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1. It is alleged against the Plaintiff in these proceedings that in a 47 day period between the 4th November, 1988 and 22nd December, 1988, in England, he had in his possession or under his control an explosive substance, in the form of a movement activated improvised explosive device, with intent to thereby to endanger life or cause serious injury to property in the United Kingdom or to enable any other person so to do. It is further alleged that in the same period the Plaintiff conspired with Nicholas Robert Neil Mullen and others to cause, by explosive substances, explosions of a nature likely to endanger life or cause serious injury to property in the United Kingdom.

2. In giving oral evidence relating to his application for a Certificate under the Attorney General’s Scheme, the Plaintiff stated that he returned from London, where he had gone in the summer of 1988, to Ireland, sometime in November 1988. Though no evidence in that behalf was given by the Plaintiff, either orally or on Affidavit, it was accepted by both sides, - or at least the arguments proceeded upon the basis, - that whenever the Plaintiff returned to Ireland he lived here openly. The Plaintiff is now about 35 years of age, he is an unemployed General Operative and is unmarried. His father is living in the greater Dublin area. He has three siblings whose addresses were not given to the Court.

3. In June, 1990 Nicholas Robert Neil Mullen was convicted of offences similar to those alleged against the Plaintiff in these proceedings and was sentenced to a term of 30 years imprisonment. Eamon Wadley was acquitted on related charges.

4. The Plaintiff was arrested in this State on the 29th June, 1994 at Swanlinbar, in the County of Cavan, and was charged with the unlawful possession of firearms contrary to the provisions of Section 30 of the Offences Against the State Act, 1939. He was subsequently convicted of this offence and sentenced to a term of 5 years imprisonment.

5. On the 22nd August, 1994, by Statutory Instrument 220 of 1994, the Extradition (Amendment) Act, 1994, (No. 6 of 1994), became operative in this State. This Act provided that certain offences where no longer to be regarded as ‘political offences’ or ‘offences with a political connection’ for the purpose of extradition to territories which included the United Kingdom.

6. In July, 1995 the Crown Prosecution Service for England and Wales received from the Metropolitan Police a file relating to the Plaintiff.

7. In December, 1995 the Crown Prosecution Service for England and Wales determined that there was a realistic prospect of obtaining a conviction against the Plaintiff.

8. On the 18th December, 1995 warrants were issued by Bow Street Magistrates Court in England for the arrest of the Plaintiff pursuant to the provisions of Section 3(a) and Section 3(b) of the Explosive Substances Act, 1883, as amended by Section 7 of the Criminal Jurisdiction Act, 1975, (England), in respect of the aforementioned allegations.

9. On the 22nd March, 1996 an Assistant Commissioner of An Garda Siochána authorised the execution of these warrants in this State.

10. On the 28th March, 1998 the Plaintiff was released from Portlaoise Prison on the expiry of his sentence and was immediately re-arrested on foot of these warrants.

11. On the 10th April, 1998 at Belfast an Agreement was concluded between the Government of Ireland and the Government of the United Kingdom of Great Britain and a Northern Ireland which has become popularly known as the “Belfast” or “Good Friday” Agreement.

12. Consequent upon the provisions of this Agreement, whereby both Governments agreed to enact appropriate legislation to provide for an accelerated programme for the release of certain, “qualifying prisoners ”, the Criminal Justice (Release of Prisoners) Act, 1998 (No. 36 of 1998), came into operation in this State on the 13th July, 1998.

13. On the 23rd June, 1998, District Judge Malone made Orders pursuant to Section 47(1) of the Extradition Act, 1965, (as substituted by Section 12 of the Extradition (Amendment) Act, 1994), for the delivery of the Plaintiff into the custody of a member of the Constables of the Metropolitan Police for conveyance to Bow Street Magistrates Court, England.

