Supreme Court dismisses three appeals regarding extradition proceedings and judicial review of Garda conduct.

THE SUPREME COURT

Denham J.

Hardiman J.

McCracken J.

Appeal No. 175/2003

IN THE MATTER OF AN APPLICATION UNDER SECTION 50 OF THE EXTRADITION ACTS 1965-2001

BETWEEN

WAYNE PATRICK LYNCH

APPLICANT/APPELLANT

AND

PATRICK O’TOOLE

RESPONDENT

JUDICIAL REVIEW

Appeal No. 176/2003

BETWEEN/

WAYNE PATRICK LYNCH

APPLICANT/APPELLANT

AND

THE ATTORNEY GENERAL AND PATRICK O’TOOLE

RESPONDENTS

Appeal No. 157/2003

IN THE MATTER OF AN APPLICATION UNDER SECTION 47 OF THE EXTRADITION ACTS 1965-2001

BETWEEN/

THE ATTORNEY GENERAL

APPLICANT/RESPONDENT

AND

WAYNE PATRICK LYNCH

RESPONDENT/APPELLANT

Judgment delivered on 24th day of July, 2003 by Denham J.

1. Appeals

Wayne Patrick Lynch, hereinafter referred to as the applicant, has brought three appeals to this Court, all relate to an extradition

application. The first is an appeal from an order of the High Court under s. 50 of the Extradition Act, 1965, as amended; the second is

a judicial review; and the third arises from s. 47 of the Extradition Act, 1965, as amended.

2. Undisputed Facts

The learned High Court judge found that there were undisputed facts. Thus, the applicant, who was born in Dublin on the 14th March,

1975, was at all times an Irish citizen and domiciled in this country. On the 15th October, 2000 having been in England for a short

period of time it is alleged against him that at Stevenage, Hertfordshire, he unlawfully and maliciously wounded one Sayed Nader Seifi

with intent to do him grievous bodily harm contrary to s. 18 of the Offences Against the Persons Act, 1861, and secondly on the

same occasion that he unlawfully and maliciously wounded the said Mr. Seifi contrary to s. 20 of the Act of 1861. Shortly after the

alleged commission of these alleged offences he was arrested and questioned by the police and some hours later he was given station

bail, a condition of which compelled him to appear at a later date at the local magistrates court. This he failed to do and a bench

warrant was issued for his arrest at some unspecified date. Apparently because of alleged threats to his person the applicant

returned to Ireland within a day or two of the 15th October and accordingly he failed to honour his bail conditions. On his return to

this jurisdiction he resided with his mother at 4, St. Auden’s Terrace, High Street, Dublin 8 which was and is the family home. He

stayed at this address until June, 2002 when, for approximately four weeks, he moved with his girlfriend to Ballycullen. Thereafter he

resided at 127, Cooley Road, Drimnagh where he was arrested pursuant to the warrants in this case. At all stages he lived openly and

whilst at High Street he signed on for certain periods at Bishops Street Labour Exchange and also was in receipt of a rent allowance

from the Health Board at Drimnagh. At no time did he return to the United Kingdom or otherwise leave this jurisdiction.

On the 20th September, 2001 a Justice for the Hertfordshire commission area, being a judicial authority in England and Wales, issued

a warrant, identified as “Warrant A”, for the applicant. This alleged that on the 15th October, 2000 at Stevenage he committed the s.

18 offence against the said Mr. Seifi and in respect thereof it directed that constables of the Hertfordshire constabulary arrest the

applicant and bring him immediately before the magistrates court. A similar warrant, identified as “Warrant B”, was issued on the same

day in respect of the alleged offence contrary to s. 20 of the 1861 Act.

On the 3rd October, 2001 these warrants were received in this jurisdiction. On the 8th November the advice of the Attorney General

was obtained and on the 15th November these warrants were approved by the Department of Justice. On the 9th September, 2002

the third named respondent in the judicial review proceedings, Assistant Commissioner Patrick O’Toole, endorsed these warrants and

they were executed by Sergeant O’Neill on the 1st October, 2002. The applicant’s arrest on that occasion was at 127, Cooley Road,

Drimnagh, Dublin 12.

