Supreme Court allows extradition appeal due to exceptional medical circumstances and oppressive detention conditions.

THE SUPREME COURT

Appeal No. 63/02

Denham J.

Hardiman J.

Geoghegan J.

IN THE MATTER OF THE EXTRADITION ACTS, 1965-1994

BETWEEN/

MATTHEW ARMSTRONG

Plaintiff/Appellant

and

NOEL CONROY

Defendant/Respondent

THE SUPREME COURT

Appeal No. 64/02

BETWEEN/

MATTHEW ARMSTRONG

Applicant/Appellant

and

HIS HONOUR JUDGE PETER SMITHWICK AND THE ATTORNEY GENERAL

Respondents/Respondents

JUDGMENT of Mr. Justice Geoghegan delivered the 10th day of February 2004

These are two appeals brought together before this court. They were heard together in the High Court by Ó Caoimh J. Both sets of

proceedings arise out of an order of the President of the District Court, Judge Smithwick, on the 24th September, 1998 directing that

Matthew Armstrong, the above-named applicant and appellant in each case be delivered into the custody of the London Metropolitan

Police pursuant to a warrant purporting to have issued on the 19th of January, 1995 by a magistrate sitting at Highbury Corner

Magistrates Court in the Inner London area. The second of the two above entitled proceedings was a judicial review proceeding

pursuant to leave seeking the quashing by way of certiorari of that order in the District Court on a number of different grounds. This

matter was considered first in the judgment of the High Court and judicial review was refused. One of the appeals is from that refusal.

The first of the above mentioned proceedings is an application brought by way of special summons for an order under section 50 of

the Extradition Act, 1965, as amended, directing the release of the applicant having regard to the provisions of section 50(2)(bbb) of

the 1965 Act, as amended. The High Court refused that order and the other appeal before this court is from that refusal. The basis of

the refusal will be elaborated on further in the course of this judgment.

In the ordinary way it would be logical for this court to hear and determine the appeal arising out of the judicial review proceedings in

advance of determining the appeal arising from the section 50 proceedings. For reasons which will emerge, however, that course has

not been adopted and the court has so far only heard addresses from counsel relating to the section 50 proceedings and indeed only

to a particular aspect of that appeal. It will depend on the view which this court takes on that particular aspect as to whether it will

be necessary for the court to consider the judicial review appeal at all or the other aspects of the appeal in the section 50

proceedings. For my own part, I am of opinion that having regard to the matters which have been argued before us an order directing

the release should be made and therefore (apart from any consideration of costs) it would seem unnecessary for this court to

consider the remaining questions arising in either of the appeals.

Nevertheless in order to give context to the judgment, I will briefly outline what each proceeding was about.

The Judicial Review Proceeding

In the District Court the State relied on an affidavit of a Detective Constable Edwards exhibiting the warrant and upon an affidavit of

a Sergeant Johnson as to facts. In advance of the hearing the applicant’s solicitors had been informed that the State would not be

relying upon the affidavit of Detective Constable Edwards. However, it emerged that there was confusion here. It had apparently

been planned that there be an affidavit of facts by Detective Constable Edwards as well as formal proof of the warrant and the facts

set out in that affidavit were identical to the facts ultimately set out in Sergeant Johnson’s affidavit. It had been wrongly assumed

that the applicant had been served with this affidavit of facts by Detective Constable Edwards. The notification of intention to

withdraw that affidavit was intended as a notification to withdraw the affidavit of facts and not the affidavit proving the warrant.

The first ground for judicial review was that the learned President of the District Court ought to have considered the formal affidavit

of Detective Constable Edwards which was before him as having been withdrawn and that therefore there was no formal proof of the

warrant.

Notwithstanding that the only affidavit which was before the District Court sworn by Detective Constable Edwards was the formal

affidavit proving the warrant, the applicant sought leave to cross-examine the Detective Constable who was not present in court.

That application was refused because of the nature of the proof. The background to the request was partly based on evidence that

Detective Constable Edwards had given on an earlier bail application.

