IESC 44 · Supreme Court

[2003] IESC 44

THE SUPREME COURT

157,175,176/03

Denham J.

Hardiman J.

McCracken J.

Between:

WAYNE PATRICK LYNCH

Applicant and Appellant

and

THE ATTORNEY GENERAL, THE CHIEF STATE SOLICITOR and PATRICK O’TOOLE

Respondents

and

IN THE MATTER OF AN APPLICATION FOR RELIEF UNDER SECTION 50 OF THE EXTRADITION ACTS, 1965/2001 IN THE

PROCEEDINGS ENTITLED AND BETWEEN:

WAYNE PATRICK LYNCH

Plaintiff/Appellant

and

PATRICK O’TOOLE

Defendant/Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 24th day of July, 2003.

Procedural background.

1. On the 1st October, 2002 the applicant was arrested on foot of two warrants issued under Part III of the Extradition Act. Having

been brought before the Courts he was remanded in custody. He issued two sets of proceeding: pursuant to leave obtained on the

2nd December, 2002 he issued judicial review proceedings. On the 4th December, 2002 he issued a special summons claiming relief

under s.50 of the Extradition Act, 1965 as amended. Meanwhile, the proceedings under the Extradition Act continued.

2. Section 50 empowers the High Court to direct the release of a person in respect of whom an Extradition Order is sought on a

number of grounds including:-

“Section 50(2)(bbb) By reason of the lapse of time since the commission of the offence specified in the warrant and other

exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver

him up under s.47”

3. The principal reason why Mr. Lynch issued judicial review proceedings as well as proceedings under s.50 is that he claims that, in

the circumstances of the case, the delay involved should preclude his extradition even if the Court considered that it did not meet

the criteria of s.50(2)(bbb).

Factual background.

4. The factual background of this case is most unusual and constitutes Mr. Lynch’s principal basis for claiming relief.

5. It is set out in considerable detail in the judgment of the learned trial judge (McKechnie J.) and neither side has taken exception to

his findings of fact. I gratefully adopt them and set out here only the barest summary necessary to make this judgment

comprehensible.

6. The applicant had travelled to the United Kingdom in the course of 2000. There, in October, 2000 he was allegedly involved in the

incident in respect of which his extradition sought. Prior to going to England however he had been charged with unlawful possession

of drugs contrary to s.3 of the Misuse of Drugs Act, 1977 and possession of such drugs for the purpose of sale or supply, contrary to

ss.15 & 27 of the same Act as amended. This related to an alleged incident in Kilkenny on the 21st May, 2000. The applicant failed to

appear in the District Court in Kilkenny to answer these charges and a warrant was issued for his arrest.

7. In September, 2001 a Detective Garda Philip Rowe from Harcourt Terrace Garda Station was investigating an allegation that a

stolen cheque had been used in an effort to obtain £18,700.00 at the Bank of Ireland, College Green. On the 1st October, 2002, the

same day that the applicant was arrested on foot of the Extradition warrants, he was arrested in respect of the stolen cheque matter

and detained pursuant to s.4 of the Criminal Justice Act, 1984. He was then charged with false pretences with intent to defraud the

manager of the branch mentioned of £18,700.00 by pretending that the said cheque was a good and valid order and secondly with

lodging the said cheque knowing or believing it to have been stolen. In respect of this matter, the applicant made his first court

appearance in the Dublin District Court on the 4th October, 2001.

8. At some point between the 1st and 4th October, 2001 Detective Garda Rowe became aware that there was an outstanding bench

warrant in respect of Mr. Lynch and he arranged for a Detective Sergeant Lyng of Kilkenny to execute that warrant on the 4th

October. Mr. Lynch spent some days in custody before obtaining bail on an independent surety.

9. The subsequent history of these two sets of criminal proceedings is relevant to the point now made in relation to the Extradition

Warrants. On the 13th November, 2001 the applicant pleaded guilty to the drugs charges in Kilkenny District Court and received a

twelve months suspended sentence on each charge.

10. In relation to the cheque charges, the applicant was remanded from time to time in the Dublin District Court between October,

2001 and February, 2002. The learned District Judge declined to accept jurisdiction in respect of the said charges in the District Court

and the case was remanded from time to time so that the prosecution could serve on Mr. Lynch the documents required to enable him

to be sent forward for trial. On the 1st February, 2002 when these documents were not ready the learned District Judge then sitting

in the relevant court struck out the charges. These charges were never reactivated. On the 22nd August, 2002 the DPP directed that

the accused should not be recharged. This direction was communicated to Detective Garda Rowe on the 5th September, 2002.

