Supreme Court dismisses extradition appeal where remand credit uncertainty makes potential sentence oppressive.

THE SUPREME COURT

Murray C.J.

Geoghegan J.

Kearns J.

[307/2005]

IN THE MATTER OF SECTION 30 OF THE EXTRADITION

ACT, 1965 (AS AMENDED)

BETWEEN

WILLIAM O’KEEFFE

APPLICANT/RESPONDENT

AND

PATRICK O’TOOLE ASSISTANT COMMISSIONER OF AN GARDA SIOCHANA

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice Kearns delivered the 29th day of March, 2007

This is an appeal from a refusal of the High Court (Peart J.) to order the extradition of the respondent to England pursuant to s. 50 of

the Extradition Act, 1965 (as amended). Judgment was delivered on 12th July, 2005, and on foot of the order of the court the release

of the respondent was directed pursuant to s. 50 (2) (bbb) of the Act. In the events which have transpired, the appeal to this Court

has essentially reduced to a single ground which concerns the extent, if any, to which time spent in custody on remand in connection

with the extradition proceedings may be taken into account by a court in this jurisdiction when considering a request from a

requesting authority in another jurisdiction, in this case the United Kingdom.

On 11th July, 1995, at Warley Magistrates Court in England, the respondent pleaded guilty to a charge of burglary contrary to s. 9 (1)

(b) of the Theft Act, 1968. He was released on bail to appear before the same court for sentence on the 2nd August, 1995, but failed

to appear for sentence and a bench warrant was issued for his arrest.

It is of some importance to note at this point, as was confirmed to the Court on the opening of the appeal, that as the offence was

being dealt with in a summary manner, the maximum sentence which could have been imposed by the Magistrate’s Court was six

months.

It had previously been alleged by the United Kingdom authorities that the respondent had committed, on certain other dates in June,

1996, three other offences. Extradition was initially sought in respect of these alleged offences also, but the applications have now

been discontinued.

The respondent came to Ireland in June or July, 1996 and came to the attention of the gardaí when he was remanded in custody on a

robbery charge in this jurisdiction on 8th July, 1996. In March, 1997 he was sentenced to six years imprisonment by the Dublin Circuit

Criminal Court, which said sentence was back-dated to 8th July, 1996. A sentence review date was fixed for July, 1998.

The authorities in England became aware of the respondent’s imprisonment in Ireland and of his earliest possible release date.

Towards the end of June, which was certainly an appropriate moment in time for doing so, extradition warrants were issued by a

Justice for the county of West Midlands in England and the same were endorsed by Assistant Garda Commissioner O’Toole on 13th

July, 1998. They were executed on 16th July, 1998.

After his arrest on the extradition warrants, the respondent was remanded in custody from time to time by the District Court pending

a hearing date in December of that year.

However, on the 25th November, 1998, the respondent was discharged as a particular District Judge formed the view that there was

then inadequate provision for payment by the State for legal representation for persons facing extradition proceedings. At the time of

his discharge, the respondent had spent four months and 20 days in remand custody, all of which was exclusively attributable to the

extradition proceedings. In February, 1999 the respondent began serving a sentence for an unrelated offence for which he was

ultimately released from custody on the 8th September, 1999, on the termination of his sentence.

In April, 1999 the Attorney General was granted leave to apply to the High Court for an order of certiorari in respect of the decision

of the learned District Judge discharging the respondent from the extradition proceedings. An order of certiorari was granted by the

High Court in October, 2000. Thereafter, various attempts were made between 2001 and 2004 to have the proceedings re-entered

before the District Judge, though without success. It ultimately became necessary to issue further High Court proceedings for

declaratory relief so that the reservations of the District Judge could be addressed. A High Court order was granted on 28th July,

2004, and the matter was promptly re-entered before the District Court.

In the interim, the respondent had spent a number of periods in custody. On 27th November, 2000, the balance of his six year

sentence for robbery was reactivated for breach of the condition pursuant to which part of his sentence had been suspended. In

fact, the respondent was in custody on other matters at the time of this reactivation. He subsequently received other sentences and

was released from custody on the 10th August, 2004.