14. On the 24th June, 1998 the Plaintiff issued a Special Summons pursuant to the provisions of Order 98 of the Rules of the Superior Courts, 1986, seeking his release in reliance upon the terms of Section 50 of the Extradition Act, 1965. On the 29th October, 1998 by originating Notice of Motion pursuant to the provisions of Order 84 Rule 18 of the Rules of the Superior Courts, 1986, the Plaintiff sought, consequent upon the leave granted in that behalf by the Order of the High Court, (Mr. Justice McCracken), made the 19th day of October, 1998;

15. These reliefs were sought upon the ground that:-

16. At the hearing before me, Counsel for the Applicant informed the Court that the Applicant was no longer relying upon this ground and an application was made to the Court, pursuant to the provisions of Order 84 Rule 23(2) of the Rules of the Superior Courts 1986, for leave to amend the grounds upon which relief was sought by the substitution of the following grounds:-

17. Having heard legal argument by Counsel representing the Applicant and Counsel representing the Respondents, in an extempore Judgment delivered on the occasion I refused the relief sought, in summary, upon the grounds that:-

18. In these circumstances the only issue remaining to be determined by this Court is the Application by way of Special Summons for relief pursuant to the terms of the Extradition Acts, 1965-1994.

19. The Plaintiff in seeking his release relies principally upon the passage of time between the date of the alleged offences in November and December 1988 and the date of the execution of the warrants on the 28th March, 1998, a period of 9¼ years, which his Counsel submit is contrary to the terms of Section 50(2)(bbb) of the Extradition Act, 1995. His Counsel submit that a delay of this magnitude renders it unjust, oppressive or invidious that he should be delivered up to the Requesting Authority. They further submit that it is a denial of the right of the Plaintiff to fair procedures as guaranteed by Article 40.3.1. and Article 38.1. of the Constitution of Ireland, 1937 and Article 6.1., of the European Convention on Human Rights. They also submit that this Court has an inherent jurisdiction as exemplified by the case of Quinlivan -v- Conroy and Sreenan , (1999) 1 IR 271, (Supreme Court) per O’Flaherty, J., page 280, apart from and in addition to Section 50 of the Extradition Act, 1965, to refuse a request for extradition upon considerations of justice and equity, and that this jurisdiction should be exercised in favour of the Plaintiff.

20. Additionally, the Plaintiff relies upon what he alleges are defects on the face of the Warrants and the Orders of the District Court which have the effect that correspondence is not established between the offences specified in the warrants and offences under the Law of this State, so that he is entitled to be released having regard to the provisions of Section 50(2)(c) of the Extradition Act, 1965.

21. It is submitted on behalf of the Respondents that:-

22. Section 50, subsection 1 and subsection 2 of the Extradition Act, 1965, amended with regard to the latter subsection by Section 9 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, (No. 1 of 1987), by the insertion of an additional subparagraph, “(bb)”, and by Section 2(1) of the Extradition (Amendment) Act, 1987, (No. 25 of 1987), by the insertion of a further subparagraph, “(bbb)”, provides as follows:-

23. The provisions of Section 50(2)(bbb) of the Extradition Act, 1965, were subjected to a careful consideration by Denham, J., in the course of her Judgment in Fusco -v- O’Dea , (No. 2), (1998) 3 I.R., 470, (Supreme Court), where she held as follows, (page 508 of the report):-

24. I adopt this succinct and elegant analysis of the law as expressed in Section 50 subsection (2), (bbb) of the Extradition Act, 1965.

25. In considering whether by reason of the lapse of time since the commission of the alleged offences in November-December, 1988, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver up the Applicant on foot of the warrants executed on the 28th March, 1998, in my judgment, I must have regard not alone to the extent of the delay but also to the reason or reasons for it. It could scarcely have been the intention of the Legislature in framing this subsection that this Court should weigh in the balance in favour of an Applicant a lapse of time which was wholly or substantially due to the conduct of that Applicant. In my judgment the only lapse of time to which this Court may have regard in considering the subsection is such as is not attributable to any significant extent to the Applicant or is due to some unnecessary or blameworthy delay on the part of the Relevant Authorities in the Requesting State and additionally or alternatively the Relevant Authorities in this State.

