The Gazette 1989

GAZETTE

APRIL 1989

then made to Dublin, possibly by pre-arrangement, from London to a Garda Inspector stating that a further arrest warrant had been issued in the UK and requesting her urgent arrest thereon in Ireland. District Justice Conellan then issued an emergency warrant' under section 49 of the Act. This was executed some short time after her release and she was brought before the Court. Notwith- standing that the section requires the person to be remanded for up to three days to await the arrival of the warrant from the UK, District Justice Plunkett embarked on an issue as to whether the original release of Ms Glenholmes was illusory because of a pre-arranged plan to immediately apply for an emergency warrant while keeping the released prisoner under tight surveillance. The District Justice decided the issue in favour of the defence, ruling that the second arrest was deliberately unlawful because "the release meant nothing in the events that followed". 10 The Glenholmes case would not be decided the same way today. In Kane , -v- The Governor of Mountjoy u the Supreme Court held that the Gardai were justified in keeping the applicant under close surveillance in the expectation of the arrival of an Extradition Warrant. Finlay, C. J. further stated that "the essential feature of detention in this legal context is that the detainee is effectively prevented from going or being where he wants to go or be and instead is forced to remain or go where his jailer wishes him to remain or go". A warrant may be executed anywhere in the State by any Garda 12 who should read the warrant to the prisoner and give him a copy of it. The prisoner should be asked, on being taken before a District Justice, if he needs an adjournment to seek legal representation. 13 For the purpose of executing the warrant a Garda may enter private property and may, on being refused entry break an entry using reasonable force. 14 A Garda may also validly arrest someone already under arrest. 15 The Validity of the Warrant and Associated Documentation There are three basic documents which must be produced before the

technical question of UK law involved and nor is there a requirement for the verifying affidavit to be sworn as a foreign affidavit, or for the certificate to be otherwise authenticated. But any of these documents may be bad on its face. Because the only way something can "appear" from a document, is that the document should exhibit the characteristics and give the information that the Act requires. The Act seems to require that it appear: (a) That the warrant is a warrant for arrest. 10 (b) That the warrant was issued by a judicial authority. 11 (c) The judicial authority operates in a place specified under section 41 of the Act. 12 (d) That the warrant was duly signed. 13 (e) Probably it should contain the particulars to be expected of a warrant; date and place of commission, short particulars of the offence 14 and of the enactment infringed and a statement that the judicial authority is competent and has power to issue the warrant in the place where it was issued. (f) It should be endorsed for execution under section 43 of the Act and if the warrant is to arrest a convicted person, should probably specify the particulars in section 43(3), ije. the length of the unexpired position of the sentence. (g) The verifying affidavit need simply verify the signature, usually be exhibiting the warrant, identifying it and stating that on the specified date it was signed by the judicial authority, the deponent being present and witnessing the signature appearing on the warrant. (h) The affidavit should be sworn before a person who states who and what he is and that he is authorised to take affi- davits by the law of the place where the judicial authority signing the warrant operates. 15 (i) The affidavit should have the

District Court to ground an appli- cation for extradition to the UK. They are: (a) A warrant issued by a judicial authority in the UK. 1 (b) An Affidavit verifying the signature on the warrant. 2 (c) A certificate that the offence charged is indictable and if also summary carries a maximum sentence of at least six months. 3 In serious extradition cases the offences will usually be indictable only but if an offence is being proceeded with summarily then either service of the summons or breach of a recognisance or bail bond must also be proved. 4 There are two possible points that can arise from these docu- ments (A) that they are invalid under UK law and (B) that they are bad on their face. The first is easily disposed of since Irish Courts have no competence, in the absence of expert evidence, in construing foreign law. 5 Once the defence wish to challenge the validity of the issue of the warrants by calling expert evidence then it must be received. 6 In its absence, however, the Court cannot entertain a point as to whether the warrant was properly issued or if an immunity existed in respect of the prosecu- tion of the person sought. Thus, in McMahon -v- McDonald 1 the respondent had been discharged by the President of the District Court on warrants relating to the sale of Irish passports in London because there was no proof of proper consent to the institution of pro- ceedings against him and no evidence that his diplomatic immunity from prosecution had been waived. It was held that both points could only be ruled on where expert evidence was produced. This is so even though the statutes and treaties grounding the sub- missions were common to both. 8 Since such evidence of invalidity under UK law may be given by the defence it is prudent for the pro- secution to have their own expert on that law available to challenge any evidence that may be given. 9 The documents are proved by their production to the Court. They are presumed valid unless the Court sees good reason to the contrary. The word that is used in sec.'^n 54 and section 55 of the Act is "appearing". There is no

basic characteristics of an affidavit; a proper title, a date, a swearing and identifying clause, an averment of knowledge of the facts and a signature by the deponent

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