The Gazette 1989

GAZETTE

APRIL 1989

the accused to remain mute leaves only one finding open. 5 Point of Departure If the District Justice is satisfied with the evidence offered on behalf of the State, and no defence evidence has been offered to rebut it on the balance of probabilities, he should, before making an order, hear the accused on how he wishes to travel from the State 1 . The Justice should specify a particular place as that point of departure; merely to specify "Dublin" is insufficient. 2 The accused should be informed of his right to apply to the High Court under sectin 50 or to seek an order of Habeas Corpus. 3 Part 2 of this article will be published in the May Gazette. FOOTNOTES Two sections of this article were originally prepared for the Criminal Law Journal (U.K.), and first published there in 1989. Introduction 1. In this Article the 1965 Extradition Act is referred to as "the A c t" and the reference to a section is, unless otherwise stated, to a section of that Act. The Extradition (European Convention on the Suppression of Terrorism) Act 1987 is referred to as the 1987 Act. The Extradition (Amend- ment) Act 1987 is given its proper title 2. Pursuant to section 8 of the Act, a full list is given in Humphries - An Index to the Irish Statutory Instruments, at 846-848. 3. The 1965 Act, the 1987 Act and the Extradition (Amendment) Act 1987. 4. The list of offences where the State has extra-terratorial jurisdiction is now quite vast; see Ryan and Magee - the Irish Criminal Process, p. 2 5 - 2 9, the Criminal Law (Jurisdiction) Act 1976, the Air Navigation and Transport Acts 1973 and 1975 and the Extradition Act 1987, section 5. 5. Section 9, section 47. 6. The State can require a prima facie case under treaty; section 22. 7. The main provisions are - Part II: section 26, section 37; Part III; section 51, section 54, section 55 (as amended by section 2 of the Extradition (Amendment) Act 1987). 8. Considerable assistance can be had with these cases from Forde - Extra- dition Law in Ireland, Dublin 1988. United Kingdom 1. Or Deputy, or Assistant Commissioner, who must apply his mind to the con- ditions for endorsing it under section 43. The emergency warrant procedures contained in section 49. 2. Section 44A(1) and section 44D, as inserted by section 2 of the Extradition (Amendment) Act 1987. 3. Section 44B as inserted by section 2 of the Extradition (Amendment) Act 1987.

4. In any proceedings under Part III, it is presumed by section 44C, that the Attorney-General did not so direct; see further section 55(3) as inserted by section 2(1)(c) of the Extradition (Amendment) Act 1987. 5. The 1965 Act commenced by SI 161 of 1965 and the Backing of Warrants (Republic of Ireland) Act 1965, as ^ commenced by SI 1965 No. 1850. 6. Found to be unconstitutional because they allowed the immediate execution of warrants and excluded the possibility of a Habeas Corpus application: State (Quinn) -v- Ryan [1965) IR 70. 7. And did so on May 2nd, 1966. 8. Unless the treaty requires a prima facie case, the Act does not require one to be made out; section 22. 9. Paul O'Higgins, 15 ICLQ (1966) 369, 391. 10. Section 55, and see section 7 of the United Kingdom Act; Keane -v- Governor of Brixton Prisonl 1972] AC 204. 11. Section 44, as amended by section 8 of the 1987 Act and section 50 (Part III) and section 11 (Part II) as limited by section 3 and section 4 of the 1987 Act. Note the Act applies automatically to the UK but requires an order to apply as to any other country. 12. It may be that the Act is attempting to distinguish between sufficient evidence to found an intention to prosecute and sufficient evidence to prosecute. Were that to be so the word "information" should have replaced the word "evidence". 13. Section 4 of the Extradition (Amend- ment) Act 1987. I find it impossible to say what this section means. 14. Article 37 of the Constitution expressly forbids the exercise, in criminal matters, of limited powers and functions of a judicial nature, by persons who are not judges; the State (Clarke) -v- Roche [1986] IR 635; [1987] ILRM 309 and the 1987 Supplement to Kelly - The Irish Constitution, p. 51-54. 15. On this point see Hogan's commentary on the Act in ICLSA 87/25-01. 16. [1977] IR 336. 17. See the full text of the statement as published in the Irish Times of December 14th, 1988. 18. The powers of Peace Commissioners under the Act are constitutionally suspect having regard to Article 37; see State (Lynch) -v- Ballagh[ 1986] IR 203; [1987] ILMR 65. 19. Dunne -v- Clinton [1930] IR 336 and unreported. 20. Barrington J. in State (Gil/Hand) -v- Governor of Mountjoy Prison [1986] ILRM 381 at 384. Arrest 1. Section 43. 2. Per Barrington J. in The State (Gilliland) -v- Governor of Mountjoy Prison [1986] ILRM 381 at 348. 3. Per Barrington J. in The State (McFadden) -v- Governor of Mountjoy Prison [1981 ] ILRM 133 at 116; see also Walsh J. in State (Holmes) -v- Furlong [1967] IR at 210. 4. Section 48. 5. The People (AG) -v- O'Brien [1965] IR 142. 6. The People (DPP) -v- Madden [1977] IR 336.

