The Gazette 1989

MARCH 1989

GAZETTE

An Outline of Extradition Law Part I

Ireland cases is a matter of politics, not law. Extradition to the United Kingdom is governed by Part III of the 1965 Extradition Act, as amended. It is brought into operation by a Garda Com- missioner 1 endorsing a UK warrant for execution here (the "backing of warrants" system). If the warrant is for arrest following a conviction or following committal pro- ceedings, the Attorney-General has no function. 2 But if it is otherwise, the Attorney-General must be satisfied that the UK authorities intend to prosecute or continue the prosecution of the alleged offence and that their intention is "founded on the existence of sufficient evidence". 3 If he is not so satisfied then he must direct that the warrant should not be endorsed. A feature of extradition law in the UK is that before extradition is granted, a requesting state is usually required to make out a prima facie case of guilt. Extradition arrange- ments between Ireland and the UK were made in 1965, 5 following the collapse of the previous arrange- ment, 6 with the passing of the Extradition Act 1965 (hereinafter referred to as "the Act"). At that time, Ireland intended to ratify the 1957 European Extradition Con- vention 7 which does not have the requirement of a prima facie case. 8 If such a requirement had been imposed on the UK it would have been an anomalous feature of the

"Where the liberty of any person, be he citizen of this State or otherwise, is concerned, where valid arrest is fundamental to the validity of the proceedings, where sweeping powers are given to the Police Forces of two adjoining jurisdictions, / am not prepared to overlook the careless approach and lack of attention to detail • • • "per McCarthy J. in McMahon -v- Leahy [1984] IR 525; [1985] ILRM 422. Introduction

political exemption, concludes the article. 8 UNI TED K I NGDOM (PART II) Persons may be tried in the State for a wide range of terrorist-type offences committed in Northern Ireland, under the Criminal Law (Jurisdiction) Act 1976. This act does not extend to the remainder of the UK. The act therefore treats Northern Ireland and the remainder of the United Kingdom separately.

Extradition 1 is not a matter of discretion. The State has entered ,n to a series of international arrangements and treaties, 2 which obliges it, on request, to hand over fugitives within its borders. Under the Extradition Acts, 3 the State has no option between extradition to a requesting State and trial and Punishment for an extra terratorial offence 4 within the jurisdiction. Extradition proceedings concern themselves not with the merits of returning a person to the place where he allegedly committed an offence, 5 nor with the strength of the case against him, 6 but simply with whether or not the proofs laid down in the Act have been complied with. Because of the difficulties of proving documents and ensuring the attendance of foreign witnesses, considerable assistance is given to the State by presuming documents to be valid in certain circumstances and allowing their contents to be an exception to the hearsay rule. 7 The task of the State is to ensure their documents comply with the Act and prove adequately what it requires. The defence lawyer is concerned to spot and exploit gaps in the State's proofs or challenge the documents as having been invalidly issued in a foreign jurisdiction or as being bad °n their face. The writer's task is to concisely set out and consider those proofs and in so doing expose areas of possible weakness for future consideration. Extradition is most often requested to the United Kingdom (governed by Part III of the Act). It >s considered in most dertail and is followed by a discussion of our arrangements with other countries (governed by Part II of the Act). A considertaion of some of the more important defences, including the

by Peter Charleton, B.A.(Mod), Barrister-at-Law

In some circumstances, the State has extra-terratorial jurisdiction for crimes committed outside Ireland (see footnote 4 in the previous section). Section 4 of the Criminal Law (Jurisdiction) Act, in addition gave jurisdiction to try any Irish citizen, who, outside the State, causes an explosion, possesses an explosive or conspires to cause an explosion. This section runs against the general scheme of the act, which is to treat Ireland and Northern Ireland as one juristic entity for the purpose of terrorist crime and extends that principle, in the case of explosives, to the rest of the United Kingdom and the world. At the time of writing it is proposed to try Fr. Patrick Ryan under this section for conspiring to cause explosions in England. Clearly persons may also be extradited to Northern Ireland and the UK. There is no option given in any of the enactments between trial in the State and extradition. As to whether trial or extradition is requested in respect of Northern

J f r / U p

Peter Charleton.

117