JUDGMENT of Murray C.J. delivered on the 29th day of March, 2007
This is an appeal by Assistant Commissioner O’Toole of An Garda Síochána, the respondent / appellant, hereafter the appellant, from an Order of the High Court directing the release of the applicant / respondent, hereafter the respondent, pursuant to s. 50 of the Extradition Act, 1965 as amended and which directed that his extradition to the United Kingdom be refused pursuant to s. 50 of that Act. The respondent brought these proceedings pursuant to s. 50 of the Act following an Order of the District Court pursuant to s. 47 of the Act made on 7th October, 2004 for his extradition to the United Kingdom on foot of a warrant issued by a Magistrate’s Court in the county of West Midlands, England for his arrest so that he might be brought before Warleigh Magistrate’s Court, West Midlands, England for sentence in respect of an offence of burglary for which he had been convicted, on a plea of guilty, before the said Court on 11th July, 1995.
The English warrant was issued by reason of the fact that having been convicted of the offence of burglary before the aforementioned Magistrate’s Court on 11th July, 1995 the respondent was then released on bail by the Court with an obligation to surrender to that Court on 2nd August, 1995 for sentence in respect of his conviction, but in breach of those bail conditions he did not appear at the Magistrate’s Court for sentencing. He absconded to this country.
Statutory Provisions
Section 47(1) of the Extradition Act, 1965, as amended, provides:
“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 into the custody of a member of a police force of the place in which the warrant was issued, for conveyance to that place, and remand him until so delivered.”
The issues in these proceedings are governed by s. 50(2)(bbb) of the Extradition Act, 1965 as amended by the Extradition (Amendment) Act, 1987. This provides:Legal Issue
The basic legal issue which arises in this case is whether it would be unjust, oppressive or invidious to require that the respondent be extradited in all the circumstances of the case and by reason of the lapse of time between the date of his conviction and the date on which he made his application for release to the High Court and other exceptional circumstances.
The Facts
The facts and circumstances of this case are not in issue between the parties. They relate essentially to the course of events, and in particular legal proceedings, both criminal prosecutions in this country and applications related to his extradition as regards the respondent subsequent to his conviction in England up to the point when this application was heard by the High Court.
It is sufficient therefore to set out the sequence of events which are common case as outlined in the written submissions of the respondent. Those sequences of events are as follows:
· 11th July, 1995 – The respondent was convicted of the offence of burglary (the date of the offence being the 3rd July, 1995) contrary to Section 9(1)(b) of the Theft Act, 1968, at Warley Magistrate’s Court (warrant D). He was released on bail to appear before the same court for sentence on the 2nd August, 1995, but failed to appear.
· 6th / 8th June, 1996 – It had previously been alleged by the UK authorities that the respondent had committed, on these two dates, three other offences. Extradition was initially sought in respect of these allegations also but the applications have now been discontinued (warrants A – C).
· 8th July, 1996 – The respondent was remanded in custody in this jurisdiction, in respect of unrelated matters. In March 1997, he was sentenced to 6 years imprisonment by the Dublin Circuit Criminal Court, which sentence was backdated to 8th July, 1996. A review date was set for July 1998.
· 23rd June, 1998 – Warrants A – D were issued by a Justice for the county of West Midlands in England.
· 16th July, 1998 – The Circuit Court sentence imposed on the respondent in March 1997 was reviewed by that court and the respondent’s release was ordered, subject to his appearing again on the 19th January, 1999 for a further review hearing. The respondent was immediately arrested by Sergeant Martin O’Neill on foot of Warrants A – D. He appeared before the District Court on a number of occasions thereafter and on each occasion was remanded in custody.
· 25th November, 1998 – The learned District Judge heard submissions from both the respondent and from the appellant and was ultimately not satisfied that the Attorney General’s Scheme applied to proceedings before the District Court. He discharged the respondent from the extradition proceedings and the respondent was released from custody.
· 5th February, 1999 – The respondent began serving a sentence for an unrelated offence. (He was subsequently released from custody on 8th September, 1999, on the termination of his sentence.)
· 19th April, 1999 – The Attorney General was granted leave to apply to the High Court for an order of certiorari in respect of the decision of the learned District Judge on the 25th July, 1998, discharging the respondent from the extradition proceedings.
· 11th February, 2000 – The respondent was recommitted to Mountjoy Prison. He was detained there until the balance of the six-year sentence initially imposed in March 1997, was re-activated in the Dublin Circuit Criminal Court on 27th November, 2000.
· 16th October, 2000 – An order of certiorari was made by Mr. Justice Kelly in respect of the decision of Judge McDonnell on 25/11/1998. The order of the High Court provided that, in lieu of directing that an order of certiorari doth issue, the learned District Court Judge should sent forward for quashing, all entries and records relating to the order of the 25th November, 1998.
