Supreme Court dismisses appeal due to lack of jurisdiction over UK Home Secretary's certificate under Extradition Act 1965.

THE SUPREME COURT

Record No. 116/00

Murray, J.

McGuinness, J.

Geoghegan, J.

BETWEEN

JOHN ADAMS

APPELLANT/APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, JUDGE FOR DISTRICT NO. 16 AND HER MAJESTY'S SECRETARY OF STATE FOR

HOME AFFAIRS

RESPONDENTS

JUDGMENT delivered the 6th day of March 2001 by McGuinness J.

The Appellant in these judicial review proceedings has been charged with fifteen counts of rape and sixteen counts of sexual assault

and is awaiting trial in the Central Criminal Court.

On the 27th May 1997 the Appellant, who had been serving a sentence for unrelated offences in Magilligan Prison, was extradited

from Northern Ireland to this jurisdiction in respect of thirty five charges under the Larceny Act 1915, the Forgery Act 1913 and

Section 10 of the Criminal Justice Act 1951. He consented to his extradition. On the 28th May 1997 he pleaded guilty to the charges

in respect of which he had been extradited and received a sentence of three months in respect of each count, all sentences to run

concurrently. He served this sentence. On his release from the Curragh Prison on the 4th August 1997 he was arrested at Newbridge

Railway Station and subsequently charged with thirty one rape and sexual assault offences against three Complainants who resided in

the Dundalk area. The

Appellant's Solicitor, Mr McGuill, in his affidavit grounding the judicial review proceedings avers that the Appellant had been

interviewed by members of the Garda Siochana in connection with the alleged sexual offences both in Magilligan Prison prior to his

extradition and in Mountjoy Prison subsequent to his sentence for the offences in respect of which he had been extradited.

Since the charges on which he was extradited were unrelated to the sexual offences with which he is now charged, it would not, on

account of the rule of specialty, have been possible to prosecute him for the sexual offences unless an appropriate waiver was

provided by the relevant authority in the requested State. On 29th July 1997 the third named Respondent, who, as the relevant

authority in the United Kingdom, is correctly entitled Her Majesty's Secretary of State for the Home Department ( hereafter "the

Home Secretary") issued the required certificate.

It appears that prior to the issue of the present judicial review proceedings the Appellant had brought proceedings in this jurisdiction

pursuant to Article 40.4 of the Constitution and that these proceedings are still in being. It also appears that the Appellant, as a lay

litigant, brought proceedings against the "Secretary of State" in Northern Ireland. On the information given to this Court the position

in regard to these proceedings is far from clear. Firstly it is not entirely clear whether the Appellant's Northern Ireland proceedings

were brought against the British Home Secretary or against the Secretary of State for Northern Ireland. The Court was told that the

Appellant was refused legal aid and that it could not pursue his proceedings, but again it is not clear what stage the proceedings

reached or whether they have been formally discontinued or simply left in abeyance. It appears that they may have been struck out.

On 7th February 2000 an application was made to O'Neill J. in the High Court for leave to commence the instant Judicial Review

Proceedings. In his proceedings the Appellant seeks to prohibit the Director of Public Prosecutions from continuing the prosecution of

the sexual offences now pending before the Central Criminal Court. He also seeks an Order of Certiorari in order to quash the District

Judge's order returning the Appellant for trial. The relief sought against the British Home Secretary in his proceedings are as follows:

"An Order of Certiorari quashing the third named Respondent's certificate dated the 29th July 1997 purporting to waive

specialty in respect of the said offences." And leave to file an additional affidavit on the constitutional position of the third

named Respondent."

The Appellant was granted leave to apply for these reliefs and in his order O'Neill J. also gave directions as to service. Insofar as

service on the Director of Public Prosecutions was concerned, he directed service in the normal way on the Chief State Solicitor; in so

far as the District Judge was concerned he directed service of the order and grounding papers on the relevant District Court Clerk.