11. On the 9th September, 2002 Assistant Commissioner Patrick O’Toole, the third-named respondent in the judicial review

proceedings, endorsed the extradition warrants for execution the State. They were in fact executed by a Sergeant O’Neill on the 1st

October, 2002.

Alleged conversations with Detective Garda Rowe.

12. Mr. Lynch alleged that in or about September, 2001 Detective Garda Rowe told him that the guards had received the extradition

warrants from the United Kingdom. Mr. Lynch alleged that the detective then said that if he (Lynch) furnished certain information to

the guards about the other people involved in the stolen cheque matter, the English warrants would not be executed. He says the

Detective Garda also mentioned the outstanding warrant from Kilkenny. Mr. Lynch says that he indicated to the Detective Garda that

he would not be able to assist him. He says that the detective said, in reply to this, that he (Lynch) would have plenty of time to

think about it but that if cooperation was not forthcoming the English warrant would be executed.

13. More specifically, Mr. Lynch says that about the 28th October, 2001 he was interviewed in relation to the stolen cheque. On that

occasion he was told by Detective Garda Rowe of the extradition warrants and the Kilkenny warrant.

14. He says that on the 1st October, 2001 the Detective Garda called to his house and asked for a private word before he attended

court. The Detective then drove Mr. Lynch to the District Court. There was another guard in the car who was identified as Sergeant

Lyng from Kilkenny. He says the Detective Garda asked him whether he was going to help Sergeant Lyng or himself in relation to the

respective sets of charges were against him. He said he could not do this and was then arrested on foot of the Kilkenny warrant and

taken into custody.

15. Mr. Lynch further said that having got bail he attended in the District Court in Cloverhill. After the case had been remanded he

asked the Detective Garda for the return of his mobile phone and a sum of cash which had been taken from him. He was told to

contact the guard at Harcourt Terrace Garda Station. He did this by phone a few days later. He was first told that he could collect

the items at the station but then Detective Garda Rowe enquired of him whether he was speaking from his home. He said he was and

the Detective Garda then said that he would deliver the phone and cash to him at No. 4 St. Auden’s Terrace. He did this about 10pm

and he again asked Mr. Lynch to give him information about other peoples involvement in the stolen cheque case. Mr. Lynch says that

he refused again and was told that he (Detective Garda Rowe) could have him back in custody. He says the Detective Garda knew

that he had been very traumatised at his earlier remand in custody. He says the Detective Garda asked him would he help regarding

people involved in the drugs trade. When he again refused the Detective Garda said that he could have time to think about it and he

would see him in court.

16. Mr. Lynch also says that similar conversations took place on two other remand dates between November, 2001 and January,

2002.

17. Mr. Lynch further alleges that on the occasion when the cheque charges were struck out in the District Court, Detective Garda

Rowe followed him out of court and asked him was he going to help him. He again mentioned the extradition warrants and the fact

that he had found two ecstasy tablets in Mr. Lynch’s possession on the 28th September, 2001.

18. The Detective Garda denied in an affidavit, and in cross-examination, that he promised the applicant that the extradition warrants

would be cancelled or would not be executed in certain circumstances. He says that he never offered Mr. Lynch any inducement or

made any threat against him. He also stated on oath that he did not become aware of the existence of the warrants until November

or December of 2001 so that it wasn’t physically or humanly possible for him to have referred to the warrants at any earlier time, and

specifically in late September. He rejected Mr. Lynch,’s allegations in the strongest terms and said that they were entirely untruthful

and unsupported by facts.

Proceedings in the High Court.

19. Because of this strong conflict of fact, both Mr. Lynch and Detective Garda Rowe were cross-examined on their affidavits before

the learned High Court Judge. Mr. Lynch’s account was, in certain respects, supported by his mother and by Mr. Terence Lynch, his

uncle, who was also cross-examined.

Findings in the High Court.

20. At paragraph 24 of his judgment which was delivered on the 8th April, 2003, McKechnie J. found as follows:-

“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 witnesses individual demeanour and manner in the witness box but also

because, as is evident from what is hereafter 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”.

21. The learned trial judge gave his reasons for this conclusion in considerable detail. Since his findings are not the subject of appeal

it is unnecessary to survey these reasons. However, the fact that the extradition warrants were not actually executed for many

months after the Detective Garda was undoubtedly aware of them, and the Detective Garda’s established actions in twice calling to

the applicant’s home in unusual circumstances were significant. So is the fact that the learned trial judge did not accept that he was

unaware of the warrants until November, 2001. The judge found that the Detective Garda had either threatened, or at least given a

clear impression to the applicant, that his bail could be revoked and he could be taken into custody even on the night on which he

spoke to him in October, 2001. He was satisfied that the Detective Garda’s reference to the warrants were “anything but innocuous”.