· 27th June, 2001 – The matter of the respondent’s extradition was listed before the District Court in Tallaght. The respondent was remanded in custody to 9th July, 2001 for a hearing date to be fixed in the matter.
· 9th July, 2001 – A hearing date was fixed for the matter of the respondent’s extradition to be heard by the District Court, that being the 11th October, 2001.
· 11th October, 2001 – The learned District Judge was not satisfied that the order of the high Court had been complied with and the proceedings were struck out.
· 15th January, 2003 – The matter was re-listed before Tallaght District Court by the appellant. The learned District Judge again took the view that the matter was not properly before him as there was not before the Court any certificate quashing his order of 25th November, 1998 and that therefore he had no jurisdiction to deal with the matter. No order was made.
· 12th June, 2003 – The matter was against listed before the District Court in Tallaght. Again the learned District Judge was not satisfied that the order of the High Court had been complied with and no order was made.
· 24th June, 2004 – The appellant again attempted to have the matter re-listed before Tallaght District Court and again no order was made.
· 28th July, 2004 – Counsel for the appellant sought from the High Court, a declaration that the order of the High Court dated 16th October, 2000 had been complied with and that the order of the District Court of 25th November, 1998 had been quashed. This declaration was made and the High Court further ordered that the matter of the respondent’s extradition be re-entered before a District Court Judge.
· 10th August, 2004 – The respondent was released from custody having served all sentences.
· 10th September, 2004 – The respondent appeared voluntarily before the District Court in Tallaght and the matter of his extradition was re-entered. He was remanded in custody, the High Court having exclusive jurisdiction to grant bail.
· 22nd September, 2004 – The respondent was admitted to bail by the High Court.
· 4th October, 2004 – The respondent appeared on bail before the District Court sitting in Court 50 in the Richmond Hospital, North Brunswick Street, Dublin 7. Evidence and submissions were heard and the learned District Judge indicated that it was his intention to order the extradition of the respondent pursuant to section 47of the Extradition Act. Counsel for the respondent requested that the Court delay finalising its order so that these proceedings could be initiated and this application was acceded to. The respondent was remanded on continuing bail to 7th October, 2004.
· 7th October, 2004 – These proceedings were instituted by the respondent when the Special Summons herein was lodged in the Central Office of the High Court and a return date of the 30th November, 2004 was fixed before the Master of the High Court. The respondent appeared on bail before the District Court sitting in Court 50 in the Richmond Hospital, North Brunswick Street, Dublin 7. The learned District Judge ordered that the respondent be delivered into the custody of the English Police pursuant to section 47 of the Extradition Act and remanded him in custody. An application for bail was made before Mr. Justice Peart in the High Court and the respondent was admitted to bail on the same terms as previously fixed, such order being made on consent.
· May 2005 – Counsel for the respondent is informed that it is no longer the intention of the appellant to seek his rendition in respect of warrants A – C.
· 24th June, 2005 – The application of the respondent for release pursuant to section 50(2)(bbb) of the Extradition Act was heard before Mr. Justice Peart in the High Court. Judgment was reserved.
As can be seen from the foregoing the lapse of time involved is nine years and three months being the period from the date of his conviction in the United Kingdom and the date when this application was heard by the High Court.
He was at liberty for approximately one year after he fled the United Kingdom before he was arrested in this country for a criminal offence.
Subsequently, during the period in question, he spent a total of seven years and 11 months, almost eight years, in prison for offences committed in this country.
He also spent four months and 21 days on remand in custody in this country by reason of the extradition proceedings which were pending before the Courts.
Submissions of the parties
The State
Submissions of counsel for the State were to the effect that the respondent was himself responsible for any lapse of time because, firstly, he had breached the bail imposed upon him by the Court in the United Kingdom and absconded and secondly he had committed criminal offences in this country and during the relevant period has spent many years imprisoned as a result and thirdly he had resisted or refused to acquiesce to the application for his extradition to the United Kingdom.
The Extradition Order was made in the District Court in the month following his last release from imprisonment. Insofar as the extradition proceedings and the ensuing judicial review were prolonged, apart from the fact that he resisted extradition in the District Court, he was serving terms of imprisonment in this country for the great bulk of the period when the judicial review proceedings were pending and he has not, and could not, claim to be prejudiced by the time which those proceedings took. In these circumstances it was submitted that there were no exceptional circumstances, for which, in all the circumstances of the case, it could be concluded that his return to the United Kingdom would be unjust, oppressive or invidious.
It was also submitted that since the respondent was not available for extradition for many years during the period in question because of his imprisonment in this country and because the Order for extradition was made within one month of the termination of his six year prison sentence the lapse of time could not be considered to be an exceptional one within the meaning of s. 50(bbb).