On the 10th September, 2004, the respondent appeared voluntarily before the District Court in Tallaght and the matter of his

extradition was re-entered. He was initially remanded in custody, but was admitted to bail by the High Court on the 22nd September,

2004.

On the 4th October, 2004, the respondent appeared on bail before the District Court sitting in Court 50 in the Richmond Hospital,

North Brunswick Street, Dublin 7. Evidence and submissions were heard and the learned District Judge indicated that it was his

intention to order the extradition of the respondent pursuant to s. 47 of the Extradition Act, 1965. Counsel for the respondent

requested that the court postpone its order so that the present proceedings could be initiated and this application was acceded to.

The respondent was remanded on continuing bail until the 7th October, 2004.

On 7th October, 2004, the respondent instituted s. 50 proceedings in the Master’s Court by way of special summons.

The application of the respondent for release pursuant to s. 50 (2) (bbb) of the Extradition Act was heard in the High Court on the

24th June, 2005. Peart J. delivered his judgment on 12th July, 2005, and ordered that the respondent be released pursuant to s. 50 of

the Extradition Act.

The Judgment

At the outset of his judgment, Peart J. noted that s. 50 (2) (bbb) of the Extradition Act, 1965 provided as follows:-

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

(bbb) by reason of 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 section 47, or

(c) the offence specified in the Warrant does not correspond with any offence under the law of the State which is

an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six

months."

Having set out the background facts in careful detail, the learned trial judge reviewed various legal authorities before concluding that

there had been“a lapse of time worthy of consideration as to whether it is itself exceptional in character. Ten years’ delay in the

context of extradition proceedings is a long length of time. It is intended, on the contrary, to be a speedy procedure. No doubt where

the applicant has caused or even significantly contributed to the lapse of time, he cannot rely on that lapse of time, and thereafter it

is not necessary to go on and consider anything else put forward as ‘other exceptional circumstances’”.

The learned trial judge concluded that the only delay to which the respondent had contributed was the period from July, 1995 to July,

1998. He concluded that in relation to the six years from that time that, although the respondent had spent a good deal of that time

in prison due to his own misconduct, this had not caused or contributed to the delay. He referred to what he described as the “most

extraordinary turn of events in the District Court on the 25th November, 1998” when the applicant was released and the delay

encountered thereafter in trying to deal with those events. He found that the respondent had not contributed in any way to the

delay thereby arising and concluded that the lapse of time was to be regarded, in all the circumstances, as exceptional.

He then proceeded to consider “other exceptional circumstances”, and while he had regard to the respondent’s history of re-offending

post 1998, and to his history of drug treatment since December, 2004 and also to the fact that certain files had been lost or mislaid

by the United Kingdom police, the learned trial judge also found that the uncertainty attaching to his future as a result of what had

happened in the Judicial Review proceedings was a matter which was outside the control of the respondent. In the view of the

learned trial judge, these matters were sufficient to constitute “other exceptional circumstances” for the purpose of the section.

He then proceeded to consider, in accordance with the requirements of the section, whether “it would, having regard to all the

circumstances be unjust, oppressive or invidious” to make an order for the rendition of the respondent.

In this context he noted:-

“If the applicant is returned to be sentenced, there does not appear to be any guarantee that he would be given credit

for any time served in this jurisdiction relating to processing of the application for his rendition.”

He did however note that s. 67 of the Criminal Justice Act, 1967 in England provided:-

“(1) The length of any sentence of imprisonment imposed on an offender by a court shall be reduced by any relevant

period …

(1A) In subsection (1) above “relevant period” means –

(a) any period during which the offender was in police detention in connection with the offence for which sentence

was passed; or

(b) any period during which he was in custody –

(i) by reason only of having been committed to custody by an order of a court made in connection with

any proceedings relating to that sentence or the offence for which it was passed or any proceedings

from which those proceedings arose; or

(ii) by reason of his having been so committed and having been concurrently detained otherwise than

by order of a court.”

While this section has since been repealed it was operative at the relevant time.

