The Gazette 1989

GAZETTE

APRIL 1989

offence. 1 Just as, at common law, it is illegal to arrest for the purpose of questioning, so under Irish law persons are not surrendered for the purpose of interrogation. In Russell -v- Fanning 2 the Supreme Court held that if the RUC were operating a policy of diverting extradited persons from their Court appear- ances in order to interrogate them, extradition should not be ordered. The closest our law comes to the requirement of a prima facie case is the principle enunciated in Russell's case that extradition is granted only for the purpose of meeting a case; foreign police forces are not entitled to seek the extradition of prisoners in the expectation that upon their surrender they may interrogate them and thereby build such a case. 3 The duty of the Courts pursuant to Article 40.3 to defend and vindicate the personal rights of the citizen can clearly only be exercised within the jurisdiction of the Courts. But the Courts will not countenance any procedure, including extradition, the effect of which is to set those rights at nought. Thus, extradition will not be granted to a requesting juris- diction which will probably subject the prisoner to unfair procedures, 4 assault, torture or inhuman treat- ment. 5 Six affidavits by prisoners in Northern Ireland were filed in the case of Robert Russell alleging that after escaping from the Maze Prison on 25th September 1983 and on being recaptured they were beaten by prison officers and subjected to various forms of inhuman treatment including de- privation of clothing. In reply, an affidavit from a Deputy Governor of that prison assured Russell safe conduct and went on to depose that the prisoners in question were pursuing civil remedies against prison officers in respect of those alleged assaults. Because of the absence of a policy to subvert constitutional rights on the part of the authorities in the Maze Prison, and because a remedy at civil law was available to the prisoners, it was held that the defence had not made out their case as a probability. The Fr. Ryan decision by the Attorney-General 8 is the only occasion when it has been accepted in Ireland that an

by violence of the Constitution and the organs of the State established thereby." 16 The Supreme Court, in 1985, adopted this principle in Quinn -v- Wren where they were faced with an affidavit alleging that £600 had been obtained by false pretences in London, by the defendant, in order to further the aims of the INLA to violently establish a 32-county workers republic. This amounted to a request to the Court to extend legal shelter to those who would, by force of arms, destroy the Cons- titution. Not surprisingly that request was refused. In the High Court an applicant called Robert Russell convicted of the attempted murder of an RUC officer, who had escaped from the Maze Prison, then entered a qualifying affidavit to his section 50 application stating that the IRA, to which he belonged, did not intend to over- throw the Constitution but to use force in Northern Ireland to end British rule there. 17 O'Hanlon J. and the Supreme Court by a 3 to 2 majority interpreted the principle in Quinn's case as extending to any usurpation of the functions of Government; since the Govern- ment's policy was to reintegrate the National Territory peacefully, the Court would not constitution- ally offer protection to members of an organisation differing from that policy. 18 The fierce dissent of Hederman and McCarthy JJ. would not have occurred if the IRA were proved to have similar motives to the INLA. 19 The analysis of the political motivations of both organi- sations may await consideration in a future case. 3. The Courts have not defined what a political offence or an offence connected with a political offence is, but have stated that the political exemption cannot apply unless "the person charged was at the relevant time engaged either directly or indirectly in what reasonable civilised people would regard as political activity". 20 Each case must be judged on its own facts. 21 Constitutional Protection and Bad Faith The extradition procedure exists in order to secure the capture of a convicted person due to serve a sentence or to proceed against a person accused of a criminal

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extradition to England or Northern Ireland would have the effect of violating the accused's con- stitutional rights. As noted above, that was an instance where the Attorney-General refused to initiate extradition proceedings, thus relieving the accused of the normal burden of proving, as a probability, that his constitutional rights would be infringed in the requesting jurisdiction. It has been the writer's experience that cases of possible jury prejudice, as a result of unfavourable media comment on the accused, have been dealt with here by a suitable adjournment in order to allow memories to fade. Perhaps that course was not suitable in this instance. Delay and Diacrimination It is a defence to extradition pursuant to Part II of the Act that under Irish law, or under the law of the requesting state, the time for taking a prosecution has elapsed. 1 Extradition, under both Parts, will be refused if it would be unfair, invidious or oppressive because of the efflux of time. 2 An example of an invidious situation occurred in McMahon -v- Leahy, 2 where following an escape from the Maze Prison in 1975, several escapees had sought refuge in Ireland. McMahon was one of these. Several of his colleagues were sought in extradition proceedings but all raised the political exception. Because the Supreme Court only redefined the nature of a political offence in 1982 4 they succeeded. The proceedings against McMahon commenced over a year later. The Supreme Court held that to

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