The Gazette 1992

SEPTEMBER

1992

GAZETTE

Article 40.3; (5) the submission that the Tribu- nal's activities could prejudice the appli- cants' fair trial if criminal proceedings were brought against them did not invalidate the resolutions establishing the Tribunal; but the courts retained full jurisdiction to prevent an injustice occurring should an argument be made by an accused concerning pre-trial publicity. Magee v Culligan High Court, 25 January 1991; Supreme Court, 15 November 1991 CRIMINAL LAV2 - EXTRADITION - POLITICAL OFFENCE - EXCLUSION BY LEGISLATION OF CERTAIN OFFENCES FROM BEING CONSIDERED POLITICAL OFFENCES - WHETHER AMOUNTING TO CREATION OF RETRO- SPECTIVE CRIMINAL ACT - WHETHER CONSISTENT WITH CONSTITUTION - FIREARMS OFFENCES - . WHETHER POLITICAL - ADMINISTRATION OF JUSTICE -TEMPORARY JUDGEOF DISTRICT COURT-WHETHER INDEPENDENT - RISK OF ILL-TREATMENT - WHETHER ESTABLISHED - ESTOPPEL - DELAY - Courts of Justice Act 1936, s.51 - Courts (Supplemental Provisions) Act 1961, s.48(8) - Extradition (European Convention on the Sup- pression of Terrorism) Act 1987 - Constitution, Articles 15.5,35, 36.iii, 40.3, The applicant had been charged in the courts of Northern Ireland with murder and attempted murder of members of the British army. The deaths had involved the use of an M60 ma- chine gun. The applicant escaped from cus- tody in Crumlin Road Prison on 10 June 1981, two days before the conclusion of his trial for the offences referred to, and hewas convicted in his absence. The applicant was arrested in the State in January 1982 and was charged with and convicted of offences arising from his escape from custody, pursuant to the provisions of the Criminal Law (Jurisdiction) Act 1976. He was sentenced to 10 years imprisonment on foot of these convictions. On 23 October 1989, a temporary Justice of the District Court ordered the applicant's delivery to Northern Ireland on foot of war- rants seeking his extradition in respect of the 1981 murder and attempted murder convic- tions. The applicant sought judicial review of thisdecision. The applicant argued, interalia, that the 1987 Act created retrospective crimi- nal liability contrary to Article 15.5 of the Constitution by excluding offences involving the use of automatic firearems from the defi- nition of political offences within s.50 of the 1965 Act. HELD by Lynch J dismissing the application: (1) the 1987 Act was not incon- sistent with Article 15.5 of the Constitution, since it did not create a retrospective criminal act but involved the exclusion of certain offences form being regarded as political offences and thus merely developed the law on political offences; and assuming that the 1987 Act deprived the appl icant of a right not to serve a sentence of imprisonment, such was not a right protected under Article 40.3 of the Constitution and so the removal of the protection of the political offence exception by the 1987 Act in respect of the offences for which the applicant had been convicted was not unconstitutional; (2) s.51 of the 1936 Act, which provides for the appointment of tem- porary Justices of the District Court, and which was re-enacted to apply to the present District Court by s.48(8) of the 1961 Act, must be presumed constitutional and in the absence of any evidence in the instant case that the power to appoint had been used in an im- proper manner, the applicant had not estab- lished that s.51 was inconsistent with the Constitution; (3) having considered the evi- dence, the applicant had not established that he would be ill-treated if returned to Northern