In particular the State submitted that the respondent should not be entitled to resist his extradition by virtue of his own misconduct in this country. In this respect the State relied on the judgment of the High Court in Kelly –v- Minister for Justice, Equality & Law Reform (unreported, High Court, 23rd July, 2004) in which Kearns J. stated:
“I can very quickly deal with the suggestion that there has been a lapse of time such as to render it unjust or invidious to deliver him up. The plaintiff is serving, or was at all material times serving a sentence for rape and any lapse of time was entirely as a result of his own conduct and behaviour which led to incarceration. It is ludicrous to my way of thinking to argue that there has been in some sense a blameworthy delay in lapse of time attributable to the prosecuting authorities in such circumstances. There is no deleteriousness whatsoever on the part of the prosecution authorities. Insofar as that argument is made simplicitor, it is, to my way of thinking, utterly without merit or any worthwhile substance whatever.”
Counsel also submitted that the length of sentence which a person extradited might be required to serve, once the offence was an extraditable one, was not a determining factor. Even if it was a fact to be taken into account there was nothing in the circumstances of this case, in the context of any sentence to be served or otherwise, which established that it would be unjust or otherwise to extradite the respondent.
The Respondent
Counsel for the respondent submitted that the extent of the lapse of time involved since the respondent’s conviction for the offence the subject matter of the extradition application, was so long as to constitute exceptional circumstances within the meaning of s. 50(2)(bbb) of the Act of 1965 notwithstanding the degree of culpability on the part of the respondent in relation to the lapse of time.
He acknowledged that the onus was on the respondent to establish that by reason of exceptional circumstances it would in the circumstances of the case be unjust, oppressive or invidious to extradite him. The lapse of the period of nine years, 10 months and 22 days since the commission of the offence and the date of the hearing of his application for release by the High Court must be considered as an exceptional circumstance and the culpability of the respondent for the lapse of time, which may be relevant to considerations as to whether it would be unjust, oppressive or invidious to extradite him, does not affect a determination that objectively the lapse of time is itself in this case an exceptional circumstance.
Counsel accepted that the respondent must also show other exceptional circumstances.
The first of those other exceptional circumstances is the period spent in custody when the sole basis for his detention related to the pending extradition proceedings. There were two periods when he was remanded in custody in relation to the extradition proceedings and this amounted to a total of four months and 21 days in custody on foot of the extradition warrants then in being.
The respondent also relied on the fact that having pleaded guilty before a Court a Summary Jurisdiction in England the maximum sentence which could be imposed upon him under United Kingdom law is six months. It was common case between the parties that this was the position under that law.
It was submitted by counsel for the respondent that in effect extradition is now being sought in order that he be sentenced for an offence in respect of which the maximum sentence which may be imposed is one of six months whereas the respondent has already been detained in this jurisdiction for a period of four months and 21 days in respect of the same offence.
Counsel also argued that it was a general principle, if not a universal principle, certainly in this country, that time spent pre-trial in custody is taken into account when a sentence is being imposed on an accused after conviction. Counsel pointed to two possible outcomes of the sentencing which could occur if the respondent was extradited in respect of the burglary charge. First of all if the English Court took into account the four months and 21 days which the respondent spent in custody here in connection with the extradition proceedings the maximum sentence which he could except to receive would be one month and 10 days.
On the other hand, and secondly, if he were to be sentenced in England to the maximum of six months or if he were to be sentenced to a period exceeding one month and 10 days, the total period which he would have to spend in custody, taking into account the four months and 21 days in this jurisdiction, would in effect exceed the six months maximum envisaged by English law according as the sentence imposed exceeded a one month and 10 day period.
He submitted that it would be unjust, oppressive or invidious to extradite him if the consequence were either that the total amount spent in prison in connection with the extradition offence, taking into account the period in custody here and the sentence to be imposed, exceeded a total of six months or even if the sentencing Court in England took account his period in custody here since the sentence would not exceed the short period of one month and 10 days. Given the length of period which had elapsed since the commission of the offence it would be oppressive to extradite for an offence carry such a short potential sentence. In this respect counsel relied on the dicta of Mrs. Justice Denham in Fusco –v- O’Dea (No. 2) [1998] 3 I.R. 470 at 522 where she stated:
“The evidence of the credit to be afforded in this case is a relevant factor in considering the circumstances so as to determine whether "exceptional circumstances" exist, whether it would be"unjust", "oppressive" or "invidious" for the plaintiff to be returned to Northern Ireland.”
Counsel also referred to the statement of Finlay C.J. in Sloan –v- Culligan [1992] 1 I.R. 223 (rferred to by Denham J. in her judgment) where he stated the following:“Having regard to this unequivocal statement of the situation contained in the letter of the Chief State Solicitor, the position is that if my view of the issue under s. 3 of the Act of 1987 is accepted by the other members of the Court, and if the only sentence in respect of which this plaintiff could be delivered to Northern Ireland is the sentence of five years imprisonment in respect of the false imprisonment of James Kennedy, then he has no remaining sentence to serve in Northern Ireland. On that basis, it seems to me that the Court cannot and should not order his delivery to Northern Ireland on foot of the conviction for this offence, as to do so would be annulity or a futile order.”
