The Gazette 1984

GAZETTE

JULY / AUGUST 1984

and accordingly the authorities here and elsewhere are relevant. (c) "Offence connected with a political offence" within the meaning of Section 50(2) need not itself be an "offence of a political character" or a "political offence". (d) It is clear that the Courts here and in Britain have been careful to avoid attempting an exhaustive definition of the expression "offence of a political character" in the Act of 1870 and "political offence" in the Act of 1965. (e) The distinction between "purely" political offences which of their very nature are political, e.g., treason, espionage and "relative" political offences, e.g., murder committed in the course of rebellion as enunciated by O'Dalaigh C.J. in Bourke's case page 61 was accepted and the offences in the present case were deemed "relative" political offences and as such the onus is placed on the person named in the warrant to satisfy the Court that the offence is either "a political offence" or "an offence connected with a political offence" ( McGlinchey -v- Wren [1983] ILRM 169 at page 172). (0 The mere fact that offences such as robbery and unlawful possession of firearms were carried out by para- military groups claiming to have political objectives is not sufficient of itself to render them political in character. There must be clear and cogent evidence to support such a conclusion which was absent in this case. The Court in considering whether a particular offence is a political offence must have regard to the circumstances existing at the time that expression falls to be considered. There was nothing in the Affidavits to indicate that the Deponent himself believed that such activities would in fact bring about the claimed political objectives of the organisation of which he was then a member although the motive of a perpetrator of an allegedly political crime must always be of importance in determining whether the crime was in fact political in its nature. (g) The offences which gave rise to the Plaintiff's imprisonment were committed over ten years ago, whilst there was nothing to suggest inaction on the part of the authorities, even if there were, this in itself would not be a ground on which a Court would order release (see O'Hanion -v- Cleming [1982] ILRM 69). Philip James McMahon -v- Governor of Mountjoy prison and David Leary - High Court (per Keane J.), 19 August. 1983 - unreported. Kenneth Morris

Solicitor, on behalf of the D.P.P. applied to have the summons against Collins withdrawn. This application was opposed by Garda O'Brien's Solicitor. The District Justice refused the applica- tion, convicted Collins, and then dismissed the charge against Garda O'Brien. Both Collins and the D.P.P. sought and were granted conditional Orders of Certiorari. The applications to make the conditional Orders absolute were heard together. The main point at issue was whether a District Justice had jurisdiction to hear a Summons brought by and in the name of a Garda at State expense after the D.P.P. had requested that such summons be withdrawn. HELD: that the District Justice had such jurisdiction. The evidence indicated that Garda O'Brien had never been instructed to withdraw the complaint. Furthermore, it appeared that in relation to this summons, the matters of investi- gation, report, decision to prosecute, the making of the complaint to the District Justice, the issuing of and service of the summons and the assembly and presenta- tion of the evidence in the District Court were all matters dealt with by the Garda Siochana in a manner which did not require nor in fact involve any reference to the D. P. P. Finally, the evidence did not show that the D.P.P. had done anything which could be identified as "taking over" the conduct of the case. A Garda is entitled to make and prosecute in his own name as common informer, a complaint alleging a minor offence in the District Court. The mere fact that he is a Garda and thus acting at State expense does not automatically give the D.P.P. the right to intervene at any stage and withdraw the complaint. In making the complaint as common informer, a Garda, like any other common informer, is exercising a common law right of access to the Courts. Such right of access to the Courts ought not to be interfered with in the absence of a clear statutory mandate. The fact that the Garda may be an "official" as opposed to an "unofficial" common informer is irrelevant. The conditional Orders were discharged. The State (Michael Collins) -v- District Justice Ruane and The State (D.P.P.) -v- District Justice Ruane - High Court (Gannon, J.), 8 July. 1983 - unreported. Michael Staines EXTRADITION Warrant — Extradition Act 1965 Section 50 (2) — the mere fact that ofTences such as robbery and unlawful possession of fire arms are carried out by paramilitary groups claiming political objectives does not of itself provide sufficient cogent evidence to constitute those offences political offences or ofTences connected with political ofTences and in the case of offences not of their nature political the onus rests on the person named in the

warrant to satisfy the Court that the ofTence is a political offence or an offence connected with a political offence. On 31 March, 1983, the District Court made an Order under Section 47 of the Extradition Act 1965 for the delivery of the Plaintiff to the custody of the R.U.C. on foot of a warrant issued in Northern Ireland, the offence specified being his escape from custody while awaiting trial on a criminal charge in March 1975. The proceedings, the subject of this decision, commenced by Special Summons in the High Court on 14 April, 1983 and the Plaintiff sought an Order of Habeas Corpus and in the alternative an Order for his release under Section 50 of the 1965 Act. The Plaintiffs Affidavits established he was tried at Belfast City Commission before a Judge and Jury in 1973 on four counts of robbery and unlawful possession of a fire arm and was found guilty and received eight years imp r i s onment and three years imprisonment for contempt of Court. While in Long Kesh Prison he unsuccess- fully attempted to escape and was subsequently charged with attempting to escape from lawful custody. Pursuant to that charge he was brought to the Courthouse at Trevor Hill, Newry, on 10 March, 1975 and while there escaped with 11 others. The warrant referred to in these proceedings related to this escape. Affidavits further stated that the robbery of which he was found guilty was carried out by order of the Irish Republican Army (of which he was then a member) to raise funds for the campaign for the liberation of Northern Ireland from British Rule and in Long Kesh he was confined to the area in the prison set aside for I.R.A. members convicted of political offences and offences connected therewith. His escape from custody at Newry was to enable him to continue the struggle for liberation of the Six Counties. It was submitted that the offence to which the warrant related being the escape from Newry Courthouse was a political offence within the meaning of Section 50(2)(a)(i) of the 1965 Act and that there were substantial reasons for believing that the Plaintiff, if extradited, would be prosecuted for a political offence or an offence connected with a political offence, i.e., attempted escape from lawful custody in Long Kesh prison and detained for political offences, i.e., robbery and unlawful possession of a fire arm and the Defendants submitted that there was not sufficient evidence for the Court to so find. HELD in dismissing the claim: (a) Section 50 is a mandatory provision and if the opinion is formed referred to in sub-section 2 the person named in the warrant must be released (Bourke -v- A.G. [1972] I.R. 36). (b) "Political Offence" in the Section is

to be equated with the expression "Offence of a Political Character" in Section 3 of the Extradition Act 1870

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