The learned trial judge observed that there could be no guarantee that the first-quoted and then operative section would be

interpreted so as to allow reduction of sentence by the period of time spent in custody in this jurisdiction pursuant to an order of an

Irish court, as opposed to an order made by an English court, despite the fact that the applicant had spent almost five months in

custody exclusively in connection with the extradition proceedings.

It appears that the learned trial judge believed, contrary to what this Court was informed at the outset of the appeal, that the

respondent might, if extradited to England, be liable to a maximum sentence of ten years imprisonment under s. 9 of the Theft Act,

1968. While he took the view that the applicant’s offence would be at the lower end of the range of sentencing, he felt he could not

assume that an English court would not impose a sentence of perhaps 18 months or two years. He continued:-

“That would mean that even if he was given credit for almost five months spent in prison here during the extradition

process, there would, even allowing for normal remission, be some time still to be served. Therefore it would be stretching

things in my view to regard it as oppressive in the sense of being ‘harsh or cruel’ to return him for sentencing.”

The learned trial judge’s finding on this point is clearly based on the assumption that the matter would be dealt with in the County

Court in circumstances where, even taking the time spent in remand custody into account, a substantial sentence would still remain

to be served.

Nevertheless, the learned trial judge noted that the respondent had undergone drug treatment with great success and felt it would be

harsh and cruel, and therefore oppressive to him, to deny him the opportunity of making further progress along the path to recovery

by interrupting his treatment by returning him to England. He also felt it would be invidious to do so in view of the nature of the delay

caused in this case, part of which was taken up with the Judicial Review process about the application of the Attorney General’s

scheme in the District Court which the learned trial judge felt was “something which he ought not to have had to deal with”. He thus

felt it would also be oppressive in the sense of being harsh and cruel to extradite him on this basis.

While multiple grounds of appeal are set out in the Notice of Appeal dated 3rd August, 2005, counsel on both sides are agreed that

the only issue which this Court need now determine is whether or not it would be unjust, oppressive or invidious to deliver the

respondent up under s. 47 having regard to the fact that the maximum sentence which could be imposed by the Magistrates Court in

England would be six months, in circumstances where the respondent has already served just under five months in remand custody

between July, 1998 and November, 1998 in this jurisdiction.

In the course of the appeal, it became apparent that no undertakings or assurances of any sort had been sought from or given by the

requesting authorities in the United Kingdom as to whether credit would normally be given there for time spent in custody in this

jurisdiction while the extradition process was taking place. Nor was there any information available to the court as to whether or not

the respondent would be entitled to any remission on a six month sentence imposed in the United Kingdom.

This Court is therefore required to resolve this case in something of an information vacuum. However, Mr. Paul O’Higgins, S. C. for the

respondent argues that whether credit is given or not for the time spent in remand custody, the ultimate outcome should be the

same. If no credit is given, then the respondent, if rendered, would serve a sentence of nearly 11 months for an offence which carries

a maximum penalty of six months when dealt with by the Magistrate’s court. Alternatively, if credit is given, it would be what he

described as “an exercise in futility” to extradite the respondent after such a lengthy period of delay to serve a maximum possible

sentence of one month. For his part Mr. Patrick McCarthy, S. C. for the applicant, argued that due respect for the legal institutions of

the requesting authority required that rendition be ordered, particularly where the respondent had pleaded guilty before the particular

court in England and the matter of sentence was thus exclusively a matter for that court, including the consideration of any question

of reducing that sentence or even suspending it because of the plea of guilty.

Section 47 (2) of the Extradition Act, 1965 provides:-

“An order shall not be made under subsection (1) if it appears to the Court that the offence specified in the warrant does

not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary

conviction by imprisonment for a maximum period of at least six months.”