The third ground of judicial review was that the learned President of the District Court had acted contrary to natural and

constitutional justice in failing to grant the applicant an adjournment for the purposes of obtaining a transcript of a trial of one Joseph

Sherry related to the events giving rise to this prosecution. That was a case in which Mr. Sherry had been acquitted of the same

offence for which the applicant’s extradition was being sought. The President had refused the adjournment partly on the basis that

the applicant had had time to obtain the transcript and partly on the basis that he was not concerned with the merits of the case at

that stage and that that was a matter for the trial. In the written submissions of the applicant before this court it is suggested that

the transcript was relevant to the issue of correspondence.

I do not propose to express any view in relation to any of these grounds as the judicial review appeal has not been argued before this

court.

The Section 50 Proceedings

As has been mentioned, the section 50 proceedings are grounded exclusively on paragraph (bbb) in sub-section (2) of section 50 of

the Extradition Act, 1965, as amended. The said subsection (2) provides that a direction for release under the section may be given

by the High Court where the court is of opinion that any one of a number of circumstances set out in the Act arise. One of those is

set out in the said paragraph (bbb) and reads as follows:

“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…”.

It is obvious from the wording of that paragraph and without any need to have recourse to authority that before a court can direct

release it must engage in a threefold exercise which can be summarised as follows:

1. It must consider whether there has been a “lapse of time” of the kind envisaged by the paragraph and in this connection

having regard to the later words “and other exceptional circumstances” the “lapse of time” itself must be “exceptional”.

2. In addition to considering whether there has been the necessary “lapse of time” the court must consider whether there were

also “other exceptional circumstances”.

3. If the court has come to the conclusion that the “lapse of time” within the meaning of the paragraph has occurred and that

there were “other exceptional circumstances” the court must consider whether by reason of both the lapse of time and the

exceptional circumstances it would be unjust, oppressive or invidious to deliver the applicant up under section 47 and in

carrying out this exercise the court should have “regard to all the circumstances”. The expression “all the circumstances” may

include matters other than the “exceptional circumstances” such as for instance the family situation of the applicant.

This view of the statutory provision accords with the judgments delivered in this court in Kwok Ming Wan v. Conroy [1998] 3 I.R. 527,

Fusco v. O’Dea (No. 2) [1998] 3 I.R. 470, M.B. v. Conroy [2001] 2 ILRM 311 and McNally v. O’Toole (unreported 9th May 2002).

In this particular case the learned High Court judge held that there had been a significant passage of time “as indicated by counsel in

opening this case”. He went on to hold that some of the lapse of time was clearly explained whereas other periods were not. The

alleged offence was committed on the 29th of June, 1992. An arrest was made of another man in connection with the offence shortly

after that time but no attempt was made to arrest the applicant. There was evidence before the learned High Court judge which he

accepted that a deliberate decision was taken for police reasons in conjunction with the English Crown Prosecution Office not to

arrest the applicant at the outset when he was available to be arrested. This was said to be for the purpose of protecting sources of

information and methods of obtaining information etc. A warrant was issued for the arrest of the applicant on the 21st of October,

1992, a fact which in the view of the trial judge indicated that there was an intention at that early stage to have the applicant

arrested and tried for the offences for which his extradition was now sought. That particular warrant had alleged a conspiracy. It was

never utilised because it had been intended to bring extradition proceedings in France with a view to bringing back for trial a third man

alleged to be involved in the offences, an attempt which would have been futile because there was no conspiracy offence under

French law. Since it had been contemplated that both the applicant and the man in France would be tried at the same time a second

warrant was issued on the 5th of August, 1993 which alleged an offence of possession of heroin with intent to supply. For technical

reasons, that warrant was not used against the applicant either and a further warrant was issued on the 14th of January, 1995 in

similar terms but with one addition for legal purposes. Only that third warrant was actually backed and used for the arrest of the

applicant on the 12th of May, 1995, some two years ten and a half months after the date of the alleged offence.

