1988 IR 337 1989 ILRM 400
HOUSING ACT 1966
HOUSING AUTHORITIES (LOANS FOR ACQUISITION OR CONSTRUCTION OF HOUSES) REGS 1972 SI 29/1972 REG 12
ANNS V MERTON LONDON BOROUGH 1978 AC 728
MURPHY V BRENTWOOD 1991 AC 389
DONOGHUE V STEVENSON 1932 AC 562
SUNDERLAND V LOUTH CO COUNCIL 1990 ILRM 658
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963
SINEY V DUBLIN CORPORATION 1980 IR 400
CONVERY V DUBLIN CO COUNCIL 1996 3 IR 161
MADDEN V IRISH TURF CLUB 1997 2 IR 184 1997 2 ILRM 148
MCMAHON V AG & REGISTRAR OF FRIENDLY SOCIETIES 1988 ILRM 610
JOHN C DOHERTY TIMBER LTD V DROGHEDA HARBOUR COMMISSIONERS 1993 1 IR 315
HARBOUR ACT 1946 S47
RONDEL V WORSLEY 1969 1 AC 191
GARNETT V FERRANT 1827 6 B & C 611
DEIGHAN V IRELAND 1995 2 IR 56
HILL V CHIEF CONSTABLE OF WEST YORKSHIRE 1989 AC 53
ELGUZUOLI-DAF V COMMISSIONER OF POLICE OF THE METROPOLIS 1995 1 AER 833
NELLES V ONTARIO 60 DLR 4d 103
PROSECUTION OF OFFENCES ACT 1974 S5
RYAN V IRELAND 1989 IR 177
WALSH V IRELAND & AG UNREP SUPREME 30.11.94 1994/13/4279
MESKELL V CIE 1973 IR 121
KEARNEY V MIN FOR JUSTICE 1986 IR 116
MCHUGH V COMMISSIONER OF AN GARDA SIOCHANA 1986 IR 228
BYRNE V IRELAND 1972 IR 241
KENNEDY V IRELAND 1987 IR 587
LOVETT V GOGAN 1995 3 IR 132
HANRAHAN V MERCK SHARP & DOME (IRL) LTD 1988 ILRM 629
CIVIL LIABILITY ACT 1961
O'BRIEN V KEOGH 1972 IR 144
SWEENEY V DUGGAN 1991 2 IR 274
Synopsis:
Negligence
Action for damages for emotional upset, stress and psychiatric problems; alleged delay in giving of direction by A.-G. for endorsement of extradition warrant for execution under Sections 44A & 44B, Extradition Acts, 1965 & 1987; whether A.-G. owed plaintiff duty of care at common law to consider extradition request; whether defendants owed plaintiff a constitutional duty under Art 40.3 to consider request and process it speedily Held: No common law duty as no relationship between A.-G. and victims of crimes referred to in warrants; even if sufficient relationship of proximity, contrary to public policy to impose duty on A.-G.; no constitutional duty owed to victims; no discrete cause of action for breach of right to bodily integrity High Court: Costello P. 11/04/1997) [1997] 2 IR 141
HMW (nee F) v. Ireland & Ors.
Judgment of Mr. Justice Costello delivered the 11th day of April, 1997.
(1) On the 23 April 1993 nine warrants for the arrest of one Father John Gerard "Brendan" Smyth were issued in Northern Ireland. They related to sexual offenses alleged to have been committed by the accused in Northern Ireland between the years 1982 and 1987. The warrants were forwarded to the Commissioner of An Garda Siochana for execution by him pursuant to the provisions of the Extradition Act, 1965(as amended), the accused at that time being resident in the State. He, in turn, forwarded them to the office of the Attorney General (as he was required to do under the Act) where they were received on the 30 April 1993. Under the provisions of the Act, as amended (provisions which will be considered in greater detail later) the Attorney General is required to give a direction that the Commissioner should not endorse the warrants for execution unless the Attorney General, having considered such information as he considers appropriate, is of the opinion that (a) there is a clear intention to prosecute or to continue the prosecution of the person whose extradition is requested and (b) such intention is founded upon the existence of sufficient evidence.
(2) The plaintiff in these proceedings and other members of her immediate family and relatives had been victims of the accused's sexual crimes to which the warrants related.