The applicant was involved in two incidents which gave rise to the preferment of criminal charges against him in this jurisdiction. On

the 21st May, 2000 in Kilkenny it was alleged that the applicant was in unlawful possession of drugs contrary to s. 3 of the Misuse of

Drugs Act, 1977, as amended, and also that he had possession of such drugs for the purpose of sale or supply contrary to s. 15 and

s. 27 of that Act. Having failed to attend at the District Court, the resulting bench warrant was executed, in the context of the

second set of criminal charges against him, by Sergeant Lyng from Kilkenny Garda station on the 4th October, 2001. Ultimately on the

13th November of 2001 he was sentenced, on a plea, to twelve months on each charge with the entire period thereof being

suspended.

In September, 2001 Detective Garda Philip Rowe, from Harcourt Terrace Garda station, Dublin 2, received a complaint in relation to a

stolen cheque where an endeavour to obtain IR£18,700.00 by false pretences had been made at the Bank of Ireland, College Green.

Apparently the cheque had been stolen on the 10th September from offices in Merrion Square and had been lodged by the applicant

to his own account at College Green some days later. On the 1st October, 2001 Garda Rowe arrested the applicant at 4, St. Auden’s

Terrace, High Street in respect of the stolen cheque and detained him pursuant to s. 4 of the Criminal Justice Act, 1984. On Harcourt

Terrace charge sheet numbers 1531/2001 and 1532/2001 the applicant was charged with intent to defraud the manager of the Bank

of Ireland, College Green of IR£18,700.00 by falsely pretending that the subject cheque was good and valid order contrary to common

law and, secondly, that he had lodged the stolen cheque knowingly or believing the same to have been stolen contrary to s. 33 of the

Larceny Act, 1916, as amended by s. 3 of the Larceny Act, 1990. He was released on station bail and remanded to appear at Court

45 of the Dublin Metropolitan District Court on the 4th October, 2001.

Between the date of his arrest and the remand date Garda Rowe confirmed what he suspected on the 1st October, namely, that a

bench warrant from Kilkenny District Court existed for the accused and accordingly he arranged for Detective Sergeant Jim Lyng to

execute the warrant on the 4th October. On that date the applicant was arrested and taken into custody. Consent was forthcoming

to independent bail which the applicant took up but only after spending some days in prison.

Between October, 2001 and February, 2002 the applicant appeared on remand before the District Court on several occasions while

the book of evidence was being prepared. Apparently the District judge had refused jurisdiction to deal with the aforesaid charges in

the District Court. Ultimately on the 1st February, when the book was still not ready, the District Court struck out the said charges

against the applicant. The same were never reactivated, with the Director of Public Prosecutions finally indicating on the 22nd

August, 2002 that the applicant should not be recharged for these offences. That information was communicated to Garda Rowe on

the 5th September, 2002. On the 1st October, 2002 the warrants from England were executed by Sergeant O’Neill.

3. Disputed Facts

In the High Court there were disputed facts. The applicant alleged that in September, 2001 Garda Rowe informed him that the Garda

authorities had received from their English counterparts a warrant involving the applicant but that if the applicant furnished certain

information to Garda Rowe about any other person or persons involved in the stolen cheque then the English warrant would not be

executed. Reference was also made to a warrant from Kilkenny. In response to this conversation the applicant indicated that he

would not be able to assist the Garda in implicating any person or persons. He deposed that in reply Garda Rowe said that the

applicant would have plenty of time to think about it but that if cooperation was not forthcoming the English warrant would be

executed. These facts alleged by the applicant were denied by Garda Rowe. On this issue the learned trial judge held:

“Having considered the entirety of the evidence, which, as I have previously stated, also included the cross-examination of Mr.

Terence Lynch, I have come to the conclusion that the disputed allegations made by the applicant, in all their material and

substantive respects, were, on the balance of probabilities, made out and sustained by him. I have so decided not only on an

assessment of the witness’ individual demeanour and manner in the witness box but also because, as is evident from what is

hereinafter summarised, a great deal of what Mr. Lynch asserts is in fact borne out and corroborated by the evidence of Garda

Rowe himself. Moreover, in arriving at this decision, I have been influenced by the evidence of Mr. Terence Lynch which I regard

as being utterly credible and entirely reliable.”