The learned High Court judge found on the evidence before him that the applicant had left the U.K. believing he had avoided any

suspicion and had “apparently lived openly in this jurisdiction at all relevant times”. The judge went on to find that certain contact

had been maintained with the Garda Síochána in reference to the applicant in July of 1993 and that the formal matter of extradition

did not arise until late in 1994 when contact was made with the office of the Attorney General resulting in a file being opened. The

necessary decision by the Attorney General had to be made and this was done on the 14th of February, 1995. The warrant for the

arrest of the applicant was not executed until the 12th of May, 1995. There were delays caused by domestic criminal charges being

disposed of for which no fault could be attributed to either party. When the extradition proceedings came on in the District Court

there were further delays with adjournments arising largely out of the confusion relating to the affidavit of Detective Constable

Edwards referred to above. After setting out these facts in his judgment the learned trial judge then says the following at p. 59.

“It is clear that time of itself is not sufficient to bring into application the provisions of section 50(2)(bbb) but there must be

other exceptional circumstances such that it would be unjust, oppressive or invidious to deliver the plaintiff up under section

47 of the Act.”

He then immediately proceeds to deal with “the exceptional circumstances alleged”. It is quite clear therefore that he was finding

that the kind of “lapse of time” which triggers consideration of whether there were “other exceptional circumstances” did arise in this

case and indeed he makes that expressly clear later on in the judgment at the bottom of p. 60. He also makes clear that he was

satisfied that there had been “some want of reasonable expedition on the part of the United Kingdom authorities, especially a period

of fourteen months since August of 1993 to November, 1994 which has not been explained”.

Unfortunately, the trial judge is somewhat less clear when he comes to deal with the issue of “other exceptional circumstances”.

First of all the judge says that he is satisfied that the fact that the plaintiff lived openly and left the United Kingdom in circumstances

where no criminality exists or is alleged do not of themselves constitute exceptional circumstances. On the other hand the judge did

consider that “the circumstances whereby the plaintiff was not arrested at the outset nor followed but was allowed to leave the

United Kingdom are certainly unusual circumstances” but he then opines that these have been explained by the United Kingdom

authorities and that he was disposed to accept the explanation. He went on to say that he was satisfied that the circumstances

relating to the existence of domestic charges which accounted for some period of time were not of themselves exceptional. The judge

accepted the applicant’s evidence that he on occasions went to Northern Ireland and was not arrested but he pointed out that there

was no suggestion that he was known to be in Northern Ireland when he was there at any time after the police in Northern Ireland

were alerted to the fact that he was wanted and should be arrested.

The learned trial judge makes minimal reference to a strong sub-plot running through the case and which formed a substantial part of

the cross-examination of the relevant English police officer by counsel for the applicant. This was a suggestion that at all material

times the applicant believed that he was part of a “sting” operation and that on several occasions he sought and took advice from a

named superintendent of the R.U.C. The learned trial judge took the view, as did the President of the District Court, that these were

matters to be raised by way of defence at the trial and were not relevant to the extradition. Towards the end of p. 60 of the

judgment the trial judge says the following:

“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 of time.”

Counsel for the respondent, Mr. Patrick McCarthy S.C., did not seem fully to accept that there was a finding of “other exceptional

circumstances”. He may possibly be right. It is certainly not by any means clear what exactly were the “circumstances” which the

judge considered “unusual and might be described as exceptional”. But given that he went on to consider whether it would be unjust,

oppressive or invidious to deliver up the applicant, I think that the learned High Court judge was holding that some of the surrounding

circumstances were “other exceptional circumstances”. It could be argued that he was taking the view that it was not necessary to

make a definite finding whether any circumstances constituted “other exceptional circumstances” as he would not at any rate

consider it unjust, oppressive or invidious to deliver up the applicant. But that would be an incorrect approach because under the Act

there quite clearly has to be a finding both of “lapse of time” and of “other exceptional circumstances” before the question of

whether it would be unjust, oppressive or invidious to deliver up the applicant can arise. The consideration of that last factor cannot

be properly entered into without regard to specifically found “exceptional circumstances”. I would take the view that on a proper

construction of the statutory provision a combination of circumstances can constitute “other exceptional circumstances” where if

only one such circumstance existed it would not be considered “exceptional”. It may well be that the learned trial judge considered

that the circumstances as a whole were unusual and as he put it himself “might be described as exceptional”. At any rate I am of the

view that on balance there has been a finding by the learned High Court judge of “other exceptional circumstances”.