Without in any way saying that the offence for which the extradition of the respondent is sought is a minor offence, it is now clear

that no sentence greater than six months can be imposed on this respondent if rendered to the United Kingdom authorities. It may

well be less. I think it is fair to construe the principle underpinning the above quoted subsection as one whereby minor offences, or

offences which carry small penalties, should not generally be the subject matter of extradition. Conversely, the more serious the

offence and the greater the possible penalty, the greater the onus on the respondent to establish that it would be unjust, oppressive

or invidious to direct his extradition. In Fusco v. O’Dea (No. 2) [1998] 3 IR 470 this Court held that the interests of justice normally

require that persons accused of serious crimes should be brought to trial and if convicted, should be obliged to serve sentences

lawfully imposed in accordance with law. Accordingly, a person such as the plaintiff, who in that case had been found guilty of

murder, attempted murder and possession of firearms faced what Hamilton C.J. described as “a heavy onus” in establishing that it

would be unjust, oppressive or invidious to deliver him up pursuant to the provisions of the Act of 1965, for the purpose of serving the

sentences lawfully imposed in respect of such offences.

While it is not necessary to make any express finding as to whether the court should specifically take into account the gravity of a

particular offence when considering a request for extradition (assuming it meets the criteria under s. 47), the foregoing does appear

to me to be a backdrop which is of some relevance on the facts of this case.

As already noted, however, the essential question in determining whether in this case it would be oppressive to extradite the

respondent is to consider the significance of the period of almost five months spent by him in remand custody in this jurisdiction

between July, 1998 and November, 1998. There can be no doubt but that periods of time spent in custody while awaiting extradition

are factors to which regard will be had by courts in this jurisdiction, as indeed was noted by Geoghegan J. in the course of his

judgment in the High Court in Fusco v. O’Dea.

In that case the plaintiff had been tried for certain offences in Northern Ireland and sentenced to lengthy periods of imprisonment.

Whilst in custody awaiting judgment, he escaped from prison in Belfast, but was later arrested in the State. He was subsequently

tried before the Special Criminal Court pursuant to the provisions of the Criminal Law (Jurisdiction) Act, 1976 and convicted of the

offences relating to the escape and sentenced to terms of imprisonment. The question then arose as to whether or not the plaintiff

would get credit for the period of time spent in Portlaoise prison in relation to the Crumlin Road escapes. In the course of his judgment

at p. 481, Geoghegan J. set out his views, which were subsequently fully endorsed in the judgment of Hamilton C.J. in this Court, in

the following manner:-

“There is, however, another matter to which I wish to refer. In applying para. (bbb), I have not found it necessary to

consider as a relevant factor a possible denial by the Northern Ireland authorities of credit to the plaintiff for the period of

time spent in Portlaoise prison relating to the Crumlin Road escapes. There were ample grounds for applying para. (bbb)

independently of that ground. But I think I should make it clear in case it became relevant on appeal that if I did have to

consider that factor, it would not have been held by me to be a ground for applying para. (bbb) because I would have

been prepared to accept the affidavit of Peter Neville-Bell of the Northern Ireland Office as sufficient evidence that full

credit would be given for the Portlaoise sentence relating to the Belfast prison escape offences. The question of whether

credit would be given or not arose at the hearing and I considered it to be of importance that there be some definite

evidence in relation to it. It was agreed that such evidence would be obtained and I delayed preparing a judgment. Some

considerable time after the hearing, this affidavit of Peter Neville-Bell was put in evidence. At that stage counsel for the

plaintiff requested liberty to serve notice of intention to cross-examine, which I refused. I am aware that the propriety of

exacting undertakings from a foreign government has been queried by individual members of the Supreme Court, notably

by Ó Dálaigh C.J. and more recently by McCarthy J. but I do not regard the affidavit of Mr Neville-Bell as constituting an

undertaking but rather as providing information as to the intentions of the Secretary of State for Northern Ireland. Having

regard to the long history of co-operation in countering terrorism between the authorities in both jurisdictions, I consider

that the Court should assume that the intention of the Secretary of State, as conveyed, would in fact be carried out

and, in my view, that would be sufficient to oust the application of para. (bbb) if based solely on any alleged possibility of

lack of credit for service in Portlaoise prison.”