that no interference with the judicial domain is involved and the same considerations ap- ply to matters which may in the future be- come the subject of civil proceedings; (5) the Tribunal might in practice affect the due course of a criminal trial which might later arise from the matters under its consideration, but such could be overcome by the observ- ance of fair procedures, and the Tribunal was not prohibited from inquiring into matters which might in the future be the subject matter of criminal proceedings; nor was the Tribunal precluded from inquiring into the circumstances surrounding past criminal pros- ecutions, provided it did not purport to re- open such prosecutions. In reHaughey [1971 ] IR 217 referred to; dicta in Victoria vAustralia Building Contractors and Building Labourers Federation (1981 -82) 152 CLR 26 approved; (6) where, as in the instant case, there was no challenge to the opinion expressed in the resolutions of the Houses of the Oireachtas that it was in the public interest to inquire into the allegations concerned here, the Tribunal was not precluded from inquiring into dis- putes between private parties. Watkins v United States, 354 US 178 (1956) referred to; (7) there was no rule of law requiring the Tribunal to observe the rules of evidence, but since it must observe fair procedures it might be required to hear parties affected by the admission of hearsay, as it had indicated in the instant case; nor was there an obligation on the Tribunal to hear evidence in advance of testimony being given at a public hearing of the Tribunal, although the Tribunal indi- cated that in most instances it would attempt to obtain statements in advance from wit- nesses; (8) the Tribunal was entitled, in the absence of any indication to the contrary, to inquire into all of the allegations made in the Oireachtas and on the television documen- tary and no ground had been established which would restrict the allegations intowhich the Tribunal could inquire. On appeal by the applicants HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dismissing the appeal: (1) the pre- sumption of constitutionality, deriving from the respect of one organ of government for another, should be held to apply mutatis mutandis to the resolutions passed by the Houses of the Oireachtas as it does to Acts of the Oireachtas. Dicta in East Donegal Co-Op Ltd vAttorney General [ 1970] IR 317 appl ied; (2) the proceedings of the Tribunal had none of the ingredients of a criminal trial within the meaning of Article 38 of the Constitution. Dicta in Deaton vAttorney General [1963] IR 170 and The State (Murray) vMcRann [1979] IR 133 applied; (3) the Tribunal was not engaged in the administration of justice within the meaning of Article 34, since although it might be engaged in a controversy as to the existence of legal rights or the violation of the law, it would not make legally binding determinations but would report its findings of fact to the legislature in vacuo; and the powers conferred on the Tribunal by s.6 of the 1979 Act allowed it to operate more effec- tively, but did not in any way involve the administration of justice. Dicta in McDonald v Bordna gCon [1965] IR 217 applied; dicta in Victoria v Australia Building Contractors and Building Labourers Federation (1981 -82) 152 CLR 26 approved; (4) the Court should apply a presumption that the Tribunal would apply fair procedures in accordance with

Ireland; (4) the delay in seeking the appli- cant's extradition arose from his imprison- ment in the State.on foot of his 1982 convic- tion and thus no ground relating to delay had been made out; (5) the Northern authorities were not estopped from seeking extradition since they did not seek extradition in respect of the applicant's prison escape and they had given undertakingsthattheterm served inthis State would be taken into account, and there was therefore nothing oppressive or unjust involved in the extradition within the mean- ing of s.50(2)(bbb) of the 1965 Act, as inserted by the 1987 Act; (6) the offences relating to possession of firearms could be regarded as political offences within s.50 of the 1965 Act, since although they were committed on be- half of the IRA they did not as such involve subversion of the Constitution, but this was subject to the provisions of the 1987 Act. Finucane v McMahon [1990] ILRM 505; [1990] 1 IR 165 applied; (7) since the firearms offences had resulted in the commission of murder, the application of the political of- fence exemption was precluded by s.3(3)(a)(v) of the 1987 Act and the plaintiff's application for release under s.50 of the 1965 Act would therefore be dismissed. On appeal by the applicant on the constitutional issues HELD by the Supreme Court (Finlay CJ, Hamilton P, Hederman, McCarthy and Egan JJ) dismissing the appeal: (1) Article 15.5 of the Constitution did not contain any general prohibition against retrospective legislation, but only against leg- islation which declares acts retrospectively to be infringements of the law; and since the 1987 Act did not declare any act to be an infringement of the law but merely made a statutory amendment to a developing juris- prudence, it could not infringe Article 15.5; (2) the appl icant did not have any vested right to be dealt with in accordance with any law which might have applied in 1982, and fair procedures required only that the application for his extradition would be dealt with in accordance with the law applicable at the time of the appl ication, and thus the use of the 1987 Act in the instant case did not involve the State in infringing the applicant's rights under Article 40.3; (3) although the Judge of the District Court in the instant case was a temporary Judge within s.51 of the 1936 Act, this did not in any way affect his independ- ence of function under Article 35.2 of the Constitution since his warrant of appoint- ment was held under the President and for the period of his appointment he was free in the exercise of his functions; and the fact that as a temporary Judge his removal was not sub- ject to the same protections as for permanent members of the judiciary did not affect his independence and was a permitted regula- tion of the business of the courts under Article 36.iii. Sloan v Culligan High Court, 25 January 1991; Supreme Court, 15 November 1991 CRIMINAL LAW - EXTRADITION - POLITICAL OFFENCE - EXCLUSION BY LEGISLATION OF CERTAIN OFFENCES FROM BEING CONSIDERED POLITICAL OFFENCES - WHETHER AMOUNTING TO CREATION OF RETRO- SPECTIVE CRIMINAL ACT - FIREARMS OFFENCES - WHETHER POLITICAL - UNDERTAKING BY REQUEST- ING AUTHORITY CONCERNING BALANCE OF SEN- TENCE BALANCE HAVING EXPIRED - RELEASE OR- DERED - Constitution, Article 15.5 - Extradition Act 1965, s.50 - Extradition (European Convention on the Suppres- sion of Terrorism) Act 1987, s.3 The applicant had been charged in the courts of Northern Ireland with possession of auto-

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