The learned trial judge considered in detail the conflicting evidence, largely that of the applicant and Garda Rowe. He held:

“Where therefore there is a conflict between the applicant’s evidence in the areas above covered and that of Garda Rowe, I

have both a preference for and a commitment to accept that of the applicant above that of Garda Rowe.”

4. Condemned

The learned trial judge concluded:

“In conclusion, therefore, I determine as a matter of fact that the evidence given by the applicant, supported in part by his

uncle and peripherally by his mother, as to certain conversations which he had with Garda Rowe, is accurate and that during

the course of those conversations, as outlined above, various references were made to the English extradition warrants in the

context of requesting from Mr. Lynch his help and cooperation not only with regard to other persons involved in the stolen

cheque but also with regard to illegal activity of a general nature in the drug trade. I believe that Mr. Lynch was seriously

concerned at the reference to the execution of the warrant and at the threat of the immediate revocation of his bail and that

at regular intervals thereafter he was reminded of the continuing existence of the then unexecuted warrant (s). I must

conclude as I do that the intention and purpose of these conversations was to encourage and exert pressure on the applicant

to furnish the information as requested. This went far beyond normal questioning, proper interrogating, good investigatory or

acceptable detective work and seriously trespassed in an area where Detective Garda Rowe had no right to be. A once off

request for information sought in the same breath as a reference to the unexecuted U.K. warrants, would in itself have been

objectionable, but the pattern and repeated interventions were in my view wholly unwarranted and unsustainable in law. Such

behaviour can only be condemned by this court and that I so do.”

The learned trial judge then identified the issue of law as being whether in such circumstances, by reason of the findings of the court,

it would be legally justified in refusing the applicant’s extradition and directing his immediate release. The High Court held:

“In my respectful opinion, notwithstanding this court’s finding on the interchanges between the applicant and Garda Rowe, I

cannot identify any constitutional right of Mr. Lynch which has been infringed by this conduct. If what Garda Rowe did could be

said to constitute an inducement it failed. If more accurately it could be described as a threat it likewise failed. This is not a

case where as a result of some improper representation, motivated by an impermissible purpose or desire, some admission or

confession was made, some goods or property recovered or some other material established or identified. The question of

statements being voluntary or involuntary or the application of the judge’s rules, or the admission or exclusion of evidence,

simply do not arise in relation to either Mr. Lynch or any third party. This is because the applicant did not at any time give to

Garda Rowe about himself or any third party the information requested or any information. Therefore the reason, namely to

maintain the minimum of essential standards, as given by Griffin J. in People v. Shaw [1982] I.R. 1 at 61 as an additional basis

for the court’s power to exclude a statement by an accused person though technically voluntary, can have no application here.

Whilst the manner in and purpose of the Garda’s approach was incorrect and improper, nevertheless no consequences adverse

to the applicant resulted therefrom.”

4. Appeal

From the above decision the applicant has appealed, in a s. 50 appeal, on the following grounds:

“1. Having regard to all the facts set out on affidavit in the proceedings herein and the law, the learned trial judge erred in fact

and in law in failing to grant the relief sought.

2. The learned trial judge erred in fact and in law in failing to take into account the unexplained delay of approximately one year

on the part of the United Kingdom authorities in issuing the warrants.

3. The learned trial judge erred in fact and in law in finding that the period of time from the failure of the applicant/appellant to

appear in court in the United Kingdom and the subsequent period to the date of execution of the warrants arising from the said

failure to appear did not amount to a lapse of time under s. 50 (2) (bbb) of the said Acts.

4. Having regard to the findings of fact made, the learned trial judge erred in law in failing to determine that there were

exceptional circumstances which in all the circumstances would render the rendition of the applicant/appellant unjust,

oppressive or invidious: in particular on the grounds that the procedures adopted by the Gardai and condemned by the learned

trial judge amount to an abuse of process and a breach of the applicant’s constitutional rights to be dealt with in accordance

with law which led to the said delays on the part of the authorities in this jurisdiction.”

5. Decision on s. 50 proceedings

The ground pursued by the applicant under s. 50 of the Extradition Act, 1965, as amended, was s. 50 (2) (bbb). This relates to the

issue of delay. It was submitted that the delay in the case was to be viewed in light of the circumstances of the case and was such

as to bring the applicant within s. 50 (2) (bbb).