Counsel for the respondent buttressed his argument by referring to the provisions of the European Arrest Warrant Act, 2003 giving effect to the Framework Decision of the European Council on 13th June, 2002, and in particular Article 26 of that decision which provides that the requesting member State must deduct all periods of detention arising from the execution of the European Arrest Warrant from the total period of detention to be served in that State as a result of a custodial sentence being passed.
In support of his contention to be entitled to relief under s. 50 counsel submitted that in contrast to what had happened in the Fusco case no information had been provided by the State or the requesting State as to the sentence which would be passed, or sentencing policy adopted, in connection with the respondent. He submitted that there was an onus on the State in such circumstances to provide such information.
The Judgment of the High Court
The learned High Court Judge found first of all that the lapse of time involved in this case is an exceptional circumstance for the purpose of s. 50(bbb) of the Act of 1965. I agree with that conclusion for the reasons set out later in my judgment which differ from those of the learned High Court Judge. For the purpose of this appeal I do not think it is necessary to review in detail those given by the learned High Court Judge. Suffice it to say, notwithstanding the inordinate delay and unusual circumstances of the initial judicial review proceedings in connection with certain Orders made by the District Court, I conclude that the respondent was essentially responsible for the lapse of time having absconded and breached the terms of his bail in the United Kingdom after he had been convicted of the offence in question and his opposition to the extradition request in circumstances where there was no fundamental objection to the legality of the request for extradition which now turns solely on the lapse of time and the alleged injustice which flows from that. The fact that he spent nearly eight years in prison here during that period is also a factor to be taken into account in this context.
When dealing with the “other exception circumstances” the learned High Court Judge’s approach was very much affected by his understanding that the respondent, if returned, would be sentenced pursuant to s. 9 of a United Kingdom Act namely the Theft Act, 1968 which provides for a maximum sentence of 10 years. In this appeal the parties are agreed that the respondent would not fall to be sentenced under that section and the arguments of the respondent are based on the agreed fact that the respondent would fall to be sentenced under another statutory provision which provides that he would be subject to a maximum term of imprisonment of six months or alternatively a fine. The submissions of the respondent in this appeal arising from the possible application of the latter provision are addressed later in this judgment.
Decision
An important aspect of this case, in my view, is that fact that the respondent stands already convicted of the offence in respect of which his extradition is sought and if he complied with the bail imposed upon him by the English Court he would have been sentenced on the 2nd August, 1995. Then no lapse of time would have arisen. He breached his bail and absconded to this country. All that has happened since then can be directly linked to this escape from justice or the fact that he could not be extradited because he was in prison here for criminal offences subsequently committed here. The respondent’s circumstances are different from a case where extradition is sought for the purpose of putting on trial a person for a criminal offence since that person enjoys the presumption of innocence and is not a convicted criminal who has fled from an Order of a Court after conviction.
It is also relevant to note that the respondent does not rely on any extraneous matter which could render his return as unjust, oppressive or invidious such as the risk of ill-treatment, denial of a fair hearing or other denial of rights if returned to the English Court for sentencing. There are just two aspects of the case made on his behalf as regards his claim that his return would be unjust, oppressive or invidious.
Essentially, his case is based on the passage of time and the nature of the sentence which may be imposed by the Court in England for the offence in question with or without regard to his short period in prison here which related to the extradition proceedings.
Time lapse
The section in question speaks of the lapse of time since the date of conviction for the offence which was 3rd July, 1995. I would have thought that the ultimate date defining the end of the lapse of time period to be taken into account might well be the date on which the District Court made the order for his return to England under s. 47 of the Act of 1965 but as Hamilton C.J. stated in Kwok Ming Wan –v- Conroy [1998] 3 I.R. 527 at 534:
“The period to be taken into consideration, therein referred to, is the period between the date of the plaintiff absconding and the date of the hearing of his application to the High Court.”
In any event nothing really turns on the point, the total period from the date of his conviction to the date of the High Court hearing being approximately nine years and 11 months.
It is quite clear, and indeed not in issue, that the first step which the respondent must take is to establish that the lapse of time involved is an exceptional circumstance. Section 50(2)(bbb) speaks of “the lapse of time” … “and other exceptional circumstances, …” This has been the consistent approach of the Court in a number of cases. (See M.B. –v- Conroy [2001] 2 ILRM 311 and Coleman –v- O’Toole [2003] 4 IR 222).
In determining whether a lapse of time constitutes an exceptionnal circumstance the Court does not have regard to culpable delay or other contribution by one party or another to the lapse of time. As Mrs. Justice McGuinness pointed out in McNally –v- O’Toole (unreported, Supreme Court, 9th May, 2002):
“As has been noted in the earlier judgments, the sub-section speaks of “lapse of time” rather than “delay”. The term “lapse of time” is a neutral one, denoting a factual situation, while “delay” would imply a lack of action on the part of some person or body.”
