Wilson v Sheehan

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 23 May 1979
• Neutral Citation: 1978 WJSC-SC 2487
• Court: Supreme Court
• Docket Number: [1977 No. 497 Sp.],No. 497 S.P./1977
• Date: 23 May 1979

WILSON v. SHEEHAN

WILLIAM MATTHEW WILSON

v.

JOHN SHEEHAN

1978 WJSC-SC 2487

O'Higgins C.J.

Henchy J.

Griffin J.

No. 497 S.P./1977

No. 179/1978

THE SUPREME COURT

1 Judgment of Henchy J. delivered the 23rd May 1979. [nem. Diss.]

2 The warrant on foot of which extradition is sought in this case describes the offence by alleging that the plaintiff in the present proceedings

3 "On the 14th day of February 1974 at the Civic Centre, Building site, Lampton Road, Hounslow, Middlesex, did rob Michael Barker of £281 in cash and immediately before doing so used force, to wit personal violence, to the said Michael Barker".

4 In a separate entry in a separate paragraph in the warrant the offence is said to be contrary to section 8 of the Theft Act 1968.

5 It is not disputed that the offence so described in the warrant is an extraditable offence in the place where the warrant was issued. What is in question - and this is the sole matter in issue in this appeal - is whether (as is required for the issue of a direction under s.50(2)(c) of the Extradition Act, 1965) the offence so specified "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". The fact that this test is expressed in a negative form (both in s.47(2) and in s.50(2)(c)) is not indicative of where the onus of proof lies; it merely lays down that, for the allowance of this exemption from extradition, the court must be of opinion that in the circumstances of the case there does not exist dual criminality to the extent required for the specified correspondence of offences.

6 It is to be noted that the requirement for extradition is satisfied when correspondence is shown between the specified offence and any offence which either is an indictable offence or carries a punishment on conviction of a maximum term of six months imprisonment. Consequently, if the ingredients of the offence as specified in the warrant would, if laid as the ingredients of a criminal charge in this State, constitute any corresponding offence which either is indictable or carries on summary conviction a maximum term of at least six months imprisonment, the requirement will have been satisfied.

7 When this case was in the District Court the District Justice held that the offence specified in the warrant corresponds with robbery with violence contrary to the Larceny Act, 1916. When the plaintiff instituted the present proceedings in the High Court, seeking a direction that he be released under s.50(2)(c) of the Extradition Act, 1965,McMahon J. rejected that conclusion. Instead, following the earlier High Court decision of Finlay P. in Whyte v.Sheehan (unreported), he held that the specification in the warrant was not sufficient to identify a corresponding offence in the law of this State. So he directed the release of the plaintiff. It is from that order that this appeal has been taken.

8 In Whyte v. Sheehan the offence specified in the warrant was an assault of a named person with intent to rob him contrary to section 8 of the Theft Act 1968. Finlay P. held that specification to be inadequate. He said:

9 "Both of those words "assault" and "rob" may within the precise words which I have quoted from the decision of Mr. Justice Walsh in Wyatt v. McLoughlin, though having identical names in the law of this country, constitute quite different criminal offences in England".

10 The passage in the judgment of Walsh J. in Wyatt v. McLoughlin 1974 I.R. 378, 398 on which the President relied is this:

11 "For the reasons stated in , Furlong's Case, it is necessary that either the warrant or some other document accompanying it should set out sufficient information as to these acts to enable the courts of the State to identify the corresponding offence, if any, in our law. It cannot be sufficient simply to use the name by which the crime is known, or alleged to be known, in the requesting country even though that same name may be used in this country as the name of a crime, because the acts complained of, although having identical names, may constitute quite different criminal offences in different countries or, indeed, no offence at all in one of them".

12 What was being stressed in that passage was that the required correspondence of offences is not shown by the mere proof that the offence specified in the warrant has the same name as that of an offence in this State. It is the essential factual ingredients that determine whether two offences have the necessary correspondence....