In essence, on this appeal, counsel for the applicant submitted that because of the acts of Garda Rowe the extradition application

should not proceed. He submitted that by reason of what Garda Rowe did in October and November, 2001 the extradition process

should be stopped because it was tainted.

Clear facts were found by the learned trial judge on the evidence before him, which he was entitled to find, as to the conduct of

Garda Rowe. This conduct the learned trial judge condemned. I would uphold that condemnation. The learned trial judge decided that

in the circumstances, even with the findings of the court as to the acts of Garda Rowe, that the extradition should not be refused.

The High Court could not identify any constitutional right of the applicant which had been infringed. Further, as the learned High Court

judge pointed out, if what Garda Rowe did could be said to constitute an inducement it failed and likewise if it could be described as a

threat it failed.

I am quite satisfied that the learned trial judge was correct, there was evidence upon which he was entitled to find the facts as he

did, and further it was entirely appropriate to condemn Garda Rowe. However, that being the case the situation remains that no

benefit was achieved for the prosecution by the actions of Garda Rowe. No statement was made by the applicant. No evidence was

obtained from the applicant. The applicant was not prejudiced as a result of Garda Rowe’s conduct. Thus while the conduct of Garda

Rowe is to be condemned it had no effect on the extradition proceedings.

Extradition, (in this case, in fact, rendition between Ireland and the jurisdiction of England and Wales) arises from an agreement

between States whereby persons may be extradited or made subject to rendition between the jurisdictions. The Extradition Act of

1965, as amended, sets out the procedures. Under s. 50 of the Act of 1965, as amended, there is a right of appeal and this the

applicant took.

Counsel for the applicant argued that the delay in this case was sufficient to bring it within s. 50 (2) (bbb) and that the lapse of time

involved, although it is a great deal shorter than in any of the previous cases decided under this section, should be considered by the

court appropriate to bring it within the section because of the facts of the case. Reliance was placed on State (Trimbole) v.

Governor of Mountjoy Prison [1985] I.R. 550.

Section 50 provides:

“50(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this

section.

(2) A direction under this section may be given by the High Court where the Court is of the opinion that -

…

(bbb) By reason of the lapse of time since the commission of the offence specified in the warrant for the conviction of the

person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the

circumstances, be unjust, oppressive, or invidious to deliver him up under s. 47 …”

As the learned High Court judge pointed out, in Kwok Ming Wan v. Conroy [1998] 3 I.R. 527 Hamilton C.J., in considering s. 50 (2)

(bbb) of the 1965 Act (as amended) said, at p. 532 of the report:

“Before the High Court can direct the release of a person arrested under the Act of 1965 (as amended) it must form the opinion

that by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person

named or described therein of that offence and other exceptional circumstances, it would having regard to all the

circumstances, be unjust, oppressive or invidious to deliver him up under s. 47 of the Act of 1965 as amended.

There are, by virtue of the terms of the said sub-section, three factors which must be taken into account by the trial judge in

the formation of his opinion that it would be unjust, oppressive or invidious to deliver up the person arrested, viz

(i) lapse of time,

(ii) other exceptional circumstances, and

(iii) all the circumstances of the case.”

The learned trial judge reviewed the relevant caselaw and held:

“As can be seen most of the cases above mentioned, demonstrate the existence of very long periods with the shortest time

span being three years and four months. In this case, even if one takes the latest possible event for the purposes of computing

dates, the time span involved is still only two years and four months (approximately) and thus falls short of the period in MB v.

Assistant Commissioner Conroy, supra, by almost one year. In these circumstances I do not believe that this court would be

justified in treating that period as being sufficient for the purposes of coming within the phrase ‘lapse of time’ in paragraph (bbb)

of s. 50 (2) of the Act. It seems to me that given the special category in which extradition is in, and the sui generis nature of

proceedings thereunder, I could not recognise this period as being sufficient to trigger the further operation of the paragraph in

question. That being so, in my view it is unnecessary to consider what might otherwise amount to ‘other exceptional

circumstances’ in this case, and neither of course is it necessary to consider all of the circumstances and then decide whether

the delivery up of the applicant would be unjust, oppressive, or invidious.”

I agree with and affirm this analysis.