Accordingly one is only concerned here with the objective fact of the period of time involved. The lapse being almost 10 years I am quite satisfied that it is such an exceptional period as to constitute an exceptional circumstance. That of course is not in itself a ground for relief under the section.
Consideration of such factors as the reasons for the lapse of time and culpable delay on the part of any party are matters to be taken into account at the later stage in determining whether there are other exceptional circumstances but in particular whether in all the circumstances extradition would be unjust, oppressive or invidious.
As Keane C.J. stated in M.B. –v- Conroy:
“It follows that it is not sufficient for a plaintiff whose extradition would otherwise be justified to show that a significant period of time has elapsed since the commission of the offence referred to in the warrant … He must also satisfy the High Court that there are other exceptional circumstances which would render it unjust, oppressive or invidious to allow the extradition to proceed.”
Other exceptional circumstances
Overall there are really only two elements in the respondent’s case.
The first is the lapse of time of almost 10 years.
The second is the fact that he spent four months and 21 days in custody when he did not receive bail awaiting the determination of the extradition application.
From the latter element is extrapolated the alleged potential consequences regarding the kind of sentence he may receive if he is returned to England to face the sentence which he evaded that many years ago.
Both elements were created by the respondent by firstly absconding and triggering the need for his extradition and secondly by committing crimes here which warranted his imprisonment.
There is no suggestion that any other factor is present which would otherwise render his return to be considered unjust, oppressive or invidious.
I have to say that I do have difficulty in considering it unjust to return a person to face sentencing before a Court in another country when that person has pleaded guilty to breaching the criminal law, of another country, evaded justice and then had his extradition delayed mostly because he was in prison serving a sentence for other offences at the same time persistently refusing to return to the sentencing Court from which he had accepted bail under certain conditions. This was compounded by his resistance to his extradition at all stages.
As regards the submission on behalf of the respondent that he has already been detained in custody in this country for a period of four months and 21 days in respect of the offence for which his return to England is required I think it is necessary at this point to point out that this is not quite the case. A convict who has absconded in breach of a Court Order must accept that, once subsequently apprehended, he is at least on real risk of being kept in custody pending his final appearance in Court to fact sentence by reason of the fact that there is a real risk he may abscond again. That can only have been the criteria upon which he was refused bail in this case. He was in custody pending the determination of his extradition proceedings by reason of a judicially found risk that he would seek to abscond and evade justice further. He was not serving a sentence for the offence in relation to which his extradition is sought. In short it was his own decision to evade justice which was the immediate reason for his period of custody then. I mention this in order to put the element of his detention in proper context.
I accept however the general thrust of the proposition made by counsel for the respondent that time spent in custody by an accused pre-trial may generally be taken into account by a sentencing Court in this country when imposing sentence after conviction. This is not invariably the case although I would also accept that often a Court will have had regard to the time spent in custody even if it does not expressly backdate the sentence or otherwise expressly make a deduction for that time. Essentially it is a matter for the discretion of the trial Judge in this country. That is the practice here. But it must be borne in mind that the respondent falls to be sentenced not in accordance with Irish law and practice but that in England where he committed the offence.
The issue here is whether the English Court should be denied the opportunity of considering what sentence should be imposed on the respondent because it would be unjust, oppressive or invidious if it was allowed to do so.
The respondent complains that no information has been provided concerning what sentence the Court in England will impose. However, what we do know is that it will be imposed by a Court. We also know, because it is a fact concerning English law which has been admitted by both parties, that the maximum sentence which can be imposed for the offence is six months. That Court may alternatively impose a fine. This clearly indicates that the Court in England has a judicial discretion as to the appropriate penalty which should be imposed within the ambit of the maximum sentence and according to sentencing policy applied in accordance with the law of England.
As the respondent has acknowledged, the law is that the onus is on him to establish the exceptional circumstances. There is no evidence before us as to what the English law on sentencing practice in this context is, other than that he is liable to six months imprisonment or a fine.
There are no grounds established in my view for concluding that in considering what sentence to impose in the exercise of its discretion, that the English Court will not have regard to the fact that the offence in question took place 10 years ago and that the respondent spent in excess of four months in prison in this country in connection with the extradition proceedings for that offence.
However before dealing with the essence of the objections made by the respondent I wish to give consideration to some supporting arguments which his counsel advanced.
The Sloan Case
I do not think that Sloan –v- Culligan (cited above) is of assistance to the respondent as argued by him as that case was attended by a very special set of facts which require some elaboration. Anthony Sloan had escaped from prison in Belfast. When arrested in this jurisdiction he had been sentenced in Belfast to 20 years and 18 years imprisonment respectively in respect of two offences, those sentences to run concurrently. For a third offence he had been sentenced to five years imprisonment which was to run consecutively to the sentences imposed on the earlier two charges.