26. In considering the actual 9¼ year lapse of time in the present case, I adopt the methodology indicated by Denham J., in Dalton -v- The Governor of the Training Unit and Others, (29th February, 2000) (Supreme Court: No. 29/99: unreported/Judgment available), a case of a delay of approximately 2 years and 9 months following the issue of domestic default warrants and their execution, where at page 10 of the Judgment the learned Judge held as follows:-

27. The Plaintiff, in the verifying Affidavit sworn on the 10th November, 1998 grounding the Special Summons avers that the warrants seeking his extradition were issued on the 18th December, 1995, that is 7 years after the latest date of the alleged offences in respect of which his extradition is sought and 18 months after his arrest at Swanlinbar, County Cavan, on the 29th June, 1994 on charges of unlawful possession of firearms. He states that to his knowledge no attempt was made to execute these warrants in the State until the 28th March 1998. He complains that what he describes as, “ a very lengthy ” delay would seriously disadvantage him in the conduct of his defence against the charges made against him in England.

28. Richard Edwin Glenister, Barrister, of the Crown Prosecution Service in a replying Affidavit sworn by him on the 3rd February, 1999, offers no explanation whatever for this delay of 7 years in issuing the warrants, that is between the 22nd December, 1988 and the 18th December, 1995. I must view this unexplained delay in the context of Mr. Mullen and Mr. Wadley having been brought to trial in England in or prior to June, 1990; in the context of contacts between the London Police and the Zimbabwe Central Intelligence Organisation on the 6th January, 1989 and thereafter to secure the summary deportation of Mr. Mullen from Harare to London and in the context of the conviction of Mr. Mullen on the 8th June, 1990 at the Central Criminal Court. The foregoing facts I have ascertained from the Judgment of Lord Justice Rose, in R. -v- Mullen , (1999) 2 Cr App Rep 143. It is also averred by the Plaintiff in his Affidavit sworn on the 10th November, 1998 and not controverted, that Mr. Wadley was jointly charged with Mr. Mullen, “on some counts” and was acquitted.

29. This delay of 7 years in the issuing of the warrants is the first section of time which requires to be addressed in this case.

30. In his Affidavit sworn on the 3rd February, 1999 Mr. Glenister avers that the warrants were issued by Bow Street Magistrates Court on 18th December, 1995 and delivered to An Garda Siochána, “shortly afterwards” and much in advance of the Plaintiff’s release from prison in March, 1998. This is not disputed by or on behalf of the Defendants. Detective Sergeant Michael Heffernan, in an Affidavit sworn on the 4th February, 1999, avers that there was no delay on the part of An Garda Siochána or any other Relevant Authorities in this State in dealing with the request for extradition. He avers that at the time the request for extradition was received the Plaintiff was a convicted person serving a sentence of imprisonment. He further states that notwithstanding the granting of periods of temporary release to the Plaintiff it was the opinion of An Garda Siochána that the warrants could not be executed until the Plaintiff had fully served his sentence and was at liberty.

31. Mr. Forde, Senior Counsel for the Plaintiff, argued at the hearing before me, that this was an error of Law on the part of An Garda Siochána and that the failure to execute the warrants as shortly as possible after they had been received amounted to an unnecessary and blameworthy delay on the part of the Relevant Authorities in this State which was seriously prejudicial to the Plaintiff. This delay of shortly in excess of 2 years and 3 months, between the 18th December, 1995 or shortly thereafter, when the warrants were received by An Garda Siochána and the 28th March, 1998 when the warrants were executed upon the release of the Plaintiff from Prison having served the sentence imposed upon him, constitutes the second section of time to be addressed in this case.

32. The overall delay between the 22nd December, 1988 being the latest date for the commission of the alleged offences charged in the warrants and the 28th March, 1998, the date of execution of the warrants, amounts to a period of slightly in excess of 9 years and 3 months.

