Supreme Court allows appeal under Extradition Act 1965 s.50(2)(bbb) due to significant time lapse and oppressive medical conditions.

THE SUPREME COURT

Denham J.

Hardiman J.

Geoghegan J.

S.C. NO. 63 OF 2002

BETWEEN/

MATTHEW ARMSTRONG

PLAINTIFF/APPELLANT

AND

NOEL CONROY

DEFENDANT/RESPONDENT

AND

S.C. NO. 64 OF 2002

BETWEEN/

MATTHEW ARMSTRONG

APPLICANT/APPELLANT

AND

HIS HONOUR JUDGE PETER SMITHWICK AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment delivered on the 10th day of February, 2004 by Denham J.

1. Matthew Armstrong, hereinafter referred to as the plaintiff, has brought two appeals. The first is an appeal against the refusal of

the High Court to grant an order, pursuant to s. 50 of the Extradition Act, 1965 as amended, directing his release. The second is an

appeal from the refusal of the High Court to grant relief by way of judicial review.

2. In the circumstances which have arisen Diarmuid McGuinness, S.C., counsel for the plaintiff, proceeded on the first appeal. Counsel

reserved his right to proceed on the appeal from the decision of the High Court on the application for judicial review.

3. The facts relevant to this appeal are not in dispute. On the 12th May, 1995 the plaintiff was arrested in Bray, County Wicklow,

under a warrant which purported to have been issued by a London Magistrate on the 19th January, 1995. This warrant alleges that on

the 29th June, 1992, within the jurisdiction of the Central Criminal Court for England and Wales, the plaintiff had in his possession a

controlled drug of class A, namely 15.10 kilograms of brown powder containing diamorphine (heroin) with intent to supply it to another

in contravention of s. 4 (1) of the Misuse of Drugs Act, 1971. The plaintiff is a native of Northern Ireland and was at one time a

member of the Royal Ulster Constabulary. He asserts that he is not guilty of the offence alleged against him or of any other offence

relating to the possession or supply of drugs. He stated that he was shocked to find that it is the intention of the Metropolitan Police

in England and Wales to charge him with the offence. The plaintiff set out in his affidavit his version of the events in issue. He

describes his contact with a Superintendent of the RUC in Belfast, and a “sting” operation.

4. The High Court (Ó Caoimh J.) gave judgment on the 18th January, 2002. As to the three matters to be taken into account the

learned High Court judge held:

“In conclusion, I am satisfied that while there has been a lapse of time and there are some circumstances which are somewhat

unusual and might be described as exceptional, that it cannot be said that it would be either unjust, oppressive or invidious to

deliver the plaintiff up under section 47 at this point in time.”

5. The plaintiff appealed against the judgment and order of the High Court.

6. The appeal was listed for hearing on 10th March, 2003 but was adjourned on the grounds of the ill health of the plaintiff. The case

came on for hearing on 19th January, 2004.

7. Counsel for the applicant, moving on the basis of O. 58 r. 8 of the Rules of the Superior Court, moved that the court receive

further evidence upon questions of fact by way of affidavits as to matters which occurred after the date of the decision of the High

Court. No query was raised on the application. The new evidence relates to the health of the plaintiff. Counsel for the State informed

the court that the new evidence was noted, it was not contradicted in any way. Consequently I accept and consider the new

evidence.

8. The new evidence is that on the 23rd February, 2003 the plaintiff suffered a stroke involving his left cerebral hemisphere. This has

resulted in right sided paralysis and speech and language difficulties. While the plaintiff was mute following the stroke he has regained

some speech but has marked expressive aphasia. Dr. David Moorhouse stated, in a report dated 21st August, 2003, his conclusion as

follows:

“This 62 year old right handed male suffered a severe stroke involving his dominant left cerebral hemisphere.

It is now 6 months since the stroke and the patient has ongoing significant neurological deficits including a marked expressive

aphasia and a severe right hemiparesis.

The patient with a collateral history from his wife is suffering from symptoms consistent with post stroke depression which is

well recognised.

Regarding the specific question as to whether in my opinion this patient is fit to be extradited to England to undergo a criminal

trial, at this stage in my opinion he is not medically fit from the neurological standpoint to be extradited or face a criminal trial.

Besides the obvious difficulties, this patient has expressing himself due to the expressive aphasia, it is not clear at the present

time as to whether he has ongoing comprehension difficulties as a result of his stroke, in view of this, one cannot accurately

state whether the patient could fully understand the criminal proceedings if these were to be commenced.”

Dr. Moorhouse pointed out that it was then only six months since the plaintiff had suffered his stroke and that one could allow up to

two years following various types of brain injury, including stroke, before one can state that the patient’s symptoms are permanent.

He noted that the plaintiff had time within which he might recover further and that he should be reviewed at that time.