7. As Egan J. found; State (Trimbole) -v- Governor of Mountjoy Prison [1985] ILRM 465. 8. Per Barrington J. in The State (McFadden) -v- Governor of Mountjoy Prison [1981] ILRM 113 at 118. 9. [1930] IR 336. 10. The Irish Times, March 24, 1986. Under the 1987 Act, section 6(3)(c), the DPP may commence a prosecution because of a likelihood that an extra- dition application will be refused. 11. Supreme Court unreported, 11 May 1988. 12. Section 45(1). 13. State (McFadden) -v- Governor of Mountjoy Prison [1981] ILRM 113. 14. McMahon -v- McDonald, Barrington J. unreported 3 May 1988, p. 28 and DPP -v- Corrigan [1986] IR 290. 15. The People (DPP) -v- Nicholas Kehoe [1985] IR 444. A point as to an invalid arrest should be taken at the first opportunity. 1. Section 54(1). 2. Section 54(1). 3. Section 54(2). 4. Section 51, Section 54(3), Section 55(1)(b). 5. Per Walsh J. in The State (Furlong) -v- Kelly [1971] IR 132 at 143. 6. Henchy J. in Gillespie -v- Attorney General [1976] IR 233 at 236. 7. High Court unreported, Barrington J., 3 May 1988, Supreme Court unreported, 27 July 1988 (impromptu judgment). 8. By section 55 as amended by section 2 of the Extradition (Amendment) Act 1987. 9. Otherwise the presumptions under section 55(1) will be simply rebuted. 10. Section 43. 11. Section 43, section 54(1), section 55(1). A judicial authority can be a Justice of the Peace; Russell -v- Fanning [1988] ILRM 333. 12. Section 55(1)(a). 13. Section 55(1)(a). 14. State (Furlong) -v- Kelly [1971 ] IR 132, see particularly Walsh J. at 143; this is necessary for the purpose of testing correspondence though an affidavit can fulfill the same function. 15. Section 54(1), section 55 (1)(a). 16. Section 54(2) and (3), section 55(1)(c). 17. Section 54(2). 18. This apparently was the problem before The Validity of tha Warrant and Associated Documentation 2. State (Furlong) -v- Kelly [1971 ] IR 132, per Walsh J. at 142, as a result of which Form 15 was introduced by SI 275 of 1971. This requirement is not to be read into Part II; State (Gilliland) -v- Governor of Mountjoy Prison [1986] ILRM 381 387. See also Wyatt -v- McLoughlin [1974] IR 378 (failure to state the corresponding offence does not invalidate the order). 3. Mulloy -v- Sheehan [1978] IR 438. 4. State (Furlong) -v- Kelly [1971] IR 132 at 143; the affidavit method is rarely used as it is not a document the validity of which is presumed under the Act. District Justice Conellan in the Glenholmes case, see The Irish Times March 24 and 25, 1986. 19. Section 55(1). Correspondence 1. Section 47(2).

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