Insofar as the Home Secretary was concerned he directed service on "the British Ambassador in Ireland or such other person

authorised to accept service on behalf of Her Majesty's Secretary of State for Home Affairs".

Having obtained the order granting leave, the Appellant's solicitors sought to serve the proceedings by delivering them to the British

Embassy at Merrion Road, Dublin. An official at the Embassy refused to accept this service and directed them to the Foreign and

Commonwealth Office in London. The proceedings were then delivered by hand by an official of the Irish Embassy in London to the

Foreign and Commonwealth Office, and also, on the 2nd March 2000, to the reception desk at the chambers of the Attorney General

in London.

By Notice of Motion dated 14th March 2000 the third named Respondent (the Home Secretary) applied to the High Court to set aside

the order of O'Neill J. and to dismiss the judicial review proceedings as against him. The Motion was heard by Kelly J., who delivered

judgment on the 12th April 2000. In his order of 14th April 2000 the learned High Court judge granted the relief sought by the third

named Respondent, set aside the purported service upon the third named Respondent and discharged the order of 7th February 2000

as against the third named Respondent. He also granted the costs of the motion to the third named Respondent.

The Appellant/Applicant has now appealed against that order.

The Appellant/Applicant's Notice of Appeal contains a considerable amount of what can best be described as legal argument. The

main grounds of appeal as set out in the Notice are as follows:

"1. Such service as was effected was not through the Ambassador; but whether or not the said Respondent could be served in

that manner was not relevant. In any event, the learned trial judge erred in concluding that in proceedings of this nature

(assuming a claim of sovereign immunity would not be upheld) the said Respondent could not be served through his embassy

in the State if the Ambassador or his officials there were willing to accept service......

2. The learned trial judge erred in concluding that in proceedings of this nature (assuming a claim of sovereign immunity would

not be upheld but that service could not be effected through the Embassy) there is no inherent jurisdiction in the High Court

of Ireland to direct service of the proceedings on the said Respondent and/or his principal law officer in London. Inter alia, the

authorities relied on dealt with private law litigation and the Appellant's constitutional right to challenge the Respondents

certificate does not 'stop short at (the Irish equivalent) of the White Cliffs of Dover'.

3. In view of the imminent judgments of the European Court of Human Rights in three Sovereign immunity cases as were

heard in February 2000 (i.e. McElhinny, Aziz, Fogarty), the learned trial judge ought to have adjourned consideration of the

said Respondent's claim to immunity from jurisdiction until those judgments were published. In any event, the learned trial

judge erred in law concluding that, in the context of these proceedings which concern extradition and its aftermath, the

European Convention was not part of Irish 'Law', particularly in the light of Article 29.3 of the Constitution and the said

Convention's incorporation into EEC/EU Treaties and the Belfast Agreement referred to in Article 29 of the Constitution.....

4. The learned trial judge erred in law in concluding that the issue of the certificate in the circumstances could not constitute

an implied waiver of immunity....."

In his judgment Kelly J. criticised what he saw as a failure by Counsel for the Appellant to make full disclosure of both the facts and

the relevant law to O'Neill J. at the time of the making of the ex parte application for leave. The Notice of Appeal sets out detailed

grounds of appeal against this criticism. When the appeal came on for hearing before this Court it was held by the Court that these

remarks by Kelly J. did not form part of this decision and order, were obiter, and were not proper to be dealt with by way of appeal to

this Court.

Written legal submissions were filed on behalf of both the Appellant and the third named Respondent. These dealt in the main with the

issues of service and of sovereign immunity. In addition the Appellant's submission dealt at some length with the position of the

European Convention on Human Rights in Irish law.