A similar view was taken in the Supreme Court by Denham J. when she stated at p. 522:-

“The Court is entitled to rely on the evidence in the affidavit, which is relevant to the circumstances. The undesirability of

accepting undertakings was set out by Ó Dálaigh C.J. in Bourke v Attorney General [1972] I.R. 36 at p. 64. However, in

Sloan v Culligan [1992] 1 I.R. 223 at p. 267 to 268 evidence was accepted of credit to be given in Northern Ireland for

time spent on remand in Northern Ireland and time spent in prison serving the sentences imposed by the Special Criminal

Court on the 25th February, 1982. As a consequence there was no remaining sentence to serve in Northern Ireland and

an order for delivery was not made as to do so would be a nullity, a futile order. Similar evidence has been deemed

acceptable by the courts in other areas of the law: see C.K. v C.K. [1993] I.L.R.M. 534.

The evidence of the credit to be afforded in this case is a relevant factor in considering the circumstances so as to

determine whether "exceptional circumstances" exist, whether it would be "unjust", "oppressive" or "invidious" for the

plaintiff to be returned to Northern Ireland.”

In Sloan v Culligan [1992] 1 IR 223 the plaintiff had escaped from Crumlin Road prison in Belfast two days prior to his conviction for

(inter alia) unlawful imprisonment, but within six months he was apprehended in the State where he was prosecuted and convicted for

escaping from lawful custody in Northern Ireland under s. 3 of the Criminal Law (Jurisdiction) Act, 1976. Upon the approach of the

completion of his prison sentence in Portlaoise prison, a warrant for his arrest in respect of the conviction and sentence imposed in

Northern Ireland was issued. In this context the requesting authorities gave undertakings that credit would be allowed for the

imprisonment terms served in Portlaoise by deduction from the imprisonment terms imposed in Northern Ireland. The Supreme Court

held, having regard to the unequivocal statement made on the part of the requesting authorities, that the plaintiff would only be

compelled to serve the prison sentences imposed for the offence upon which his extradition was ordered, and that account would be

taken both of the time spent on remand in Northern Ireland and of the eight or so years spent in Portlaoise for escaping from prison in

Northern Ireland, and that in respect of the only offence for which he might now be extradited (unlawful imprisonment) the sentence

imposed had been five years, and thus there were no further years to serve, the court would not order his delivery to Northern

Ireland since such would be a nullity or a futile order.

In the course of his judgment in this court, Finlay C.J. stated (at p. 266):-

“No submissions were made to this Court as to the validity of the undertaking referred to … It is not clear from the papers

before us by whom or upon whose authority any such undertaking was given, and no written document concerning it

appears to exist. Counsel informed us that upon recollection it was simply a statement made by counsel on behalf of the

defendants in these proceedings. I, therefore, express no view as to whether in proceedings under the Extradition Act,

1965, or in judicial proceedings concerning an order for delivery of a person out of the State, pursuant to the provisions

of that Act, an undertaking of this description can validly be relied upon by the courts so as adversely affect to the rights

of any person sought to be delivered out of the State. Having regard to my conclusions on the issues arising in this

appeal, the relevance of the undertaking is not that it can be operated to the detriment of this particular plaintiff but

rather that it is relevant to his advantage.”

He then referred to a letter written subsequent to the High Court hearing in which the Chief State Solicitor wrote to Mr Sloan’s

solicitor to say that the Crown Solicitor for Northern Ireland had confirmed that “account would be taken both of the time your client

spent on remand in Northern Ireland and of the time he spent in prison serving the sentences imposed by the Special Criminal Court”.

The Chief Justice then continued:-

“Having regard to this unequivocal statement of the situation contained in the letter of the Chief State Solicitor, the

position is that if my view of the issue under s. 3 of the Act of 1987 is accepted by the other members of the Court, and

if the only sentence in respect of which this plaintiff could be delivered to Northern Ireland is the sentence of five years

imprisonment in respect of the false imprisonment of James Kennedy, that he has no remaining sentence to serve in

Northern Ireland. On that basis, it seems to me that the Court cannot and should not order his delivery to Northern

Ireland on foot of the conviction for this offence, as to do so would be a nullity or a futile order.”