33. In my judgment it is not necessary for me to make any determination as regards the second section of time at issue in this case. However, I would not in any event take this period of time into account as a “ lapse of time ” for the purpose of Section 50(2)(bbb) of the Extradition Act, 1965, if it was the only period of delay involved in this case, because the detention of the Plaintiff in prison during this period was a consequence of his own acts. But also, I have not been convinced that the Judgment of Hamilton, C.J., in Fusco -v- O’Dea , (No. 2), (1998) 3 I.R. 470 at 501 and 502, is authority for the proposition that extradition warrants may be executed at any time, however remotely, before the actual expiry of a prison sentence. The Plaintiff has failed to satisfy me, the onus being on him, that what Denham, J., at page 525 of the Report in that Case, described as the, “ normal practice to seek extradition of a prisoner at determination of a prison sentence”, is not also, in the vast majority of cases at least, the correct practice. Indeed, leading Counsel for Mr. Martin accepted in argument that service upon release was the norm, but he submitted that just because it was the norm this could not be used to excuse delay where there was no legal inhibition to a much earlier execution of the warrants and where justice required such earlier execution. In Ellis -v- O’Dea (1991) 1 I.L.R.M., 346 at 373, the then Chief Justice records that it was conceded on behalf of the Applicant in that case that the extradition warrants could not practicably have been executed until after the completion of the sentence been served by the Appellant. I also adopt what was held by Denham J., at page 525 of the Report in Fusco -v- O’Dea (No.2) (above cited), where she said:-

34. However, I consider that there is a distinction to be drawn between a lapse of time entirely or substantially occasioned by the deliberate and voluntary actions of a person in seeking to evade discovery and a lapse of time referable to that person serving a term of imprisonment. In my judgment while the former should always be entirely discounted some regard may be had to the latter in looking at the overall lapse of time, provided always that there is in addition a specific and separate particular lapse of time to be taken into account for which the accused is in no manner to blame or which is due to some unnecessary or blameworthy delay on the part of the Relevant Authorities in the Requesting State or in this State.

35. In my judgment there can be no doubt but that the wholly unexplained lapse of 7 years in issuing these warrants, that is between the 22nd December, 1988 and the 18th December, 1995, is the sort of lapse of time envisaged by Section 50(2)(bbb) of the Extradition Act, 1965 as inserted by Section 2(1) of the Extradition (Amendment) Act, 1987. Such delay is a negation of the right of the Plaintiff to a trial with reasonable expedition. State (Healy) -v- Donoghue , (1976) I.R. 325 at 336 per Gannon, J.,: State (O’Connell) -v- Fawsitt , (1986) I.R. 362 (Supreme Court).: P.C. -v- The Director of Public Prosecutions , (1999) 2 IR 25 at 65, 66 per Keane, J., (as he then was),: B.F. -v- The Director of Public Prosecutions , (22nd February, 2001), (Supreme Court): (unreported - Judgment available), per Geoghegan, J.,).

36. Despite this finding, the onus remains upon the Plaintiff to establish in addition some, “other exceptional circumstances ”, which would render it unjust, oppressive or invidious to deliver him up. As was pointed out by Denham, J., in the passage from Fusco -v- O’Dea (No. 2), to which I have already adverted, what is contemplated by this requirement of the subsection is something special and unusual.

37. The Plaintiff points to a number of matters which it is submitted constitute such, “ exceptional circumstances .” These matters may be summarised as follows:-

38. I reject without hesitation the claim of lack of particularity and want of specifity in the charges preferred against the Plaintiff.

39. Detective Sergeant Heffernan in an Affidavit sworn on the 4th February, 1999 avers that evidence was put before the learned District Judge which established that there was fingerprint evidence to link the Plaintiff with the offences for which his extradition was sought. At page 10 of the Written Submission filed on behalf of the Defendants it is stated by reference to an Affidavit of Claire Gilligan, sworn on 4th December, 1998, that Detective Garda Kelly, Detective Garda Canning, Detective Sergeant Benton and Mr. Irvine formally of the Metropolitan Police, gave evidence to the learned District Judge that the Plaintiff was fingerprinted and fingerprints found in a premises in London were identified as belonging to the Plaintiff. Apart from this I know nothing of the evidence by which the Crown Prosecution Service would propose to establish its case against the Plaintiff. I want to emphasise, that in referring to these matters I am not seeking to explore or to adjudicate in any way on the merits of the charges against the Plaintiff and I am not drawing any conclusions as to whether the Plaintiff is innocent or guilty in respect of these charges. ( Clarke -v- McMahon , (1990) 1 I.R. 228 at 235 per Finlay, C.J.).