(3) Before the Attorney General had given any direction to the Commissioner relating to the endorsement of the warrants the office of the Attorney General was informed on the 6 December 1993 that the accused intended to return to Northern Ireland to stand trial in respect of the charges referred to in the warrants. He did so on the 21 January, 1994, on which day he appeared at Belfast Magistrates Court. On the 28 June 1994 he was convicted at Belfast Crown Court of 17 charges of sexual abuse (in respect of some of which the plaintiff had been a victim) and was sentenced to 4 years imprisonment.
(4) By summons of the 1 June 1995 the plaintiff instituted these proceedings in which she joined Ireland, the Attorney General, and the Government of Ireland as defendants. In her Statement of Claim she pleaded that the Attorney General owed her a duty of care and/or "a constitutional obligation" to consider the execution requests and speedily to process same in order to ensure that the said Father Smyth was quickly brought to justice". It was claimed that in breach of the said duty of care and in breach of the said constitutional obligation the Attorney General "wrongfully and without lawful excuse failed, neglected and refused to endorse the said warrants for execution within the State", (paragraph 10). It was further pleaded that a similar statutory duty was imposed on the Attorney General by the provisions of the Extradition Acts 1965and 1987 (paragraph 11). She claims that as a result of the breaches of duty, breaches of constitutional obligation and duty and breach of statutory duty she suffered loss and damage and that the loss and damage was a foreseeable consequence of the wrongful acts and omissions of the Attorney General (paragraph 12). She says that the failure to "endorse the warrants for execution and the delays in bringing the accused to trial caused her enormous shock and distress, that the continuing emotional upset and stress and consequential psychiatric problems caused by the sexual abuse were greatly aggravated by the failure of the Attorney General to take adequate steps to endorse the warrants for execution and bring the perpetrator of the offenses to justice. She claims damages for the personal injuries she suffered.
(5) A defence denying liability was filed on behalf of the defendants on the 10 July 1995.
On the 11 November 1996 it was ordered that without further pleadings the following preliminary issues should be tried;
(a) Whether the second named defendant (the Attorney General) owed to the plaintiff a duty of care at common law to consider the said request as is alleged by the plaintiff at paragraph 10 of the Statement of Claim.
(b) Whether the defendants or any of them owed to the plaintiff a constitutional duty or obligation under Article 40.3 and/or Article 41 of the Constitution of Ireland or otherwise to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff at paragraphs 10 and 13 (a) of the Statement of Claim herein.
(c) Whether the second named defendant owed to the plaintiff a duty by reason of the provisions of the Extradition Acts, 1965– 1987(and in particular by reason of section 2 of the Extradition (Amendment) Act, 1987) to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff at paragraph 11 of the Statement of Claim herein".
To adjudicate on these issues I must firstly refer to the relevant statutory provisions.
Special arrangements are made in Part 3 of the 1965 Act relating to the extradition of accused persons pursuant to requests from inter alia Northern Ireland. Where a warrant has been issued by judicial authority in Northern Ireland for the arrest of a person accused in Northern Ireland of an offense as specified in the section and if on production of the warrant to the Commissioner of the Garda Siochana it appears to the Commissioner that the person named in the warrant may be found in this State then the Commissioner is required, subject, to the provisions of Part III of Act, to "endorse the warrant for execution" (section 43).
The Act contained restrictions on endorsement in section 44 which are not relevant for the purposes of this case. But a further restriction was enacted by section 2 of the Extradition (Amendment) Act 1987which amended Part III of the 1965 Act by inserting new sections as follows;
This provides that a warrant for the arrest of a person accused of an offence in Northern Ireland "shall not be endorsed for execution under this part if the Attorney General so directs".
This provides that a direction of the Attorney General under section 44(A) not to endorse the warrant.
"shall be given unless the Attorney General, having considered such information as he deems appropriate, is of the opinion that -
(a) there is a clear intention to prosecute or, as the case may be, to continue the prosecution of, the person named or described in the warrant concerned for the offence specified therein in a place in relation to which this Part applies, and
(b) such intention is founded on the existence of sufficient evidence".
I have the following observations to make on these provisions;
The plaintiff has pleaded that the Attorney General was under a duty "to endorse for execution within the State all extradition warrants emanating from within the United Kingdom" and it was further pleaded that he failed to endorse the warrants referred to in the pleadings. This is not an accurate description of the Attorney General's...
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