Wyatt v McLoughlin

JurisdictionIreland
CourtSupreme Court
Judgment Date14 Nov 1974
Docket Number[1973 No. 196 Sp.]

Supreme Court

[1973 No. 196 Sp.]
Wyatt v. McLoughlin
In the Matter of the Extradition Act, 1965: DONAL WYATT
Plaintiff
and
PATRICK G. McLOUGHLIN
Defendant.

Criminal law - Extradition - Evidence - Corresponding offence - Form of order - Special summons - Defendant - Extradition Act, 1965 (No. 17), ss. 47, 50, 55.

Special Summons.

On the 17th September, 1973, the plaintiff issued a special summons in the High Court claiming certain declarations and an order discharging an order of the District Court made on the 5th September, 1973. The defendant was an Assistant Commissioner of the Garda Síochána1 and he had endorsed for execution in Ireland a warrant dated the 21st August, 1973, which had been issued by a Justice of the Peace in England for the arrest of the plaintiff on a certain charge. As stated at p. 393post, the claim endorsed on the summons was treated as a claim for an order under s. 50 of the Extradition Act, 1965, directing the release of the plaintiff.

The relevant provisions of the Extradition Act, 1965,infra, are in Part III of that Act which does not contain any provision similar to the rule of speciality in Part II of the Act at section 20: see The State (Holmes) v. FurlongIR.2

Section 43, sub-s. 1, of the Extradition Act, 1965, provides:—

"1) Where —

  1. (a) a warrant has been issued by a judicial authority in a place in relation to which this Part applies for the arrest of a person accused

    or convicted of an offence under the law of that place, being an indictable offence or an offence punishable on summary conviction by imprisonment for a maximum period of at least six months, and
  2. (b) on production of the warrant to the Commissioner of the Garda Síochána it appears to the Commissioner that the person named or described therein may be found in the State,

the Commissioner shall, subject to the provisions of this Part, endorse the warrant for execution."

Section 47, sub-ss. 1-3, of the Act of 1965 provides:—

"(1) Where a person named or described in a warrant is before the District Court in pursuance of this Part that Court shall, subject to the provisions of this Part, 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, and remand him until so delivered.

(2) An order shall not be made under subsection (1) if it appears to the Court that the offence specified in the warrant 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.

(3) In any case where the Court does not make an order under subsection (1), the Court shall order the person named or described in the warrant to be discharged."

Section 50, sub-ss. 1 and 2, of the Act of 1965 provides:—

"(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.

(2) A direction under this section may be given by the High Court where the Court is of opinion that . . . (c)the offence specified in the warrant 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 . . ."

Section 54, sub-s. 2, of the Act of 1965 provides:—

"(2) A certificate, appearing to be given by the authority or the clerk or other officer of the authority by which a warrant was issued, that the offence to which it relates is, by the law of the place concerned, an indictable offence and not also a summary offence, or that it is a summary offence punishable by a specified maximum period of imprisonment may, without further evidence, be accepted by the Commissioner as evidence of the matters so certified." Section 55, sub-s. 1, of the Act of 1965 provides:— "(1) In any proceedings, unless the court sees good reason to the contrary . . . (c) a certificate appearing to be given in accordance with subsection (2) of section 54 may be admitted as evidence of the matters certified therein, without further evidence." By s. 42 of the Act of 1965 the terms "Commissioner of the Garda Síochána" and "Commissioner" include a deputy Commissioner and an Assistant Commissioner.

A warrant was issued in England for the arrest of the plaintiff on a certain charge; the warrant was produced to the police in Ireland and was endorsed for execution there pursuant to Part III of the Extradition Act, 1965. The plaintiff was arrested and brought before the District Court in Ireland. The offence which it was alleged the plaintiff had committed in England was described in the warrant in terms which were equivalent to a definition of the crime of larceny in Irish law and the description was followed by the words "and did thereby steal the said lorry contrary to s. 1 of the Theft Act, 1968." Section 47 of the Act of 1965 authorised the District Justice to make an order directing that the plaintiff be delivered into the custody of a member of an English police force for conveyance to England, but sub-s. 2 of s. 47 prohibited the making of such an order if it appeared to the District Justice that "the offence specified in the warrant" did not correspond with any offence under Irish law. The District Justice made an order pursuant to s. 47 of the Act of 1965 which recited that it appeared to him that the offence specified in the warrant corresponded with an indictable offence under Irish law"contrary to the Larceny Act, 1916." The plaintiff issued a special summons and claimed an order of the High Court pursuant to s. 50 of the Act of 1965 directing that he should be released from custody.

Held by Finlay J., in dismissing the claim, 1, that an examination of the English Act of 1968 showed that all the essential ingredients of the crime of larceny in Irish law had their counterparts in the Act of 1968 and that, accordingly, the offence specified in the warrant corresponded with larceny under Irish law.

2. That the order of the District Justice should have contained a statement specifying the particular offence under Irish law to which the offence specified in the warrant corresponded in the opinion of the District Justice but that, as there was a corresponding offence in Irish law, the omission of such statement did not invalidate the order.

3. That the fact that the offence specified in the warrant might be established by proof of matters other than those indicated in the warrant was not a reason for refusing to make an order under s. 47, sub-s. 1, of the Act of 1965.

On appeal by the plaintiff it was

Held by the Supreme Court (FitzGerald C.J., Walsh, Budd, Henchy and Griffin, JJ.), in disallowing the appeal, 1, that the requirement that the offence in respect of which the warrant was issued was an offence under English law of the class mentioned in s. 43 of the Act of 1965 had been established by a certificate in accordance with s. 54, sub-s. 2, of that Act; that the statement in the warrant of the particulars of the complaint made against the plaintiff in England must be accepted as a truthful statement as there was no reason for doubting that statement; and that it was immaterial whether or not the sole method under English law of establishing the offence specified in the warrant was by proof of the allegations appearing in the warrant.

2. That the particulars in the warrant of the offence specified therein (exclusive of the reference to the Theft Act, 1968) were sufficient to establish that such offence corresponded with the crime of larceny under Irish law.

The State (Furlong) v. KellyIR [1971] I.R. 132 considered.

3. That, for the purpose of deciding whether or not there was a corresponding offence under Irish law, it was not part of the function of the court to interpret or examine English law.

4. That the order of the District Justice should have identified the corresponding offence under Irish law but that the failure to do so did not invalidate the order.

Cur. adv. vult.

Finlay J.:—

This is a claim brought by the plaintiff pursuant to s. 50 of the Extradition Act, 1965, on special summons for a declaration3 that the charge, the subject matter of an order made by the District Court on the 5th 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 s. 47 of the Act of 1965 and is therefore invalid.

The plaintiff was brought before the District Court at Cork City on the 5th September, 1973, on foot of a warrant dated the 21st August, 1973, which alleged 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." 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 for 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 indictable offence, to wit, contrary to the Larceny Act 1916."

Two questions arise as to the validity of this order of the District Justice. First, there is the challenge made on behalf of the plaintiff upon the...

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