There is a necessary overlap between the “other exceptional circumstances” and “all the circumstances” which have to be taken

into account in considering whether it be unjust, oppressive or invidious to deliver up under section 47. In so far as the learned High

Court judge made a specific finding that certain circumstances alleged to be “exceptional” by the applicant were not in fact

“exceptional”, it is logical that there be an appeal against that finding because the correctness or otherwise of that finding has a

knock-on effect on the issue of whether it is unjust, oppressive or invidious to make a delivery under section 47. It is perfectly logical

therefore that the applicant should include in his notice of appeal grounds 1, 2 and 3 which read as follows:

“1. That the learned trial judge erred in law and in fact in holding that the circumstances in which the plaintiff/appellant was

living openly in this jurisdiction were not exceptional grounds within the meaning of section 50(2)(bbb).

2. That the learned trial judge erred in law and in fact in failing to hold that the want of reasonable expedition by the United

Kingdom authority and the failure of the United Kingdom authorities to arrest the plaintiff/appellant were exceptional grounds

within the meaning of section 50(2)(bbb).

3. That the learned trial judge erred in law and in fact in failing to hold that the particular circumstances in this case such as:

the circumstance in which the plaintiff/appellant was involved in this case, his involvement with the RUC during the course of

the alleged criminality, the failure of the United Kingdom authorities to arrest the plaintiff/appellant, the failure of the United

Kingdom authorities to inform the RUC that they were looking for the plaintiff/appellant, the fact that the plaintiff/appellant on

a number of occasions returned to the United Kingdom in the intervening time, the fact that the plaintiff/appellant lived openly

and publicly in this jurisdiction and the want of reasonable expedition by the United Kingdom authorities in seeking his

extradition either individually or in combination were exceptional grounds within the meaning of section 50(2)(bbb).”

For the purposes of an application under section 50 “exceptional circumstances” have a double relevance. In the first instance their

existence must be proved in order to trigger consideration by the court as to whether “in all the circumstances” it would be “unjust,

oppressive or invidious” to deliver up the applicant under section 47. Once that proof has been established however the same

“exceptional circumstances” together with other circumstances will be taken into account by the court in the balancing exercise of

deciding whether it would be unjust, oppressive or invidious to deliver up the applicant. If there was an unappealed finding by the

High Court judge that circumstances which the applicant considered important (to use a neutral word) were not “exceptional”

contrary to the submissions of the applicant that may necessarily have the effect of downgrading their significance when considering

“all the circumstances”.

Moving back to the facts of this particular case and in particular new facts which have emerged by way of additional evidence in this

court it is probably fair to say that the foregoing analysis may be academic. Even if (contrary to my view) the learned High Court

judge has not made a finding of “exceptional circumstances” the additional evidence now before the court which is evidence of facts

coming into existence since the hearing of the High Court constitutes “exceptional circumstances”. If, on the other hand, the High

Court has already held that there were exceptional circumstances to some degree at least as I believe it did then the additional

evidence is of such a nature that in my view, it would clearly be “oppressive” to deliver up the applicant.

First of all there is an affidavit of Samantha Downes, wife of the applicant/appellant, sworn on the 7th of March, 2003. In that

affidavit she swore that on Sunday the 23rd of February, 2003 the applicant/appellant suffered a major stroke. The appellant was

then taken to Cavan general hospital where he remained for some time. The deponent had great difficulty in communicating with him

and she stated that her husband could not speak clearly at all and that in fact he found it very difficult to speak sentences. He

appeared to be very confused and he was paralysed on his right hand side. She exhibited a medical report of Dr. James Hayes,

consultant physician, dated 3rd of March, 2003 in which he stated that the appellant had “an acute left hemi paresis with sensory

motor dysphasia” for which he was currently undergoing investigation and treatment. The doctor stated that the appellant would be

unavailable to attend court appearances of any sort for the present and probably for the foreseeable future and that his condition

would require a considerable length of rehabilitation before there could be any certainty as to long term prognosis. Strictly speaking

that affidavit was sworn for the purposes of applying for an adjournment of this appeal which had been originally listed for the 10th of