The High Court in this case also referred to the constitutional issue and held

“Given my view that the period in this case is not sufficient to come within paragraph (bbb) of subs. (2) of s. 50 of the Act of

1965, it follows in my opinion that the applicant cannot rely upon this as constituting a sufficient basis to argue that his right to

a trial with reasonable expedition has been breached. If however, that view, per se, is incorrect, then it would be necessary to

consider, inter alia, the reasons for the two year period between October, 2000 and October, 2002, and where the

responsibility lies for such a period. There is no doubt but that the applicant’s failure to stay in England and answer the charges

preferred against him, explains at least part of that delay. When so considered it seems to me that a period of one year for the

making of the extradition request could not be considered excessive. Secondly, I note the reason advanced by Sergeant O’Neill

as to why the warrants were not executed immediately on their receipt in this jurisdiction; which were that the applicant was

before our domestic courts on separate and unrelated criminal charges. In addition of course, when the DPP finally made a

decision in this case, the warrants were executed with reasonable dispatch. Accordingly in these circumstances, without further

inquiry, I could not accept the submission that the applicant’s constitutional right to a trial with reasonable expedition had been

breached.”

I agree with this analysis. Given that the original delay arose because the applicant failed to honour the conditions of bail the initial

delay arose because of his actions. I agree that in the circumstances the period of one year for the making of the extradition request

was not excessive. Further, to restrain from executing requests for rendition while domestic proceedings were in progress, in the

circumstances of this case, was not unreasonable. Also, after the District Court struck out proceedings because the book of evidence

was not ready it was quite reasonable to wait until the Director of Public Prosecutions decided whether the case should proceed or

not. Thus, the delay was explained and was reasonable in the circumstances of this case.

Section 50 (2) (bbb) envisages a specific defence and protection for an applicant. It is a statutory defence which has been analysed

previously in case law. I am satisfied that the applicant has not brought himself within the remit of the section. That is not to say

that s. 50 (2) (bbb) is formulaic in that a specific amount of years or months is needed to trigger the defence. Each case has to be

determined on its own facts.

In this appeal reliance was placed on State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550. It was submitted that the

lapse of time should be viewed differently because of the conduct of Garda Rowe – that the shorter period of time, shorter than has

been successful in other s. 50 (2) (bbb) applications, should bring the applicant within s. 50 (2) (bbb) as a consequence of the

circumstances.

In Trimbole the High Court (Egan J.) held that the object of the original arrest, pursuant to s. 30 of the Offences Against the State

Act, 1939, was to ensure that Trimbole would be available for arrest under the provisional warrant of arrest. He held that such an

arrest amounted to a deliberate and conscious violation of constitutional rights, that there were no extraordinary excusing

circumstances, that his detention in consequent proceedings was tainted by the illegality of his original arrest and accordingly that

Trimbole was to be released immediately. On appeal to the Supreme Court the appeal was dismissed and the judgment of the High

Court affirmed. It was held that the courts have an inherent jurisdiction and a positive duty to protect persons against the invasion of

their constitutional rights, that if invasion has occurred the court should restore as far as possible the person so damaged to the

position in which he would have been if his rights had not been invaded, and ensure as far as possible that persons acting on behalf

of the executive who consciously and deliberately violate the constitutional rights of citizens do not for themselves or their superiors

obtain the planned results of that invasion.

I would distinguish Trimbole from this case. In this case, whereas the court has an inherent jurisdiction and a duty to protect persons

against the invasion of their constitutional rights, there has been no constitutional right identified which has been invaded. Counsel

for the applicant submitted that there was a right not to be put under duress by agents of the State, that there was a right not to

have his freedom of decision oppressed, that his right to silence had been infringed, that his right to speak out voluntarily and not

under compulsion was in issue, that these rights related to a right to privacy. However, I am not satisfied that a constitutional right

has been identified in this case, nor that there has been a breach of a constitutional right of the applicant. In addition, Trimbole may

be distinguished as in that case the applicant was released because the State had achieved a result which was tainted. In this case

the State received no result, tainted or otherwise.