Subsequent to arrest in this jurisdiction, he, along with others, were charged with offences arising out of his escape from prison in Belfast under the provisions of the Criminal Law (Jurisdiction) Act, 1976.
The Northern Ireland authorities could have at that time sought his extradition to Northern Ireland to serve the sentences he was evading and for the offences associated with his escape. They chose not to do so, no doubt because of the terms of the ‘political offence’ exception as it was applied in law at the time.
Thus he was prosecuted here at the behest of the prosecuting authorities in Northern Ireland for offences committed in Northern Ireland in a Court of which a Judge from Northern Ireland was a member. He of course consented to being tried here under the Act of 1976. He served the sentences imposed for the Northern Ireland offences in this State. As his release date from prison in this jurisdiction approached, some eight years after his escape from custody, an application was made for his extradition in connection with the three original sentences imposed in Northern Ireland. The District Court made the appropriate Orders for his extradition.
When he challenged the extradition order pursuant to s. 50 he did so inter alia on the grounds that the offences for which he had been sentenced were political offences for which no extradition was permissible. He also brought separate but parallel judicial review proceedings in respect of the District Court Order for his extradition on the grounds that the Order “failed to have regard to his constitutional rights”.
He successfully resisted his extradition to Northern Ireland in respect of the first two offences, as being political offences, for which he had received the lengthy sentences. The High Court held that the third offence, for which he had been sentenced to five years, was not a political offence and refused to release Anthony Sloan and directed that he should be extradited accordingly.
One of the grounds relied upon in the High Court by counsel for Anthony Sloan for contending that the Northern Ireland authorities were estopped from seeking his extradition was that they ought not to be allowed to rely first on the Criminal Law (Jurisdiction) Act, 1976 and then having operated that Act to rely later on the Extradition Act, 1965, “… That is to say that they could not have the plaintiff tried in this State for the escape offences committed in Northern Ireland on 10th June, 1981 and then try or imprison him again in Northern Ireland in respect of those offences.” (See judgment of Lynch J. in the High Court at 249.) That argument was rejected in the High Court because, as Lynch J. pointed out, the extradition of Anthony Sloan was sought only for the purpose of serving the balance of the sentences imposed in Northern Ireland allowance being made for the period in custody in this State for the other Northern Ireland offences.
A very special feature of the case was obviously the fact that, having opted to prosecute under the Act of 1976 rather than extradite him, the sentence served in this State was for offences committed in Northern Ireland which if served in Northern Ireland as a result of a conviction there would have run concurrently with the original sentences.
Another special feature of the case adverted to by Lynch J. was the fact that the Northern Ireland authorities decided at the expiry of the sentence here to pursue extradition, an option not pursued at the time of his prosecution here, because of a change in the law in the meantime.
In that case it is clear that both the nature and ambit of the sentencing issue was wholly different from that in this case. It was in the foregoing context that Lynch J., in the High Court, considered that no issue arose under s. 50(2)(bbb). It was also in that context that Lynch J. referred to “undertakings” having been given, but as is clear from the Supreme Court judgment they were more in the nature of information given to the Court and the plaintiff’s solicitors regarding the sentence the plaintiff would in fact serve in the circumstances of the case, when returned. The information given to the plaintiff’s solicitor was to the effect that the plaintiff would be required to serve only the balance of the Northern Ireland sentences as though his period of imprisonment in this State for specific offences committed in Northern Ireland had been served also and concurrently in Northern Ireland.
The plaintiff appealed from the Order dismissing his challenge to his extradition to serve a sentence for the third offence. The State had also appealed against some of the findings of the learned High Court Judge in relation to the other two offences. The issues relating to the appeal by the State in that case are not relevant to this case. The relevant issue is that referred to by Finlay C.J. at p. 264 of this judgment concerning the “appeal prosecuted on behalf of the plaintiff in relation to the Order for his delivery in respect of the offence of false imprisonment of James Kennedy on the grounds that the authorities in Northern Ireland were estopped from executing the warrant, by reason of their delay involved, in particular, with their decision to request the prosecution of the plaintiff pursuant to the Act of 1976.”
Subsequent to the hearing in the High Court and before the appeal was heard the solicitor for Anthony Sloan wrote to the Chief State Solicitor seeking information as to “… what if any sentence our client would have to serve in Northern Ireland, should in fact his delivery to Northern Ireland be carried out.” The Chief State Solicitor replied by confirming, on behalf of the Northern Ireland authorities, that the only sentence which the plaintiff would be required to serve was the balance of the sentence or sentences imposed for offences for which his return is ordered.