March, 2003 though the substantive remedy of release was sought in the alternative in the affidavit. The appeal was duly adjourned

and new affidavits were sworn in October, 2003. By an affidavit sworn on the 1st of October, 2003 Mr. Robert Eagar, solicitor with

Garrett Sheehan and Company, solicitors for the appellant, swore an affidavit for the purposes of the appeal itself and exhibited a

number of medical reports, the principal one relied on being a report by Dr. David Moorhouse, consultant neurologist. Dr. Moorhouse

when reporting had before him medical reports prepared by Dr. Hayes, consultant physician, dated 8th of July, 2003 and 16th of July,

2003 and a medical report prepared by Dr. Dara Hume, dated 15th of July, 2003 all of which are exhibited. The report of Dr.

Moorhouse was dated 21st of August, 2003. I think it appropriate to quote in full the section of Dr. Moorhouse’s report headed

“Conclusion”. It reads as follows:

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

It is now six 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 would fully understand the criminal proceedings if these were to be commenced.

It is only six months since the plaintiff suffered the stroke involving his left cerebral hemisphere and one can allow up to

approximately two years following various types of brain injury including stroke before one can state that the patient’s

symptoms are permanent and stationary.

In view of this, this patient has approximately eighteen months more to recover from his stroke. At that stage he should be

reviewed again and a report issued at that time.”

It is important at this stage to mention that counsel for the Attorney General has adopted a neutral stance in relation to the

additional evidence. He has made no submissions to this court one way or the other as to how that evidence should affect the

decision of the court. This is of some importance because on the basis of Dr. Moorhouse’s report there is at least a theoretical

possibility that the appellant could make a complete recovery within the next thirteen months, that is to say, eighteen months from

the date of Dr. Moorhouse’s report. It might conceivably have been argued on behalf of the State authorities in those circumstances

that this court should adjourn the appeal for a lengthy period. Very properly in my view no such application has been made to the

court. In the first place no one is suggesting that such a recovery or even a near recovery is a probable outcome. In that sense it is

quite different from some major breakage of bones where nevertheless there might be an optimistic prognosis. Secondly, as far as

possible an extradition proceeding should come on before a court as quickly as possible and should be decided by a court as quickly

as possible. Thirdly, it would necessarily be a matter of concern to the court that the very existence of these extradition proceedings

hanging over the appellant could impede his recovery. It is not necessary for me to outline in this judgment the contents of the

reports of Dr. Hayes and Dr. Hume as their views are effectively taken account of in the conclusions of Dr. Moorhouse.

Finally, there is a second affidavit of the appellant’s wife, Samantha Downes, sworn the 9th of October, 2003. In this affidavit the

deponent sets out some of the ways in which the appellant’s stroke has affected his day to day living. She says that his ability to

walk has been severely affected. He can move from place to place in the house with the aid of a crutch but he cannot stay on his

feet. His primary means of transport is by way of wheelchair. He has a motorised wheelchair which he uses to get around the grounds

of the house and from house to the car. For visits to a rehabilitation facility and to other houses he uses a lighter wheelchair. His

right arm is badly affected by the stroke and he has to wear a splint for a number of hours in the day. He has a painful ulcer in his

right leg which requires dressing and he is on very substantial medication. He has problems with dressing. He also has problems with

concentration even to the extent of not being able to watch a full film on television. He can only engage in simple reading and he

cannot remember frequently what he has just read. It takes him a long time to reply to emails. The appellant’s personality has

substantially changed since the stroke and he has a tendency to break down crying at unpredictable moments.

I am satisfied that the new evidence constitutes “exceptional circumstances” if such a finding is necessary but I am at any rate

satisfied that having regard to that evidence it would clearly be “oppressive in all the circumstances” to deliver up the applicant

under section 47.

I would, therefore, allow the appeal and direct the release of the applicant pursuant to section 50 of the 1965 Act.