At the hearing before this Court, however, the basic of issue of jurisdiction was raised by the Court. It seemed to the Court that the

question as to whether the High Court (or this Court on appeal) had any jurisdiction whatever to judicially review the administrative or

executive actions of a Minister of a foreign government carried out in his own country was fundamental to the entire proceedings. If

such a jurisdiction did not exist, the question of service of the proceedings, and indeed the question of sovereign immunity, did not

truly arise. Senior Counsel for the Appellant, Dr. Forde, submitted that the certificate issued by the Home Secretary on the 29th July

1997 was issued pursuant to an Irish Statutory Instrument (S.I. No. 221 of 1994) and that therefore the High Court had jurisdiction to

quash it through an Order of Certiorari.

Senior Counsel for the third named Respondent, Mr O'Donnell, argued that the Appellant's appeal was totally unsustainable. He

suggested that the Court should consider the "enormity" of what the Appellant sought - that the High Court of Ireland should order

the Minister of a foreign government to deliver up a certificate issued by him in order for it to be quashed. He submitted that the

necessary terminus of the arguments made by Dr. Forde was that there was a generally recognised principle of international law which

was accepted by Ireland under Article 29.3 of the Constitution which permitted the Courts of one country to review and quash the

public law decisions of another country's Minister. Such a proposition was virtually unstateable and was not supported by any

authority. It is also unhistorical in that the jurisdiction of the High Court to grant certiorari was part of the supervisory jurisdiction

over lower tribunals and other public authorities but it is obvious that the Irish High Court cannot supervise foreign authorities.

The Certificate of the Home Secretary

Section 39 of the Extradition Act 1965 deals with the rule of specialty as applied by the State. It provides as follows:

"39(1) This section applies to a person who has been surrendered to the State by a requested country.

(2) He shall not be proceeded against, sentenced or imprisoned or otherwise restricted in his personal freedom for any offence

committed prior to his surrender other than that for which he was surrendered, except in the following cases -

(a) with the consent of the requested country, signified under the seal of a minister of state of that country which seal

shall be judicially noticed, or

(b) where that person, having had an opportunity to leave the State, has not done so within forty five days of his final

discharge in respect of the offence for which he was surrendered or has returned to the State after leaving it.

(3) Where the description of the offence charged is altered in the course of the proceedings, he shall only be preceded against

or sentenced insofar as the offence under its new description is shown by its constituent elements to be an offence for which

he would be liable to be surrendered to the State."

The provisions of Section 39 of the 1965 Act did not at the time apply to extraditions from the United Kingdom.

Section 3(2) of the Extradition (Amendment) Act 1987 permits the Minister for Justice to make certain extensions to the application of

the provisions of Section 39 of the 1965 Act by means of orders. Statutory Instrument No. 221 of 1994, which is entitled "Extradition

(rule of specialty and re-extradition for purposes of Part III of Extradition Act 1965) Order 1994" made provision for the extension of

the rule of specialty to the United Kingdom. The statutory instrument sets out the modified Section 39 in a Table, as follows:-

"39(1) This section applies to a person who has been delivered up to the State under a law corresponding to Part III.

(2) He shall not be proceeded against, sentenced, imprisoned or detained with a view to the carrying out of a sentence or

order for detention, or otherwise restricted in his personal freedom or otherwise dealt with, for any offence committed prior

to his delivery other than that for which he was delivered up, except in the following cases -

(a) with the consent of the Secretary of State in the Government of the United Kingdom of Great Britain and Northern

Ireland signified by a certificate purporting to be given by him or on his behalf, which certificate shall be judicially

noticed, or

(b) where that person, having had an opportunity to leave the State, has not done so within forty five days of his final

discharge in respect of the offence for which he was delivered up or has returned to the State after leaving it, or

(c) where, in proceedings in relation to the offence for which that person was delivered up, he could be convicted for

that other offence under the law of the State.

(3) Where the description of the offence charged in the State is altered in the course of proceedings, he shall only be

proceeded against, sentenced, imprisoned, or detained with a view to the carrying out of a sentence or order for detention,

or otherwise restricted in his personal freedom or otherwise dealt with, insofar as the offence under its new description is

shown by its constituent elements to be an offence for which he would be liable to be delivered up to the State under a law

corresponding to Part III."