22. On foot of these findings, at paragraph 32 of his judgment, the learned trial judge said this:-

“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 these conversations, as outlined above, various references were made to the English extradition

warrants in the context of requesting from Mr. Lynch’s help and cooperation not only with regard to other persons

involved in the stolen cheque but also in regard to a legal activity of a general nature in the drug trade. I believe that Mr.

Lynch was seriously concerned at the references to the execution of the warrant and at the threat of the immediate

revocation of 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 into 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 Judge’s condemnation.

23. I wish wholly to endorse the condemnation by the learned trial judge of the behaviour of Detective Garda Rowe. What he did was

reprehensible. Apart from its unfairness to the applicant, Mr. Lynch, his actions wholly disregarded the obligations of this State under

the extradition or rendition arrangements which it has arrived at with friendly countries, in this case our immediate neighbour. It is

hard to know whether this conduct is more reprehensible if he would indeed have buried or lost the warrants had he got what he

wanted, or if he was lying in saying so. It unfortunately appears that he was lying on oath in his denials on affidavit and in the

witness box of the behaviour which the learned trial judge has found he engaged in.

24. The applicant claims that the behaviour of the Detective Garda, possibly in consort with another guard, was so reprehensible that

it can only be effectively visited, and its repetition discouraged, by preventing the extradition of the applicant. This contention is

dealt with in detail below. In support of it, however, Mr. Mulloy S.C. stated that if the extradition is not prevented, Detective Garda

Rowe will have got away with what he did and there will be no effective discouragement of a repetition of similar behaviour on his part

or that of any other guard.

25. I cannot agree that, in light of the learned trial judge’s finding, it can be said that Detective Garda Rowe has got away with what

he did. A solemn, reasoned, finding of serious wrongdoing against a member of An Garda Síochána by the High Court is not a light

matter either for the member individually or for the force as a whole. One is entitled to assume that it will be noticed by the Detective

Garda superiors. The finding, extending as it does to a rejection of the Detective Garda’s sworn evidence is plainly not without

consequences for his credibility and utility. He is gravely compromised.

Effect of the foregoing on rendition to England.

26. A significant part of the applicant’s case, both in support of his own proceedings, and in opposition to his proposed rendition to

the jurisdiction of the Courts in England and Wales, is based on the facts alleged by the applicant, and in large measure accepted by

the learned trial judge, as to the behaviour of gardaí in relation to his rendition. This is said to entitle to him to relief on the grounds

of delay pursuant to s.50(2)(bbb). Separately, in his judicial review proceedings, the applicant relies on the same facts as establishing

an abuse of process and an interference with his right to trial with reasonable expedition. There is no evidence, however, that the

applicant has been prejudiced in his ability to meet English charges.

27. Apart from the question of the passage of time, the applicant alleges that he has a constitutional right not to be treated in the

manner in which he was, not to be made subject to threats and inducements, which it is said amount to oppressive treatment.

Furthermore, it is said that in so acting the gardaí are to be regarded as the agents of the State and of the law officers so that their

actions are to be regarded as those of the latter.

28. In support of the relief sought on the above grounds, the applicant relies on a considerable number of dicta in the decided cases.

In particular he relies on the following statement of Walsh J. in Ellis v. O’Dea [1990] ILRM 87:-

“All persons appearing before the Courts of Ireland are entitled to protection against all unfair or unjust procedures or

practices. The obligation of this State to save its citizens from all such procedures … extends to all acts done within this

jurisdiction and that includes proceedings taken under the Extradition Act, 1965. There is nothing in the Act of 1965

which could be construed as purporting to permit to be exposed any person, the subject of extradition proceedings, to

procedures which the Constitution would not tolerate”.

29. That case was, however, dealing with procedures to which a person whose extradition was sought might be subjected in the

country to which he was to be delivered. The omitted portion of the extract from the judgment, signified in the applicant’s written

submission by a series of dots, is as follows:-

“It goes without saying therefore that no person within this jurisdiction may be removed by order of a court or otherwise

out of this jurisdiction where these rights must be protected to another jurisdiction if to do so would expose him to

practices or procedures which have exercised that in this State would amount to infringements of his constitutional right

to fair and just procedures”.

30. No complaint was made by the applicant about the procedures to which he would be subjected in the Courts of England and

Wales. Instead, his complaints relate to use of the request for rendition to obtain advantages for the prosecution in other Irish

criminal proceedings in which he was involved, and the delay in taking steps on foot of the rendition request necessitated by that

ploy.