In the course of his concurring judgment, McCarthy J. felt constrained to make the following comments in relation to undertakings of

this nature:-

“In Bourke v Attorney General [1972] I.R. 36, Ó Dálaigh C.J. said (at p. 64):-

‘A question arose during the hearing of the appeal as to whether it was proper for the Court to accept the

undertaking proffered on behalf of the Attorney General for England and Wales that, if extradition were granted, the

plaintiff would not be prosecuted except for those offences for which his extradition was sought. The bona fides of

the Attorney General for England and Wales are not, for one instant, in doubt; but the desirability of accepting any

such undertakings in extradition matters has been gravely questioned by the highest English court.’

Bourke's case was one of extradition sought for the purpose of a prosecution; here it is for the purpose of enforcing the

balance of the prison sentence. I see no logical reason for any distinction in principle on the question of undertakings in

either case. I echo, as Ó Dálaigh C.J. did, the words of Lord Reid where he said in R v Governor of Brixton Prison, ex p.

Armah [1968] A.C. 192 at p. 235:-

‘But I would add that in general it appears to me to be very undesirable that a foreign government should be

encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he returned to that

country. There may not be the same objection to the foreign government stating that it does not intend to take

certain executive action with regard to the accused person and it might be proper to accept an undertaking on the

lines of s. 3 (2) of the Extradition Act, 1870. But any undertaking or statement of intention is liable to create

misunderstanding and perhaps acute difficulties in the event of a change of circumstances.’

How much added force there is when the application is to extradite a citizen of the requested State. Ó Dálaigh C.J. was

impressed by the views expressed in Armah's case:-

‘They set a sensible headline and one which, in my opinion, we should follow in our courts in Ireland.’”

Given the absence of any undertaking in the instant case, it is perhaps a matter of no great importance that I should reluctantly

disagree with the views expressed by McCarthy J. in Sloan v Culligan. An undertaking not to prosecute one or more of several

offences is to my way of thinking in quite a different category from an undertaking which may really do no more than provide

information as to the practice of the courts in the requesting State as to whether credit is or is not usually given by the courts of

that State in the context of imposing sentence for time spent in remand custody.

I have no doubt but that this issue would have been comprehensively dealt with by Peart J. before delivering judgment, had he been

made aware that the offence to which the respondent had pleaded guilty would be dealt with summarily if and when the respondent

was extradited to the United Kingdom. Instead, the learned trial judge was left to speculate as to how much of a possible ten year

sentence the respondent might serve if extradited. The learned trial judge nonetheless clearly saw the issue of credit given or

withheld as a relevant factor in his deliberations as the passage I have quoted from his judgement clearly demonstrates.

In the circumstances of the present case, the absence of either information or an undertaking leaves this Court in the position that it

has to take into account a variety of possibilities if extradition is ordered. One possibility is that no credit for time spent in remand will

be afforded to the respondent. This would, in effect, mean that the respondent, if rendered, would be obliged to serve, or might be

obliged to serve, a sentence of nearly eleven months. That, in my view, would clearly be oppressive, having regard to the fact that

the maximum sentence on summary conviction is six months and having regard also to the delay which has occurred in this case, a

large part of which was found by the learned High Court judge to be in no way attributable to the respondent.

Alternatively, if credit is given for time spent in remand custody in this jurisdiction, the reality of this case will be that the respondent

would be rendered to serve a maximum possible sentence of one month. I stress the word ‘maximum’ because it may well be that the

respondent would obtain some discount from his sentence for his guilty plea and might also of course obtain some lesser sentence or

even a suspension of same if he has no previous convictions or because of family circumstances or for some other reasons. The third

possibility is to direct the extradition without knowing what may happen in the Magistrates’ Court. I would regard this as oppressive in

the fairly unique circumstances of this case when one takes into account the long delay associated with the judicial review

proceedings.

Accordingly, and taking a view which rests primarily on the historical and practical elements of this case, I feel it would be either

oppressive to the respondent on the one hand or an exercise in futility on the other to direct his extradition.

I would therefore uphold the conclusions of the learned High Court judge, albeit for somewhat different reasons than those offered by

him, and dismiss the appeal.