The Gazette 1989

GAZETTE

APRIL 1989

the requesting state. 4 This should also state the maximum penalty or the unexpired time of a sentence. 5 4. A statement of the relevant law or a copy of the relevant enactments. 6 5. A description of the person wanted and such other infor- mation (e.g. fingerprints or photographs) as will help establish his identity and nationality. 7 6. Any further documents required by treaty, e.g. under the Washington Treaty, a statement of the facts of the case is required. 0 7. A copy of the Order applying Part II to the relevant country and where there is a treaty, incorporating its terms. 9 Defences The Defences which the District Court must consider under Part II of the Act are succinctly set out by Barrington J. in State (Gilliland) -v- Governor of Mountjoy Prison; 1 "It may not make an extradition order if the offence alleged is a political offence or an offence connected with a political offence, or if there are substantial grounds for believing that the request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion. Extradition may not be granted for offences under military law which are not offences under ordinary criminal law or for revenue offences. Extradition may not be granted where the person claimed is a citizen of Ireland unless the relevant Extradition Treaty otherwise provides, extradition may not be granted if the offence for which it is requested is regarded under the law of the state as having been committed in the state; or where a prosecution is pending in the state against the person clamed for the offence named; or if final judgement has been passed in the state or in a third country upon the person claimed in respect of the offence; or if the prosecution is statute-barred in the requesting or the requested country; or, in certain circumstances and in the absence of certain assurances, if the offence charged carries the death

on the Prevention of Terrorism) Act 1987, which automatically applies to requests from the UK and can be applied, by Ministerial Order, to other countries, whether they are party to the Convention or not, 7 most serious offences of a terrorist type are excluded 8 or can be excluded. 9 Thus hijacking type offences relating to aircraft, serious attacks on or attempts to kidnap internationally protected persons, serious false imprisonment and an offence involving the use of an explosive or an automatic firearm where persons are endangered, are no longer subject to the political offence exemption. 10 Their accomplices are similarly excluded and and attempts to commit those offences are encompassed in their definition. 11 In addition a unique discretionary element is introduced by section 4 of the 1987 Act where the Court or the Minister is con- sidering a serious offence involving an act of violence against the life, physical integrity or liberty of a person, or an act against property which created a collective danger for persons, can regard those acts as being outside the defence on considering the danger the acts created, their effect on persons foreign from its motives and whether any cruel or vicious means were used in its commission. 12 Under section 6 of the 1987 Act where an application for extradition in respect of any of those offences is refused, the DPP has the option of trying the accused in the State and may commence those proceedings before such a refusal if it appears likely. It was once thought that Article 29.3 of the Constitution prohibited the extradition of political offenders, 13 but this view has not been litigated. In any event the definition of a political offence will now almost inevitably coincide with the principles set out in section 3 and section 4 of the 1987 Act. 14 2. Because all acts of the Oireachtas are subject to the Cons- titution and, if possible, must be given a Constitutional inter- pretation, 15 the political exemption will not be construed "as having the intention to grant immunity from extradition to a person charged with an offence the admitted purpose of which is to further or facilitate the overthrow

penalty in the requesting country. Again extradition is not to be granted unless provision is made by the law of the requesting country or by the extradition agreement to observe the rule of specialty. Finajly, if the relevant extradition provisions require the production by the requesting country of evidence as to the commission by the person claimed of the offence for which extradition is requested, extradition shall not be granted unless suffi- cient evidence is produced to satisfy this requirement." Most of these defences are self- explanatory. The defence sections under Part II are contained in sections 11-22 of the Act and in Part III they are contained in section 44 2 and in section 50 of the Act. In addition by section 3 of the Extradition (Amendment) Act 1987, the Minister may apply the rule of specialty to the UK. We shall now consider the more important defences common to both parts. Political Exemption Under Part II of the District Court cannot make an order for extra- dition 1 and under Part III the Minister must order a warrant not to be endorsed 2 or on appeal from the District Court, the High Court must 3 quash an order in respect of a person sought for "a political offence or an offence connected with a political offence". Similarly if extradition for an overtly non political offence is sought for the purpose of prosecuting or punishing the prisoner on account of his race, religion, nationality or political opinion, or prejudice will result to him from any of these reasons, he may not be extradited. 4 This separate aspect of the political exemption remains untarnished by what follows, but in contrast to the other aspects of the defence it has never been accepted by any Court. The burden of proving these defences is on the accused. 5 Three propositions may be tentatively stated: 1. The political offence exemption does not apply to certain offences. Even up to 1987 the killing, or attempted killing, of a Head of State or a member of his family were excluded from the defence. 6 With the coming into force of the Extradition (European Convention

162