31. In The State (Trimbole) v. The Governor of Mountjoy Prison [1985] IR 551, the applicant had been arrested under s.30 of the

Offences against the State Act. The next day his period of detention under that provision was extended for twenty-four hours. And

about the same time the Government made an order applying Part II of the Extradition Act to Australia. Later the same day, the High

Court held that his arrest and detention under the Offences against the State Act was illegal because (contrary to the sworn

evidence of gardaí) there had been no genuine suspicion that he had committed a relevant offence.

32. In further proceedings under Article 40 of the Constitution it was held that the object of the arrest under s.30 had to be ensure

that Mr. Trimbole was available for the execution of a provisional extradition warrant from Australia and that the arrest had amounted

to a deliberate and conscious violation of his constitutional rights, without extraordinary excusing circumstances; that his subsequent

detention was tainted by the illegality of his original arrest and he was entitled to be released. The Supreme Court upheld this finding.

McCarthy J. said:-

“If, then, the executive itself abuses the process of law as in this case by the wrongful use of s.30 of the Offences

against the State Act, 1939, and, for what it is worth, persists in that abuse by giving false evidence in the course of the

constitutional inquiry, are the Courts to turn aside and apart from administering severe strictures to those concerned,

appear to sanction the procedure that has been adopted to secure the extradition of an individual to the requesting

State?

33. That part of the executive represented by the Garda authorities and those others responsible for what I have termed the plan to

extradite [Mr. Trimbole] must not be permitted to think that conduct of this kind will at worse result in a judicial rebuke, however

severe. It will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned

whatever the consequences may be. If the consequences are such as to enable a fugitive to escape justice then such consequences

are not of the Court’s creation; they stem from the police illegality”.

34. No-one could doubt the principles thus eloquently expounded by McCarthy J. Adherence to them is necessary if the rule of law is

to be maintained. But the relief granted in that case was granted on the basis that Trimbole’s availability for the execution of the

Extradition Warrant was the direct consequence of the false arrest. It is quite clear that no relief would have been granted in the

absence of that causal relationship. This is clearly demonstrated by the final passage in the judgment of McCarthy J. from which it

appeared that Trimbole’s counsel conceded that his client would then, seven weeks after his release under Article 40, have been

amenable to an arrest on foot of a fresh warrant from Australia. The learned judge said “I would like to make it clear that the views

that I have expressed are not be taken as an indication that the prosecutor is now seven weeks after his release free from extradition

from this country”.

35. The underlying reason for that position is as follows. The Courts do not exercise a general disciplinary power over the executive,

or the gardaí in particular. That power is vested elsewhere. The role of the Courts is invoked when, in the course of properly

constituted proceedings, a complaint is made that some step or thing adverse to an individual has been taken, or come into being, on

the basis of an illegality or an unconstitutional act on the part of his opponents. If this has occurred, the Courts will not normally

permit the opponent to have the benefit of what flows from an unconstitutional act, in the interests of upholding the Constitution

itself. But it will not interfere with a procedure, otherwise proper, on the basis of disapproval of some step taken in its general

context. Thus, in Trimbole, there was no suggestion that the person whose extradition was sought could be permanently immune

because the Gardaí had given false evidence in support of the original arrest.

36. On the same principle, I do not believe that the behaviour of the Detective Garda in this case in itself has the effect of

invalidating, or rendering inoperative, the request for rendition which is otherwise regular. I repeat this does not mean that the

Detective Garda has “got away with it”: the High Court’s unappealed findings of fact are in themselves a grave matter. It would be

disturbing indeed if the Garda Authorities did not consider what action might be appropriate on foot of them, if any. But these actions

were without fruit either in relation to the rendition proceedings or the criminal proceedings, on the findings of the learned trial judge.

This being so (and subject to what is said about delay below) the misdeeds of a member of An Garda Síochána cannot have the

effect of stymieing action on foot of a request for a rendition under a statutory scheme reflecting an agreement between the State

and another sovereign State. To permit the Garda’s misdeeds to have this effect would be to put the agreement between Nations at

the mercy of any single member of the police force who, through malevolence, stupidity or a failure to recognise the importance of

observing elementary legal principles, committed an irregularity.

37. Furthermore, though a member of An Garda Síochána may frequently act as the agent of the executive or of the law officers, I

am far from holding that he is in all circumstances their agent acting as such. He will often be so regarded by those with whom he

deals and may even take steps to induce that belief. There are many circumstances in which it would be inequitable to hold that the

State could resile from that proposition. But in a case like the present where his actions were without fruit, it would be wholly

disproportionate to inflict a penalty for them on the State or the law officers who, as far as the evidence goes, were wholly unaware

of what he was doing, and more specifically on a friendly State seeking to operate a long standing arrangement for rendition.