The certificate of waiver of the third named Respondent was thus required before the Director of Public Prosecutions, under Irish law,

was permitted to prosecute the Appellant for the alleged sexual offences. (The Appellant clearly had not had "an opportunity to leave

the State" following his discharge from the Curragh Prison). The certificate of the Home Secretary would form part of the evidence at

the trial of the Appellant, and as such would fall to be judicially noticed.

This, however, does not in my view mean that when the Home Secretary who is, one presumes, included in the phrase "the Secretary

of State in the Government of the United Kingdom of Great Britain and Northern Ireland" provides the relevant certificate he is

exercising a power given to him by an Irish Statutory Instrument. The powers of the Home Secretary are derived from his position as

a Government Minister under the British Constitution. Arising from that position he exercises various powers in connection with

extradition both to the United Kingdom and from the United Kingdom. These powers are given to him under English law; they do not

depend on Irish Statutes or Statutory Instruments. Section 39 of the 1965 Act and Statutory Instrument No. 221 of 1994, through

the rule of specialty, circumscribe the power of the Director of Public Prosecutions in this jurisdiction to prosecute persons who have

been extradited to this State. In doing so, inter alia, the Statute and Statutory Instrument require the provision of a particular type

of certificate which in a United Kingdom case is to be provided by a Secretary of State in England. This must clearly be distinguished

from a concept, which seems to me to be unsustainable, that the Irish Statute and Statutory Instrument create a power - a power

which is reviewable by the Irish Courts - in the third named Respondent to provide the certificate in question.

In addition it is surely necessary to consider the possible practical effect of the order sought by the Appellant. Even if the High Court

(or this court on appeal) had theoretical jurisdiction to grant an Order of Certiorari directing that the certificate of the third named

Respondent be brought up to be quashed, how would such an order be enforced? One has only to pose the question to recognise that

the Appellant's position is unsustainable.

Counsel for the Appellant also argues that if Mr Adams is not permitted to continue his proceedings against the third named

Respondent he will be deprived of his constitutional right of access to the Courts. The dismissal of his proceedings against the British

Home Secretary will leave him perfectly free to continue his proceedings in this jurisdiction against the first and second named

Respondents, the Director of Public Prosecutions and the District Judge. While this Court is not in any way dealing with the merits of

his case it would appear from a summary reading of the affidavits that the substance of the Appellant's claim is against the first and

second named Respondents. In his claim he challenges the legal basis on which the State sought and obtained the waiver upon which

the first and second named Respondents are required to rely under Section 39 of the Extradition Act 1965. It is in particular against

the Director of Public Prosecutions as the prosecuting authority that such a claim would lie. Without in any way commenting on the

merits of this claim it is a matter which it is open to the Appellant to pursue in his present proceedings. I do not therefore consider

that the Appellant has been improperly deprived of his right of access to the Courts by the order of the learned High Court judge. In

addition, the dismissal of his proceedings against the British Home Secretary in this jurisdiction does not necessarily deprive him of the

right to pursue whatever claim may be open to him either in Great Britain or Northern Ireland.

On the grounds set out above I would dismiss the Appellant's appeal and affirm the order of the High Court.

Since I would dismiss the Appellant's appeal on these grounds and in particular on the fundamental ground of want of jurisdiction,

there is no requirement for the Court to deal with the question of the service of the Appellant's proceedings or with the question of

the sovereign immunity of the third named Respondent. The Appellant in his notice of appeal claims that in view of the forthcoming

judgments of the European Court of European Rights in three cases which concern the question of sovereign immunity the learned

High Court judge ought to have adjourned consideration of the third named Respondent's claim to immunity until those judgments

were published. It is clear from the considerations set out above that this aspect of the Appellant's appeal must also fail.