9. An affidavit was sworn by Samantha Downes, wife of the plaintiff, in which she set out the ways in which the plaintiff’s stroke has

affected his day to day living. This includes a description of his immobility and use of wheelchairs, restriction of movement in his right

arm, an ulcer on his leg, his medication, his attendance at rehabilitation physiotherapy, and his restricted daily routine. It also

includes the averment:

“Anything that requires a degree of concentration is beyond him. He usually falls asleep while watching television. The [plaintiff]

can read but not anything complicated. He also finds that he cannot remember what he has read. He uses the computer but

not to the extent he would have before. He had been a touch typist but he now has difficulty recalling the layout of the keys

on the keyboard. When he tries to reply to e-mails it may take him three quarters of an hour to write 4 or 5 sentences. He has

to check each one and he will often mix up words especially such as he/she and boy/girl.

…

I find that the [plaintiff] is a very changed personality since the stroke.

…”

10. The appeal in issue is that arising under s. 50 of the Extradition Act, 1965, as amended by s. 2 of the Extradition (Amendment)

Act, 1987. Section 50 provides that:

“(1) A person arrested under this part shall be released if the High Court or the Minster 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 opinion that:-

(bbb) 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 section 47 …”

11. Three factors should be taken into account by a trial judge in reaching a determination under s. 50 (2) (bbb) that it would be

unjust, oppressive or invidious to deliver up the person arrested: the lapse of time, other exceptional circumstances and all the

circumstances of the case: Kwok Ming Wan v. Conroy [1998] 3 I.R. 527. The terms “unjust”, “oppressive” and “invidious” are not

defined in the Act, there is a certain degree of overlap between their respective meanings: Fusco v. O’Dea (No. 2) [1998] 3 I.R. 470.

A plaintiff’s ill health may not make his extradition unjust, however, a lapse of time such as to expose a plaintiff to further legal

processes in another jurisdiction in his state of ill health may be oppressive and invidious: M.B. v. Conroy [2001] 2 I.L.R.M. 311.

12. Under s. 50 (2) (bbb) there must be a lapse of time and other exceptional circumstances before all the circumstances are

considered. The lapse of time in this case was conceded by counsel for the State. As to the findings of the High Court, I am satisfied

that it is open to determine that the High Court found that there were other exceptional circumstances, and I do so. Certainly, I infer

from counsel that the only issue which arises on this appeal is the third factor in the s. 50 (2) (bbb) application. The appeal of the

plaintiff proceeded on the basis that there was a single issue for resolution: whether in all the circumstances it would be unjust,

oppressive or invidious to deliver the plaintiff for rendition to England.

13. The plaintiff is in a wholly different position to that in which he was when his appeal proceeded before the High Court. The new

evidence before this court shows that he is physically disabled. However, more importantly from the point of view of this appeal, I am

satisfied on the evidence that he has ongoing comprehension difficulties as a result of the stroke, and he has communication

difficulties because of his expressive aphasia.

14. I am satisfied that the new evidence may be received by the court, pursuant to O. 58 r. 8 of the Rules of the Superior Courts.

However, that does not determine the matter, which arises under s. 50 (2) (bbb) of the Extradition Act, 1965, as amended. The new

evidence relates to a time after the decision of the High Court. As a general rule the Supreme Court is a court of appeal and issues

are determined and facts found in the trial court, usually the High Court. However, exceptional circumstances are recognised, in the

interest of justice. Thus the Rules of the Superior Courts enable the receipt of further evidence upon questions of fact as to matters

which have occurred after the date of the decision of the High Court. It is now appropriate to consider whether such evidence may

be considered under s. 50 (2) (bbb). I consider this issue in the circumstances that the receipt of the evidence by the court was not

contested by the State nor was its relevance under s. 50 (2) (bbb) opposed. I am satisfied that this was an appropriate approach in

the current situation. The essence of s. 50 (2) (bbb) is to prevent the rendition of a person, when by reason of the lapse of time, and

other exceptional circumstances, it would in all the circumstances be unjust, oppressive or invidious. In this case the issue under

appeal is whether having regard to all the circumstances it would be unjust, oppressive or invidious to deliver the plaintiff up. The

court is given a broad discretion, it is a discretion “in all the circumstances.” Further, the purpose of the discretion is important, it is a

discretion to prevent rendition which would be unjust, oppressive or invidious. I am satisfied that the words of the section are

sufficiently broad as to give to the appellate court authority to exercise the statutory discretion with reference to the new evidence.

However, not only do I take this positive view as to how the Act may be construed, but by viewing the section from another aspect I

consider that the result would be the same. For, if the interpretation were otherwise it could result in a decision which was unjust, a

result which the legislature has expressly excluded.

15. This appeal proceeded on the basis of the third factor, that is whether in all the circumstances of the case it would be unjust,

oppressive or invidious to deliver up the plaintiff. However, it does not exclude an issue being raised in the future as to whether new

evidence could be considered as exceptional circumstances, on the basis of the second factor in s. 50 (2) (bbb).