38. I would add that what is said above about the Courts not having a general disciplinary role in relation to the Gardaí is posited on

the assumption (which I believe we are entitled and, in the absence of evidence to the contrary, obliged to make) that the Gardaí are

and remain under effective discipline and control at the hands of their authorities. This has the corollary which is mentioned above,

that one is entitled to assume that findings of facts such as those in the High Court will be noticed by those authorities. If for any

reason it were demonstrated that this assumption was unrealistic and that the authorities were prepared to connive at, or to ignore,

conduct such as occurred in this case, the situation would be transformed. In such circumstances, which I reiterate are not those

obtaining at present, it would be necessary to recall the oft quoted words of Ó Dálaigh C.J. in The State (Quinn) v. Ryan [1965] IR

70, at 122:-

“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should

be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and

that the Courts were the custodians of those rights. As a necessary corollary it follows that no-one can with impunity set

those rights at nought or circumvent them, and that the Courts powers in this regard are as ample as the defence of the

Constitution requires. Anyone who sets himself such a course is guilty of contempt of the Courts and is punishable

accordingly”.

39. In revisiting those plangent words, it is also necessary to remind oneself that in Quinn’s case, the Courts were powerless to

vindicate his rights in an effective fashion. As a result of an unconstitutional abduction by English and Irish police officers, Mr. Quinn

was lodged in prison in England where he remained notwithstanding contempt proceedings against the police officers involved. If the

Courts intervention in a matter such as the present were, in changed circumstances, to be called for, it would have to be practically

effective in the individual case.

40. I stress that these observations do not apply to the present circumstances but rather to what Ó Dálaigh C.J. himself in Melling v.

O Mathghamhna [1962] IR 1 referred to as a contingency which might arise in “an improbable but not-to-be-overlooked future”.

The constitutional rights.

41. I have already noted that, subject to what is said below about delay, no specific detriment accrued to the applicant in terms of

the extradition proceedings, or his ability to meet the case against him in England if extradited. Accordingly, I do not find it necessary

in these extradition related proceedings to discuss whether or not the actions of the Detective Garda trenched upon the applicant’s

constitutional rights in general. I would reserve my position on this matter.

Delay.

42. On this aspect I agree with the judgment of Mrs. Justice Denham and have little to add. I note that the initial, and longest, delay

in processing the charges against the applicant in England was caused by his own action in breaching the terms of his bail and

absconding to Ireland. I would also agree, in general, that it may be reasonable to defer acting on a request for rendition if there are

outstanding domestic charges which is bone fide intended to prosecute. However, the determining aspect of this case in relation to

delay is that there is no evidence whatever of actual or presumptive prejudice to the applicant in relation to the English charges.

Arrest.

43. Independent of the submissions relating to the activities of the Detective Garda, the applicant specifically claims relief on the

basis that his arrest on foot of the English warrants was not shown to be lawful. This was on the alternative bases that the arresting

member was not shown to have any reasonable opinion grounding the arrest and on the basis that the member’s entry to the

applicant’s dwellinghouse was not shown to be regular.

44. The evidence in relation to the arrest was that of Sergeant O’Neill. He said that on the 1st October, 2002 he was in possession of

two extradition warrants, certificates and affidavits in relation to the request for a rendition. Armed with these documents he went to

127 Cooley Road, Drimnagh, Dublin 12, the applicant’s dwelling house, and gained admittance to the house. He produced his

identification to the applicant. The latter confirmed his identity and confirmed his former English address in Hertfordshire. The

Sergeant then arrested him.

45. The evidence shows that a person who was indeed the person named in the English warrants was arrested on foot of them at his

dwellinghouse. It is said that it was not demonstrated that Sergeant O’Neill had a reasonable suspicion that the applicant was in the

dwellinghouse before entering it. In my view, if a member of the Garda Síochána (or anyone else) is looking for a particular person, it

is entirely reasonable to look first in that person’s dwellinghouse. I do not believe that a garda in that situation is obliged to form any

particular suspicion before seeking a person with whom he has lawful business in that person’s dwellinghouse. There is in this case no

reason to believe that entry to the dwellinghouse was obtained forcibly so that the question of what suspicion, or what authority,

would be necessary to enter forcibly does not arise. It is true that the Sergeant has not described how precisely he gained entry to

the dwellinghouse, but merely says that he did so. I do not regard this as a failure of proof. The arrest is prima facie valid and the

evidence in relation to it has not been challenged. In my view this ground must fail.

Conclusion.

46. I would dismiss all of the appeals and affirm the order of the learned High Court Judge.