Wyatt v McLoughlin

 
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1966 WJSC-HC 396

196 Sp./1973
Wyatt v. McLoughlin
IN THE MATTER OF DONAL WYATT AND SECTION
50 OF THE EXTRADITION ACT1965

BETWEEN

DONAL WYATT
Plaintiff

and

PATRICK G. McLOUGHLIN
Defendant
1

Judgment of Mr. Justice Finlay delivered on the 14th day of November 1973 .

Mr. Justice Finlay
2

This is a claim brought by the plaintiff pursuant to Section 50 of the Extradition Act1965on special summons for a declaration that the charge, the subject matter of an order made by the District Court on its 5th of September 1973, does not correspond with any offence under Irish Law and for a declaration pursuant to the provisions of the section that the said order of the Justice of the District Court does not comply with the provisions of Section 47 of the Extradition Act1965and is therefore invalid.

3

The plaintiff was brought before the District Court at Cork City on the 5th of September 1973 on foot of a warrant dated the 21st of August 1973 which alleged that "on the 27th of October 1972 in the county borough of Stockport, England he did fraudulently and without claim of right made in good faith, take and carry away a Ford Tipper lorry registered number ONE 219H of the value of £3,000 the property of Allinson Limited, without the consent of the owner thereof and with the intent at the time of such taking permanently to deprive the said owner of it and did, thereby steal the said lorry contrary to Section 1 of the Theft Act 1968."

4

By order of the 5th of September 1973 the District Justice ordered the delivery of the plaintiff at Cork Airport into the custody of a member of the Cheshire Constabulary of conveyance to the Magistrates Court, Warren Street, Stockport, Cheshire. In the order so directing, the following recital occurs "and whereas it appears to me that the offence specified in the said warrant corresponds with an offence under the law of the State which is an indicatable offence to wit contrary to the Larceny Act 1916."

5

Two questions arise as to the validity of this order of the District Justice and they are firstly the challenge made on behalf of the plaintiff upon the grounds that the offence as set out in the warrant does not correspond with an indictable offence known to the law of this State and that the finding by the District Justice to that effect was wrong and that therefore his jurisdiction to make the order under Section 47 did not exist. The second is a point raised by me at the hearing and that is to say whether the recital which I have just quoted is a bad or inadequate recital having regard to the fact that it does not specify an offence under the Larceny Act to which the District Justice was satisfied the offence specified in the warrant before him corresponded and the subsidiary question as to whether if that recital is defective or inadequate it touches the validity of the order made by the District Justice.

6

I will deal with the latter question first.

7

Section 47 (1) of the Extradition Act1965provides for the making of an order by the District Court for the delivery of a person named or described in a warrant at some convenient point of departure from the State into the custody of a member of the police force of the place in which the warrant has been issued and sub-section 2 of that section provides that an order should not be made under sub-section 1 if it appears to the Court that the offence specified in the warrant does not correspond with an 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.

8

It is of some importance that the provisions of Section 47 sub-section 2 which I have just quoted are negative in their terms and are expressed as a prohibition against the making of what could loosely be described as an Extradition Order in a case where the Justice is satisfied that the offence in the warrant doesnotcorrespond with an offence of a specified type within the law of the State.

9

I am informed by Counsel that prior to the decision of the Supreme Court in the case of the State (Furlong) v Kelly reported at 1971 Irish Reports 132 that the form of order under Section 47 provided for use in the District Court contained no provision for a recital of any consideration or decision by the District Justice of the question as to whether the offence charged corresponded with an indictable offence under the law of the State. In the judgment of Mr. Justice Walsh in that case however, which formed one of the majority judgments of the Supreme Court, he stated at page 142 as follows "In my view, the District Justice's order made under Section 47 of the Extradition Act,1965, should contain a statement of the District Justice's finding that the offence specified in the English warrant does correspond with an offence under the law of this State, and should set out the offence which, in his opinion, is the corresponding offence under the law of this State. If it should appear, on application to the High Court for an order of habeas corpus, that the offence under the law of this State found by the District Justice is not in fact a corresponding offence under the law of this State, I do not think that such a position would be fatal to the validity of his order provided that it could be shown in the High Court or on appeal in this Court, as the case may be, that the offence in the warrant did correspond with some offence under the law of this State."

10

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