16. The purpose for which the rendition of the plaintiff is sought is important and relevant. The plaintiff is sought to be delivered for a

trial. It is not a situation where he has had a trial and is being sought for sentencing or to complete a sentence. It is not a situation

where he obtained his freedom by a criminal act, such as escaping from lawful custody or breaching conditions of bail. The

proceedings in London against him have yet to commence.

17. Further, the nature of the trial is a relevant and important consideration. It is a charge to which the plaintiff has indicated his

innocence. It is apparent that his defence will rest on pleading a complicated situation, including a police “sting”, thus a complex trial

may be envisaged.

18. M.B. v. Conroy

In M.B. v. Conroy [2001] 2 I.L.R.M. 311 Keane C.J. stated at p. 319:

“Mr. Edward Comyn S.C. on behalf of the defendant submitted that, since the state of the plaintiff’s health would not be a

relevant consideration in determining whether he should stand trial in this jurisdiction it followed logically that it could not

constitute an ‘exceptional circumstance’ which could be taken into account in applying the provisions in question. In this case,

he said, it could not be suggested that the plaintiff would be physically unable to attend the proceedings or would be incapable

of instructing his legal advisers and that, accordingly, it followed that his health was not a factor to be taken into account in

determining whether it was unjust, oppressive or invidious to deliver him up under the 1965 Act. The condition of the plaintiff’s

health would be relevant, if at all, to the question of sentence and it was clear that, under the law of the United Kingdom, it

could be taken into account by the court in Manchester in imposing sentence. It was also to be borne in mind, he said, that

Part III of the 1965 Act dealt solely with extradition between this country and the United Kingdom and that, accordingly, this

court could approach the case on the basis that appropriate hospital and medical facilities would be available to the plaintiff in

the requesting jurisdiction.

I am satisfied that Mr. Comyn is correct in submitting that these considerations, coupled with the plea of guilty, must lead to

the conclusion that it would not be ‘unjust’ in the circumstances of the present case to permit the plaintiff’s extradition.”

The circumstances in this case are different to those in M.B. For example, the plaintiff’s physical health is greatly compromised, as is

his ability to comprehend, and thus his capacity to construct his legal advisers. Further, he is not being returned after a conviction

for sentencing, rather he is being sought to be delivered for a complex trial.

However, on the facts in M.B., Keane C.J. went on to hold, at pp. 319-320:

“That, however, does not conclude the matter. S. 50 (2) (bbb) has been engrafted onto the original provisions of the 1965 Act

so as to enable a person to resist extradition on the ground that the lapse of time coupled with other exceptional circumstances

would render his extradition, inter alia, oppressive or invidious. In the present case, had the extradition been effected with

reasonable expedition, the plaintiff would have been sentenced and – assuming a custodial sentence was appropriate – would

have served at least part of his term of imprisonment before his health began to deteriorate. In the light of the undisputed

evidence as to his present medical condition, I am satisfied that the significant lapse of time in this case, for which the

prosecuting authority in the requesting jurisdiction must bear some responsibility, has led to a situation in which to expose the

plaintiff to further legal process in England in his present state of health would, in all the circumstances, be oppressive and

invidious. I am satisfied that the inaction of the prosecuting authorities and the plaintiff’s state of health were ‘exceptional

circumstances’ within the meaning of s. 50 (2) (bbb) and that the learned trial judge was correct in ordering his release.”

In this case there has been a lapse of time and exceptional circumstances. There is undisputed evidence as to the plaintiff’s medical

condition. In the circumstances of this case, I do not consider it a weighty factor that a final determination that the symptoms are

permanent has not yet been made. While that might be very relevant in another situation, in all the circumstances of this case the

absence of a final diagnosis is not a bar to the exercise of the jurisdiction. The issue then is whether in all the circumstances it would

be unjust, oppressive or invidious to deliver him up.

19. The words “unjust”, “oppressive” and “invidious” are strong words which I would not attempt to define definitively. They raise

concepts which should be applied in all the circumstances of a case. “Unjust” suggests unfair, an absence of fair treatment.

“Oppressive” indicates oppression of a person, harsh or cruel treatment. I consider that these concepts are relevant to this appeal

and I apply them accordingly.

20. I am satisfied that the plaintiff, as a consequence of a stroke, has mental impairment (which I infer would compromise his ability

to instruct his legal advisors and to conduct his defence in a trial) and physical disabilities, which are circumstances relevant to this

application. These factors, together with the fact that he is sought to be delivered for a complex trial, create a situation which in all

the circumstances it would be unjust and oppressive within the meaning of s. 50 (2) (bbb) to deliver up the plaintiff under s. 47.

21. Accordingly, for the reasons given, I would allow the appeal on the application of the plaintiff under s. 50 (2) (bbb) of the

Extradition Act, 1965.