The Gazette 1989

GAZETTE

APRIL 1989

legal system requiring evidence of guilt from our nearest neighbour, but not from any other European country. This possible absurdity, 9 coupled with a desire to retain the convenience of a backing of warrants system, albeit securing the prisoner's right of access to the Court to test the validity of his detention, resulted in a system whereby Ireland and the UK had merely to issue and prove a valid warrant 10 to secure a fugitive from the jurisdiction of the other. This was perceived as somewhat unsatisfactory. In 1985, two acquittals resulted in Northern Ireland following extradition from the State. In September, Dominic McGlinchey was acquitted of the murder of a Post Mistress and later the same month Séamus Shannon was acquitted on charges relating to the murder of Sir Norman Strong and his son. This prompted the SDLP to call for the introduction of a prima facie case requirement into Ireland's extradition arrangements with the UK. In 1987, the perceived emasculation of the political offence exemption to extradition 11 by the Extradition (European Convention on the Suppression of Terrorism) Act and the concern evoked by the appeal to the UK Court of Appeal by the "Birmingham Six", prompted further similar calls. The result was the Extradition (Amendment) Act 1987 passing the effective duty of deciding whether there is or is not a case based on "sufficient evidence" to the Attorney-General. Whatever of its expediency in political terms, the Act makes little sense legally. The Attorney-General may consider "such information as he deems appropriate". It is difficult to see how he can consider anything other than evidence admissible in a UK prosecution because any other information could not be introduced at the requested person's trial and so help the prosecution to t establish a "sufficient" case. 12 Such informa- tion will, one presumes, consist of written statements. There is nothing in the Act to stop the Attorney-General interviewing a witness, apart from the principal of constitutional construction which would, one would think, prohibit him from acting as a kind of examining magistrate in the

absence of the parties. A case made on paper is very different to a case presented in Court. No analysis of the "Birmingham Six" case could conclude that there was insufficient evidence to bring the case to trial. Its disturbing features involved objectively strong forensic evidence rendered weak by cross- examination, a case otherwise almost entirely dependent upon confession statements by the accused and an allegation by the defence that these were obtained by oppression and maintained by a conspiracy among the police. No examination of prosecution documents would hint at that situation. The accused's side of the case will not be presented because it is unlikely that he will be asked for his opinion! Nonetheless, pro- vision is made in the Act for the communication of "relevant information". 13 In addition, these functions, involving as they do the con- sideration of potential evidence, a finding of fact that such evidence is admissible and sufficient, the receiving of "relevant information" and "appropriate" information, have the odour of a judicial function. Under section 22 of the 1965 Act, where a treaty contains a prima facia requirement, the Court is obliged to decide that "sufficient evidence" exists. Very arguably the Attorney-General is being asked to fulfil the same judicial function. 14 Apart from that a proper case for judicial review might be made. For example, a person arrested on a warrant alleging he committed an offence in the UK, might say that at the time of the alleged offence he was in Iran and that therefore the Attorney-General's decision was not factually sustainable. 15 Under Article 30 of the Constitution the Attorney-General is the advisor to the Government "in matters of law and legal opinion". The State has sole responsibility for prosecuting extradition requests through the Courts and those proceedings are initiated on the advice of and taken by the Attorney. Under Article 40.3 the State has an absolute obliga- tion to respect the constitutional rights of the citizen and a qualified duty to protect and defend those rights. The meaning of the word "S t a t e" is unclear. There is

A DICTIONARY OF IRISH LAW By Henry Murdoch BL "This dictionary provides an excellent tool in the hands of lawyers both experienced and those less experienced as well" ... The Hon. Thomas A. Finlay, Chief Justice, writing in the foreward. Now Available Post Free Price IR£25 Paperback - IRC38 Hardback Direct from the publishers: TOPAZ PUBLICATIONS 6 4, Upper Georges Street, Dun Laoghsire, Co. Dublin ... or from leading booksellers authority for a wide construction. In People (DPP) -v- Madden 16 the Court of Criminal Appeal held that when a Garda failed to inform a prisoner, who was making a written confession, that his 48 hour detention had elapsed, this failure to accord "the Defendant his right to liberty, should he, the Defendant, desire to exercise his rights" amounted to a deliberate and conscious violation of his rights. The confession was excluded and the Defendant acquitted. On December 14th, 1988 the Attorney-General refused to initiate extradition proceedings against Fr. Patrick Ryan. No specific power is given by legislation to the Attorney to refuse to prosecute a request for extradition through the Courts. In a statement issued that day 17 the Attorney referred to the references to Ryan in British newspapers "often expressed in intemperate language and extravagently-worded headlines, and also assertions of his guilt of the offences comprised in the warrants" and to inferences of his guilt made in the House of Commons. Those factors would influence future jurors in Ryan's case and as "it would not be possible for a jury to approach the issue of his guilt or innocence free from bias" the Attorney refused to aid the violation of Ryan's right to a fair trial. Once the warrant is executed the accused must be brought before the District Court 18 as soon as is reasonably possible. 19 Although the hearing before the District Court under Part III had been judicially categorised as "largely

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