40. The Plaintiff points to no specific line or lines of defence in the conduct of which he claims to be unfairly prejudiced by the lapse of time in this case. Unlike the situation in Kakis -v- The Government of the Republic of Cyprus , (1978) 1 W.L.R. 779, H. of L., to which reference was made by both sides during the course of argument; the State (O’Connell) -v- Fawsitt, (1986) I.R. 362, and (though with the material difference that this involved sexual offences against a minor), M.K. -v- Judge Groarke and The Director of Public Prosecutions, (13th September, 2000) (Kearns, J.; unreported; Judgment available), the Plaintiff has not identified or sought to identify any particularly essential witness or indeed any witness who is now unavailable. While it is generally true that the ability to recall details of time, place, movement, events and people lessens progressively with the passage of time and that some persons capacity of recall fades faster than others, in the words of McGuinness, J., in J.L. -v- The Director of Public Prosecutions , (6th July, 2000), (unreported; Judgment available), “the right of an accused person to reasonable expedition in the prosecution of offences must be balanced with the communities right to have criminal offences prosecuted”, as to which exercise the legal principles have been set out by the Supreme Court in B. -v- The Director of Public Prosecutions , (1997) 2 I.L.R.M. 118.

41. Despite the failure of the Plaintiff to demonstrate with any degree of particularity any actual or probable prejudice to his capacity to defend himself by reason of the passage of 7 years since the date of the alleged offences, in my judgment, it would still be unjust to deliver him up after such an unexplained delay. In my judgment after such an unexplained delay and in the absence of the sort of special circumstances which arise in cases concerning sexual offences against minors, I am entitled in the words of Finlay, C.J., in The Director of Public Prosecutions -v- Byrne , (1994) 2 I.R. 236 at 244, to infer from the excessive length of time itself that the risk of an unfair trial has been established as a reality.

42. In the same case the learned former Chief Justice stated the following principle of Law at page 245 of the Report, a principle which found approval with the present Supreme Court in the case of B.F. -v- The Director of Public Prosecutions , (above cited) at page 16, namely:-

43. Though these decisions arose entirely within the framework of domestic law where the Court was been asked to stay criminal proceedings against an accused upon grounds of delay, in my judgment the principles of law above stated are equally applicable to extradition cases.

44. In reaching my decision, I am satisfied that the wholly unexplained dilatoriness of the Requesting Authorities in seeking extradition, together with the inferred reality of a real and serious risk of an unfair trial amount to, “exceptional circumstances ”, within the meaning of Section 50(2)(bbb) of the Extradition Act, 1965. This, in my judgment, is so if one considers only the first period of 7 years, but is overwhelmingly so if in addition one has regard to the overall lapse of time of 9¼ years. (Hogan -v- The President of the Circuit Court, (1994) 2 I.R. 513). I have noted that in the case of Kakis -v- The Government of the Republic of Cyprus , and other leading cases in Britain which have come before the House of Lords, the time lapse element was less than half that of the 7 years delay in the present case.

45. Having so found, it is unnecessary for me to proceed further but as the matters have been extensively argued I propose to deal with each of the other alleged, “exceptional circumstances ”.

46. In my judgment the submission based upon the loss, by the changes effected in the Law in 1994 during the course of the 7 year delay, of the alleged defence that the offences charged were “political offences” or “ offences connected with a political offence” is without merit. No evidence whatever was placed before this Court by the Plaintiff, upon whom the onus lies, from which the Court could be satisfied that either of these offences was a, “political offence” , or “ an offence connected with a political offence ” ( Maguire -v- Keane , (1986) I.L.R.M. 235 at 237.