In his judgment in that case Finaly C.J., having rejected the appeals of the State concerning the two offences for which extradition had been refused on the grounds that they were political offences, found that “having regard to [the] unequivocal statement of the situation contained in the letter of the Chief State Solicitor the position is that … the only sentence in respect of which this plaintiff could be delivered to Northern Ireland is the sentence of five years imprisonment in respect of the false imprisonment …” (the third offence) and therefore that he had “… no remaining sentence to serve in Northern Ireland. On that basis, it seems to me that the Court cannot and should not order his delivery to Northern Ireland on foot of the conviction for this offence, as to do so would be a nullity or a futile order.”
The very special circumstances of that case are quite evident and furthermore the plaintiff based his challenge on grounds that extended beyond s. 50 of the Act of 1965, in particular s. 50(2)(bbb) and included judicial review grounds. As Finlay C.J. pointed out in his judgment there had been some “procedural irregularities” and that the Court was satisfied, with the agreement of counsel, “… that in the interests of justice it should determine the issues which have remained to be pursued on appeal, having regard to the notices which had been served, and having regard to the abandonment of some of the grounds therein contained.” In fact the decision of Finlay C.J., with whom other members of the Court agreed, appears to have been based on grounds other than those set out in s. 50(2)(bbb).
It seems to me that the question of the sentences left to serve arose because the plaintiff in that case had served a prison sentence here for offences committed in Northern Ireland, which if served in Northern Ireland would have run concurrently with the sentences for which extradition was being sought. It was in this context that the Northern Ireland authorities, through the Chief State Solicitor, introduced themselves the information on sentencing.
It is also important to bear in mind that Anthony Sloan’s extradition was being sought only for the purpose of completing already imposed sentences (and not for the purpose of being sentenced) which was found by the Court to be futile, once extradition in respect of the two leftover sentences was ruled out because of the political nature of the offences concerned.
In contrast, in this particular case the respondent has not been sentenced. His return is not being sought for the purpose of putting him back into prison but for the purpose of requiring him to face the due process of justice before a Court which he has evaded and it cannot, to my mind, be said that this would be a nullity or a futile exercise.
On the contrary if he is not returned his attempt to thwart justice would be rewarded and the due process of his charge and conviction before a Court in England rendered a futile exercise.
In the circumstances I do not think that the Sloan case is a basis for arguing that a requesting State must give general undertakings or information concerning the actual sentence that will be imposed by the requesting State in an application under the Act of 1965. Indeed the judgments of Finlay C.J. and McCarthy J. raised serious doubts as to the appropriateness of Courts being asked to rely on undertakings as referred to in that case.
Nor could that case be a basis, since the facts are so different, for contending that the return of the respondent in this case to the United Kingdom would be “futile” or a “nullity” which was the basis of Finlay C.J.’s judgment.
The Fusco Case
Counsel also referred to the dictum of Denham J. in Fusco –v- O’Dea (cited above) when she stated “The evidence of the credit to be offered in this case is a relevant factor in considering the circumstances so as to determine whether “exceptional circumstances” exist, whether it would be “unjust”, “oppressive” or “invidious”, for the plaintiff to be returned to Northern Ireland.”
There were special features of that case very similar to those in Sloan. The credit for serving a sentence here for an offence committed in Northern Ireland arose because it was “offered” as Denham J. put it by the Northern Ireland authorities in the context of that case. The plaintiff in that case was another escapee from a prison in Northern Ireland. He also had been subsequently tried pursuant to the provisions of the Criminal Law (Jurisdiction) Act, 1976 in this jurisdiction for offences relating to the escape and which were committed in Northern Ireland. He was convicted and sentenced to 10 years penal servitude, eight years and five years imprisonment respectively in relation to those offences which terms of imprisonment ran concurrently. Likewise the Court was told that full credit would be given for time served in prison in Portlaoise for the offences committed in Northern Ireland. It was in that context that Denham J. made the statement referred to and she was referring there to the specific information which had in fact been given in support of the purpose for which the extradition had been sought.
In any event I have no great difficulty with an issue, as such, being raised as to the credit which may or may not be given by a requesting State to an extraditee in respect of time spent in custody in this country awaiting his extradition. There may, on the particular facts of a case be particular circumstances in which this would be relevant to an issue such as those which arise under s. 50(2)(bbb). Moreover, the subsection itself says that issues arising under the subsection must be decided, inter alia, “having regard to all the circumstances”. The outstanding question would still remain as to whether it would be unjust, oppressive or invidious to permit the return.
Section 47 of the Extradition Act, 1965
Counsel for the respondent made reference to s. 47(2) of the Extradition Act, 1965 which provides “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 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.”
The purpose of that section is clear. It sets the threshold for what may be considered extraditable offences. It means, inter alia, that the person whose extradition is sought must be liable to a minimum sentence of six months. It is a means simply of delineating a class of offences to which extradition under the Act applies by reference to the offence and the kind of sanction which may be imposed. It is not concerned with the seriousness of the offence in the particular circumstances of a case. Of course a person extradited and convicted for an offence may get a suspended term of imprisonment or no term of imprisonment suspended or otherwise. He may, as could happen in this case, be simply subjected to a fine. That does not affect the application of the Act.
