Wheeler v Culligan

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 28 July 1989
• Docket Number: [1989 No. 150 J.R.]
• Date: 28 July 1989

Wheeler v. Culligan

John Wheeler

Applicant

and

Patrick Culligan, District Justice Liam McMenamin, District Justice Daniel Shields and The Attorney General

Respondents

[1989 No. 150 J.R.]

High Court

Extradition - Warrant - Execution - Power of Garda Commissioner to endorse for execution arrest warrants issued in United Kingdom - Power of Attorney General to direct that warrant not be endorsed for execution - Requirement that Attorney General be of opinion that there is clear intention to prosecute and that intention is founded on sufficient evidence - Whether Attorney General exercising judicial power - Whether power unconstitutionally vested in Attorney General - Extradition Act, 1965 (No. 17), Part III - Extradition (Amendment) Act, 1987 (No. 25), s. 2 - Constitution of Ireland, 1937, Article 34, s. 1.

Part III of the Extradition Act, 1965, applies to Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands. Section 43 of that Act provides that where a warrant has been issued by a judicial authority in one of those places for the arrest of a person accused or convicted of an offence under the law of that place, the Commissioner of the Garda Síochána shall, subject to the provisions of the Act, endorse the warrant for execution in the State. By s. 47 of that Act, where a person named or described in a warrant is brought before the District Court, the court may 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.

Section 2 of the Extradition (Amendment) Act, 1987, amends Part III of the Act of 1965 by inserting, inter alia, the following two sections:—

"44A.-(1) A warrant for the arrest of a person accused of an offence under the law of a place in relation to which this Part applies shall not be endorsed for execution under this Part if the Attorney General so directs.

(2) A direction of the Attorney General under this section may be revoked by the Attorney General at any time if he becomes of the opinion referred to in section 44B.

• 44B.- A direction of the Attorney General under section 44A shall be given unless the Attorney General, having considered such information as he deems appropriate, is of 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."

The applicant was arrested on foot of warrants issued by a judicial authority in England which were endorsed for execution by the first respondent, a Deputy Commissioner of the Garda Síochána, under the provisions of the Act of 1965. Orders for his delivery at a place of departure from the State into the custody of a member of an English police force were made by the second and third respondents. On the applicant's application by way of judicial review for a declaration that the provisions of ss. 44A to 44D of the Act of 1965, as inserted by s. 2 of the Act of 1987, were invalid having regard to the provisions of the Constitution on the grounds that they vested a judicial power in an executive officer of the State, it was

Held by Costello J., in refusing the application, 1, that the Attorney General, in considering the information furnished to...