Also, while the Supreme Court affirmed the order of the High Court and released Trimbole it was not with a view to the proceedings

being barred forever. Thus, McCarthy J. stated, at page 585:

“During the course of argument, the question was canvassed as to whether or not the prosecutor could be validly arrested and

extradited upon a fresh warrant or set of warrants from Australia. Mr. McBride, as his counsel, expressly conceded that such an

arrest and extradition would be valid. That is not to say that such arrest and extradition might not be challenged; for myself,

however, I would like to make it clear that the views that I have expressed are not to be taken as any indication that the

prosecutor is now seven weeks after his release free from extradition from this country.”

Consequently I am satisfied that Trimbole does not assist the applicant in this case. It is not a relevant authority.

In this case there has been a lapse of time since the alleged events in England. There is, however, an explanation for that lapse of

time which is consistent with the general run of cases. Thus, for example, the delay from February, 2002 to September, 2002 is

explained by the seeking of the decision of the Director of Public Prosecutions as to whether, following the strike out of the

proceedings because of the lack of the book of evidence, the charge was to be re-entered.

The delay in this case, of approximately two years since the alleged offences in England, is a great deal less than in any other case in

which a delay defence under s. 50 (2) (bbb) has been successful. I am not satisfied that the condemned behaviour of the Garda

nullifies the proceedings. Condemned behaviour, if it occurred in a prosecution of an Irish case, and was such as to render a

statement illegal, would have the consequences of rendering the statement illegal and not part of the evidence, but the prosecution

would still proceed. The case would not be nullified. Similarly, in this case, although the conduct of the Garda is to be condemned it

does not nullify the proceedings. The conduct of the Garda is not such as to justify the intervention of the courts so as to stop the

whole process. That is not, of course, to determine that there may not be circumstances where conduct would be such as to nullify

proceedings. That is not to say that if there has been unconscionable behaviour on behalf of a member of a State Agency that it

would not be such circumstances as to stop proceedings. However, that is not the situation in this case. Consequently, I am satisfied

that the applicant’s appeal on the s. 50 proceedings should fail.

6. Decision on judicial review

In this case the applicant sought also judicial review of the decision to render the applicant to England. The factual basis for the

application was the same as on the s. 50 (2) (bbb) application. It was submitted that the impugned activity of Garda Rowe

constituted an abuse of process and that by reason of certain periods of delay his constitutional right to trial with reasonable

expedition had been breached. For the reasons set out above I am satisfied that the applicant can not succeed on the s. 50 (2)

(bbb) application or on this ground. As to the conduct of Garda Rowe, I affirm the findings of the High Court. As to the constitutional

rights issue I also affirm the determination of the High Court which has been set out previously in this judgment.

The judicial review application was an application for an alternative remedy. Clearly, multiple proceedings should not be brought if

unnecessary. In this case issues were raised by the applicant as to constitutional rights. I have dealt with these matters already, and

am satisfied that the applicant has not made out a successful case.

As to whether this or any other alternative remedy is appropriate is a matter for the court when multiple proceedings are issued.

However, if additional and constitutional grounds are raised in judicial review which are not within s. 50 (2) (bbb) then it is appropriate

for an applicant to have access to the High Court to determine the additional issues raised. However, there should be no question of

sequential proceedings. Such proceedings should be taken together by the High Court. Extradition and rendition matters should be

dealt with expeditiously by the courts. Consequently, I affirm the approach of the High Court taken in these cases as well as the

determination.

7. S.47 proceedings

The applicant also brought proceedings seeking relief under s. 47 of the Extradition Act, 1965, as amended. On these proceedings the

applicant raised issues on his arrest. I am satisfied that the learned High Court judge was correct in his determination on these

proceedings and I would uphold his decision. On this appeal counsel for the applicant submitted that Sergeant O’Neill when he was

arresting the applicant had to have a “reasonable suspicion.” However, such a submission is misconceived. An arrest under the

Extradition Act is a statutory arrest and is governed by the procedures set out in the Act, as amended. Part III of the Act deals with

the endorsement and execution of warrants from, amongst other jurisdictions, England and Wales. The procedures are set out clearly

in the statute, and may be seen in s.s. 41 to 55 of the Extradition Act, 1965, as amended. In this case the procedures of the Act

were followed. I would dismiss the appeal.

8. Conclusion

For the reasons given I would dismiss each of the three appeals and affirm the orders of the High Court.