It is not in issue between the parties that, as is patently plain, the criteria for s. 47 has been fulfilled in this instance, and that the offence in question here is an extraditable offence.
Therefore, I do not consider that s. 47 can affect the issues in this case.
Framework Decision
As regards Article 26 of the Framework Decision (cited above), which requires Member States of the European Union to give credit for time spent in custody awaiting extradition, that is a wholly different legal instrument serving a common policy of the Member States adopted at European Union level for the purpose of the European Arrest Warrant system and I do not think it has any bearing on the issues in this case, which arise under the 1965 Act, from any aspect.
Conclusion
As I have mentioned above, the onus is on the respondent to establish the facts and circumstances which would make his extradition to the United Kingdom unjust, oppressive or invidious within the meaning of s. 50(bbb) of the Act of 1965. The State has discharged its onus for the purposes of the Act of 1965, and in particular s. 47, of establishing that it is an offence for which the law prescribes a possible sentence of six months at least and the offence is therefore one for which extradition may be ordered.
The respondent freely acknowledges that he has not established what the sentencing law or practice is in England with regard to the taking into account, when the Court there is imposing sentence, the period of time spent in custody here, (four months and 21 days), which related solely to the application for his extradition.
Instead he relies on two theoretical possibilities, both said to be at opposite ends of the sentencing spectrum.
First of all that the English Court may take no account of that particular period which he spent in custody here and impose the maximum sentence which the English Act permits, namely six months. If that were to happen it would be unjust, he says, since the totality of his period in prison arising from his conviction in England, when these two periods are taken together, would exceed the maximum of six months provided for in the English Act.
The second possibility which he put forward is that the Court in England will take full account of that period which he spent in custody here and if it did so the maximum which he would have to serve in England would be one month and ten days or so. It would be unjust he says to send him back to serve such a short sentence for an offence committed such a long time ago.
As regards the first possibility, it is of course a purely hypothetical proposition that the respondent may or will be sentenced to the full six months without any possibility of credit being made for the period in custody here awaiting extradition. If that is the law of England it is the law of the country in which he committed and was convicted of the criminal offence. It would mean that the English Court would not give credit, when imposing an otherwise merited sentence, for a period in custody which was due entirely to the fact that the convict had broken his bail after conviction, absconded but had to be kept in custody for a period for fear that he would abscond again while his extradition was being sought in the face of his resistance to it.
As I say there is no evidence that will necessarily be the approach of the Courts in England but, if it be the case, the fact that it might not correspond with current general practice in this country does not make it unjust, oppressive or invidious within the meaning of the Act to return the respondent to be sentenced in accordance with the law of the country in which he committed the offence. The maximum to which he can be sentenced is six months. If, as it is hypothetically put, the English Courts cannot give credit for time spent in prison that flowed from absconding after conviction while on bail that is a matter for the law of the requesting State. I am unable to conclude that such a sentence is so egregious as to make it in some way unjust or oppressive to return the person convicted to face sentencing in accordance with such a law or sentencing practice of a requesting State.
Of course this may never happen, as the respondent himself says. He may indeed get full credit for the time spent in custody here when sentence is being imposed. Ironically, he says that too would be an unjust, oppressive or invidious outcome. He should not, he says, now be extradited to serve what can only be a sentence of about 1½ months at most.
The one thing which we do know about the applicable English law in this case, as was agreed by the parties, is that the English Court has a discretion to impose a sentence of up to six months imprisonment or a fine. Thus it may impose a suspended prison sentence or no prison sentence at all and impose a fine only. That could be a very modest fine, for all we know. That is the case now and it was always the case. He could have been sentenced if he wished in 1995 or since then if he answered his bail obligations.
The respondent admittedly committed a crime in the United Kingdom, there was a victim and a conviction before a Court. That Court requires the respondent to answer to it for his crime in accordance with the conditions of bail which he accepted at the time but broke. The extensive lapse of time in the meantime has been entirely related to his own breach of bail, his resistance here to being brought back to answer his bail and the time spent in prison his activities as a criminal here. I recall that he spent virtually eight years in prison here for his own crimes. By virtue of that lapse of time flowing from those events he wishes to be rewarded by being spared to answer to the Court before which he was convicted. The victim of that crime might well wonder why he should not at least appear for sentencing.
The sentence or penalty which might be imposed upon him on his return may indeed, as the respondent contends in his second hypothesis, be very light but I do not consider that is a good reason for considering it would be unjust, oppressive or invidious to direct that the respondent be returned to the United Kingdom to answer for his crime by being sentenced within the discretion of a Court in accordance with the law of the requesting State. Neither do I think that it could be considered a ‘futile’ exercise.
I would therefore allow the appeal.
