Wyatt v McLoughlin

Judgment Date14 November 1974
Date14 November 1974
Docket Number[1973 No. 196 Sp.]
CourtSupreme Court
Ireland, Supreme Court.

(FitzGerald C.J., Walsh, Budd, Henchy and Griffin, JJ.)


The individual in international law — Extradition — Conditions of extradition — Extraditable crimes — Condition of double criminality — Application — Whether necessary to examine law of the requesting State — Whether legal qualification, name or ingredients of the offence in the law of the requesting State relevant — Procedure of extradition — Form of the order — Necessity of specifying the offence — The law of Ireland

Summary: The facts:—An application was made for the extradition of the plaintiff on the basis of an English warrant charging him with contravening Section 1 of the English Theft Act 1968. The plaintiff contended that the offence as alleged did not correspond to any offence in Ireland and further that unnecessarily detailed statements had been made in the charge for the purpose of satisfying the rule of double criminality (which applied in the matter of extradition of offenders between England and Ireland). The plaintiff also challenged the order of the District Court allowing his extradition, on the ground that the order did not particularise the Irish offence.

Held:—(1) In deciding whether the condition of double criminality was satisfied or not the court was not concerned with the construction of English law.

(2) The fact that it might not be necessary to prove all the facts stated in the warrant for the purpose of establishing the offence in English law was immaterial. The statement of particulars contained in the warrant must, in the absence of evidence to the contrary, be accepted as a truthful statement.

(3) The particulars of the offence were sufficient to establish that it corresponded with the crime of larceny in Ireland.

(4) The order of the District Court should have specified the Irish offence but the failure to do so did not invalidate the order.

The following is the text of the judgments of the Court:

FitzGerald C.J.:—

I have read the judgments of Mr. Justice Walsh, Mr. Justice Henchy and Mr. Justice Griffin and I agree with them.

Walsh J.:—

On the 21st August, 1973, Archibald Whitesmith, a Justice of the Peace in the county borough of Stockport, England, issued a warrant for the arrest of the plaintiff upon a charge that ‘on the 27th 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.’

The warrant was transmitted to this country for endorsement and execution in accordance with Part III of the Extradition Act, 1965. The defendant, who is an Assistant Commissioner of the Garda Síochána, endorsed the warrant and it was duly executed by the arrest of the plaintiff. On the 5th September, 1973, the plaintiff was brought before the District Court sitting in Cork City and the District Justice, being satisfied with the proofs offered, made an order pursuant to s. 47 of the Act of 1965 directing that the plaintiff should be delivered at Cork Airport into the custody of a member of the Cheshire Constabulary for conveyance to the Magistrate's Court at Warren Street, Stockport, Cheshire, England. He also directed that the plaintiff should be lodged in custody in Limerick Prison pending the execution of the extradition. The District Justice in his order recites that it appeared to him that the offence specified in the warrant corresponded with an indictable offence under our law being one which was ‘contrary to the Larceny Act 1916.’

On the 17th September, 1973, the plaintiff issued the present proceedings by way of special summons against the defendant and in the special endorsement of claim the plaintiff claimed, first, a declaration pursuant to s. 50 of the Act of 1965 that the charge, the subject matter of the order of the District Court made on the 5th September, did not correspond with any offence under Irish law and, secondly, a declaration pursuant to the provisions of s. 50 of the same Act that the order of the District Justice did not comply with the provisions of s. 47 of the Act; the plaintiff further claimed that the said order of the District Justice should be discharged.

In my view, a declaration is not the appropriate remedy to seek and is not a form of relief which can be claimed upon a special summons. It is perhaps understandable that it appeared in this form because the rules of court had only been changed in July, 1973, to permit the bringing of applications for orders under s. 50 of the Act of 1965 by way of special summons; before that date they had been brought by plenary summons in which a declaration can be sought. The present proceedings were brought in reality for an order pursuant to the provisions11 of s. 50, sub-s. 2 (c), of the Act of 1965. Section 50, sub-s. 1, of the Act provides that a person arrested under Part III of the Act shall be released if the High Court so directs in accordance with that section; and sub-s. 3 of that section provides that a direction of the High Court under the section may be given on the application of the person concerned. In my view, the proper relief to be sought on a special summons in these cases is a claim for an order of the High Court directing the release of the plaintiff. This procedure by way of special summons was inaugurated by the Rules of the Superior Courts (No. 1), 1973, which require that the proceedings should be served upon the Garda Commissioner, Deputy Commissioner, or Assistant Commissioner, who has endorsed the warrant for execution. That is obviously a necessary thing to do because the person endorsing the warrant is responsible for the execution of the warrant and, therefore, he must be given notice of proceedings which are brought to direct the release of the person so arrested. However, the Rules do not state that such person shall be the defendant and, in view of the fact that s. 50 provides for statutory relief being given by an order directing the release of the person so detained, it is obvious that such an order, if and when made, must be directed to the person having custody of the plaintiff if he is then in custody. In my view, the custodian is the person who should be the defendant

because he may also wish to be heard upon the matter. However, the form of the relief sought was not made the subject of any argument or submission and for the purposes of this particular case the relief sought may be construed as being an application for an order directing the release of the plaintiff.

The matter came on for hearing before Mr. Justice Finlay in the High Court on the 5th November, 1973, and having heard the submissions on both sides he directed that the application be dismissed. He held that the offence set out in the warrant corresponded with simple larceny where it is provided for by s. 2 of the Larceny Act, 1916, in our law. From that order the plaintiff has appealed to this Court to reverse the decision of the High Court and to make the order sought for the release of the plaintiff. In support of the appeal it is submitted that the High Court judge was wrong in holding that the offence charged corresponded with simple larceny under our...

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