The Gazette 1989

GAZETTE

APRIL 1989

Ireland, unless in addition the receiver knew the goods were stolen or otherwise feloniously obtained. 11 The recent relaxation by the House of Lords of the definition of recklessness to an approximation of negligence 12 and the unique position in the common law world of some of our defences to murder 13 as well as the obvious reforms of English law assisting the prosecution, 14 leads the writer to the view that the correspondence between Irish and English criminal law is now minimal. However, the challenges mounted in the cases noted above have been ineffective due to the absence of an expert for the defence to give evidence as to what are the precise elements of the offence for which the fugitive is sought and as to how those elements differ from their UK counterpart. It remains to be seen what the High Court or Supreme Court would do in the event of the gulf between Irish and English law being clearly enunciated to them. 15 Identity Identity is a proof common to Part II and Part III of the Act. Under Part III the District Court can only make an order for delivery into the custody of a member of the UK police force "where a person named or described in a warrant is before" the Court. 1 Extradition under Part II is a formal order by the Minister 2 made after committal by the District Court, 3 the Justice being satisfied that the arrest warrant issued by him under section 26 or section 27 of the Act has been executed against a person before the Court whose extradition "has been duly requested". 4 Following the pattern of the Act, Part III places less formal emphasis on establishing identity than does Part II. The documents supporting a non United Kingdom request must include "as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality", 5 whereas no such requirement is made under Part III. Instead the endorsed warrant, being the document upon which the District Court acts under section 47 of the Act allows only for a name or description. In practice a name and current address (e.g. Mountjoy Prison) is

usually given together with former addresses. There is no reason why a date of birth should not be included. A Part II description is made Evidence by section 37 of the Act. Since the warrant under Part III will include a name or description then that name or description is evidence of identity admitted by section 55(1)(a). In both cases the task of the State is to match whatever name and description is given with the name and description of the accused. A photograph or fingerprint can be properly admitted under Part II if signed and certified under section 37, but formal proof is required for anything other than a name or description in a warrant under Part III. Probably this descrepancy is due to geographical proximity making it easier to produce a UK policeman to identify the accused or his fingerprints, or for a Garda to match up his name and address with those on the warrant. Nonetheless, the anomaly can cause confusion. In the case of Patrick McVeigh 6 the respondent was named and his current former addresses were given in the warrants. His current address and his name were proved by the Deputy Governor of Portlaoise Prison who stated that he was the only person of that name in the Institution, and his name and former address were proved by several Garda witnesses, to whom the prisoner had given them. 7 This evidence was unchallenged on behalf of the respondent who did not give evidence to contradict it or deny that identity. District Justice Ruane dismissed the application because there was no member of the requesting police authority in Court to identify the prisoner. This has never been a requirement under the Act, the express provisions of which dispense with such formalism and allow foreign documents and their content to be admitted in proof of all that is required for an order to be made. 8 Nor has the calling of a member of a foreign police force been the practice in extradition cases 9 and in Saurin -v- Ó hUadhaigh 10 Finlay P. was satisfied that there was evidence of identity before the District Court when a Detective Superintendent referred to a photo- graph of the accused in the English

Police Gazette. In England evidence that the person arrested never protested that he was not the person accused was held to be acceptable evidence as to identity 1 \ The Burden of Proof end the Burden of Adducing Evidence There is no recorded decision as to whether the State must prove all these matters as a probability or beyond reasonable doubt. 1 A person extradited will have to face criminal proceedings but the extradition itself merely determines if the person named in the warrant should stand trial elsewhere. Even a prima facia case requirement would not impose a beyond reason- able doubt standard on a requesting State with regard to the evidence against the accused and there seems no reason why the elements imposed by the Act should have a higher standard of proof than the balance of probability. The state must prove all the elements of its own case, but matters of defence, for example, whether the defendants funda- mental constitutional rights would be imperilled in the requesting State or whether the political exception applies, must be proved by the defence as a probability. 2 There are two aspects of the burden of proof; the burden of adducing evidence and the latter burden of proving one's case according the standard set, whether probability or beyond reasonable doubt. The latter is the final question of fact for the District Justice "is there sufficient evidence here for me to be satisfied that the man in the dock is the man described in the warrant, that the defence have not shown good reason for me to act on the documents before me and that the offences are corresponding?" The burden of adducing evidence falls on a party challenging a case to lead some evidence supporting that challenge upon which the District Justice might see fit to displace the State's case. 3 The challenge may come from cross examination, from a prosecution witness stating the opposite to the State case or by the accused giving evidence, but the challenge must be there and it is not legally there unless based on some evidence. 4 For all the evidence to point one way and for

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