The Gazette 1989

GAZETTE

APRIL 1989

differentiate him from other escapees where the State did not seek to challenge the validity of the political exception, would amount to an unconstitutional act of discrimination. Specialty The defence of specialty applies only to cases of extradition under Part II of the Act. 1 The Minister now has the power to apply the rule of specialty and the rule against re- extradition to Part III of the Act, but has not yet done so. 2 The practitioner in raising the defence should seek in the documents provision for the rule against specialty made binding either in the clause of a treaty or in the statement of law of the requesting country. 3 Thereafter it is a matter for the Courts of the requesting state to apply the rule of specialty and the District Court here will have fulfilled its function under the Act by specifying in its orders the foreign offences for which it is granting extradition. 4 Conclusion Extradition is an absolute necessity in fostering good international relations between neighbouring states. The alternative is the dishonest turning of a blind eye to the distress caused to citizens of other countries by fugitives within our borders. In cases to which the 1987 Act applies, the State can respond by prosecuting the alleged offender, but only where an extra- dition application has failed or is likely to fail. 1 Independence and the develop- ment of constitutional law have caused a huge rift to develop between the Irish and the British legal systems. A country which has fought so hard for its independence is likely to have done so because of

a fundamental divergence in approach on many major problems from its former rulers. Anyone who has practised in the Criminal Courts is aware of the difficulties inherent in convincing an Irish jury of proof beyond a reasonable doubt. The writer's limited experience with the Courts of the UK leads him to the view that the difficulty is not so severe in that jurisdiction. Perhaps citizens of the UK have a greater respect for the institutions of government and have more trust in their public servants. The greater ease with which guilty verdicts are obtained in that jurisdiction does not apply only in cases where Irish people are charged with terrorist type offences. In the writer's view it applies all the way across the spectrum of criminal offences, irrespective of the nationality or race of the defendant. It would be foolish, however, to ignore the very real danger of prejudice or, perhaps, the more likely instinct of a people under attack to rally behind their leaders and institutions. That instinct is not specifically British in character. The Irish people share this fundamental human quality, albeit tinged with native scepticism. The Criminal Law (Jurisdiction) Act 1976 gives the authorities an option of prosecuting in respect of offences in Northern Ireland. Similar provisions might usefully be extended to the United Kingdom. As stated at the outset of this article, extradition is not a matter of discretion and the writer can see no legal sense in giving a Court a decision between extradition to a foreign state and trial within the jurisdiction. It is impossible to imagine the Court exercising its discretion on grounds other than those already contained in the Act relating to possible prejudice as a

result of race, nationality or political opinion. The Courts are, however, involved only in extradition cases to ensure the principles of legality and constitutional justice. While their powers are statute given they need not be invoked. At all stages of the procedure the Minister for Justice retains a power to act. He may quash a warrant or an order of extradition but he is, of course, obliged to act legally and within the framework of the Act. Furthermore, whether the extradition of a fugitive is sought depends on a political decision made in the UK. Trial within the jurisdiction for extra terratorial offences is a real alternative to extradition. It may, however, be seen in the extraditing state as a slight to their system of justice. Political consent would make such an alternative possible, but it is dependent to such a degree on the realisation by Irish politicians of the harm that failure to extradite fugitives may cause to the fabric of our society as well as that of the requesting state, and upon a realisation by the British authorities that even the best system of justice is subject to human prejudices, that it seems to be improbable. Practicality is a greater incentive. Since 1982 up to 70% of extra- dition requests by the UK in major terrorist-type offences have failed due to technical shortcomings in proofs. 2 The Criminal Law (Jurisdiction) Act 1976 has, in the cases taken under it, resulted in a guilty verdict in 14 of 15 cases. 3 The argument for politicians to make greater use of the Act and to extend its operation to Great Britain is compelling. 4 Footnotes Extradition to Countries other than the United Kingdom 1. All the orders made under this section are to be found in Humphries - An

Doyle Court Reporters Court and Conference Verbatim Reporting 2, Arran Quay, Dublin 7. Tel: 7 2 2 8 3 3 or 8 6 2 0 9 7 (After Hours) Excellence in Reporting since 1954

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