47. In the course of his judgment in Kakis -v- The Government of the Republic of Cyprus , (above cited) at page 785 of the Report, Lord Russell of Killowen said:-

48. And at page 517 of the Report the learned Judge said:-

49. He also noted at p. 55:-

50. The law was restated by Finlay C.J., in Magee -v- Culligan (1992) 1 I.R. 223 at 237:-

51. The application for delivery was made in 1992 so the time to consider the meaning of “political offence ” or “connected with a political offence” in relation to the Plaintiff’s rendition is the current law.

52. The learned Trial Judge stated at p. 479:-

53. In my judgment the argument based upon the provisions of the, “Belfast” or “Good Friday” Agreement and the Criminal Justice (Release of Prisoners) Act, 1998, cannot succeed for the reasons stated by Kelly, J., in the case Quinlivan -v- Conroy and Sreenan , (14th April, 2000) (The High Court: unreported: Judgment available), which I adopt. The learned Judge held as follows:-

54. It was sought to distinguish the present case from that case on the grounds that in the latter case the conduct of the Plaintiff prevented the warrants been executed expeditiously, whereas it was argued that in the present case there was no inhibition to the warrants been so executed. It was argued that if the Authorities here and in the Requesting State so acted the Plaintiff would, on the balance of probabilities, have been eligible for release on or before the 13th July, 2000.

55. The Criminal Justice (Release of Prisoners) Act, 1998, came into force on 13th July, 1998. The warrants were issued on the 18th December, 1995 but for the reasons to which I have already adverted were not executed until the release of the Plaintiff from a prison in this State on the 25th March, 1998. The warrants were therefore executed prior to the Inter Government Agreement of 10th April, 1998. However, as I understood the argument the Plaintiff contends that if the warrants had been executed, as he says they ought, prior to his arrest, conviction and imprisonment in the State in 1994, and if he had been returned to England and if he had been convicted there, he would probably have been released on or before the 13th July, 2000.

56. In my judgment, the fact that the Plaintiff may have to serve a possibly foreshortened sentence, (should that be in fact the case), now or in the future rather than at some time in the past decade, is no basis for refusing rendition. The decision of the Supreme Court in the case of Sloan -v- Culligan , (1992) 1 I.R. 223 at 267/8, was based upon totally different facts and could have no possible application to the facts of this particular case.

57. It was further argued that it would be unjust, oppressive or invidious to permit the rendition of the Plaintiff because it was alleged, he would be remanded in custody in England for more than a year pending trial. The sole basis for this submission is an averment by the Plaintiff in his own Affidavit sworn on the 10th December, 1999, to the effect that he was aware,

58. The onus lies upon the Plaintiff to establish, to the satisfaction of the Court, on the balance of probabilities, that he would suffer such a period of pre-trial remand in custody. In my judgment, this has not been established by what has been offered by the Plaintiff. Even, however, if I were to proceed upon the basis that these assertions, as not denied in the replying Affidavit of Richard Edwin Glenister, are therefore accepted by the Requesting Authorities as true and accurate, I cannot see how such a delay as this could be said to be an, “exceptional” circumstance so as to render it unjust, oppressive or invidious to deliver up the Plaintiff.

59. Finally, on the argument directed to lack of correspondence, in the case of Hanlon -v- Fleming , (1981) I.R. 489 and 495, (Supreme Court) Henchy, J., held as follows:-

60. In my judgment the factual components of the offences specified in the warrants in this case, that is, the acts alleged, clearly correspond with offences under Section 3(a) and Section 3(b) of the Explosive Substances Act, 1883 as amended by Section 4 of the Criminal Law (Jurisdiction) Act, 1976, which are offences of the required gravity for the purposes of Section 50(2)(c) of the Extradition Act, 1965. ( Ellis -v- O’Dea (1991) I.L.R.M. 346 at 370, 372, (Supreme Court)). In the absence of evidence which would give me some reason to believe to the contrary I must accept that the facts stated in the warrants are true. ( Wyatt -v- McLoughlin , (1974) I.R. 378 at 395 per Walsh, J., (Supreme Court)).

61. In my judgment therefore the Plaintiff has not succeeded in establishing any other, “exceptional circumstances ” within the meaning of Section 50(2)(bbb) of the Extradition Act, 1965.