The Gazette 1989

GAZETTE

MARCH 1989

An Outline of Extradition Law

Part I

"Where the liberty of any person, be he citizen of this State or

otherwise, is concerned, where valid arrest is fundamental to the

validity of the proceedings, where sweeping powers are given to

the Police Forces of two adjoining jurisdictions, / am not prepared

to overlook the careless approach and lack of attention to detail

• • • "per McCarthy J. in McMahon -v- Leahy

[1984] IR 525; [1985]

ILRM 422.

Introduction

Extradition

is not a matter of

discretion. The State has entered

to a series of international

arrangements and treaties,

which

obliges it, on request, to hand over

fugitives within its borders. Under

the Extradition Acts,

the State

has no option between extradition

to a requesting State and trial and

Punishment for an extra terratorial

offence

within the jurisdiction.

Extradition proceedings concern

themselves not with the merits of

returning a person to the place

where he allegedly committed an

offence,

nor with the strength of

the case against him,

but simply

with whether or not the proofs laid

down in the Act have been

complied with. Because of the

difficulties of proving documents

and ensuring the attendance of

foreign witnesses, considerable

assistance is given to the State by

presuming documents to be valid in

certain circumstances and allowing

their contents to be an exception to

the hearsay rule.

The task of the

State is to ensure their documents

comply with the Act and prove

adequately what it requires. The

defence lawyer is concerned to

spot and exploit gaps in the State's

proofs or challenge the documents

as having been invalidly issued in a

foreign jurisdiction or as being bad

°n their face. The writer's task is to

concisely set out and consider

those proofs and in so doing

expose areas of possible weakness

for future consideration.

Extradition is most often

requested to the United Kingdom

(governed by Part III of the Act). It

>s considered in most dertail and is

followed by a discussion of our

arrangements with other countries

(governed by Part II of the Act). A

considertaion of some of the more

important defences, including the

political exemption, concludes the

article.

UNI TED K I NGDOM (PART II)

Persons may be tried in the State

for a wide range of terrorist-type

offences committed in Northern

Ireland, under the Criminal Law

(Jurisdiction) Act 1976. This act

does not extend to the remainder

of the UK. The act therefore treats

Northern Ireland and the remainder

of the United Kingdom separately.

Peter Charleton,

B.A.(Mod),

Barrister-at-Law

In some circumstances, the State

has extra-terratorial jurisdiction for

crimes committed outside Ireland

(see footnote 4 in the previous

section). Section 4 of the Criminal

Law (Jurisdiction) Act, in addition

gave jurisdiction to try any Irish

citizen, who, outside the State,

causes an explosion, possesses an

explosive or conspires to cause an

explosion. This section runs against

the general scheme of the act,

which is to treat Ireland and

Northern Ireland as one juristic

entity for the purpose of terrorist

crime and extends that principle, in

the case of explosives, to the rest

of the United Kingdom and the

world. At the time of writing it is

proposed to try Fr. Patrick Ryan

under this section for conspiring to

cause explosions in England.

Clearly persons may also be

extradited to Northern Ireland and

the UK. There is no option given in

any of the enactments between

trial in the State and extradition. As

to whether trial or extradition is

requested in respect of Northern

Ireland cases is a matter of politics,

not law.

Extradition to the United

Kingdom is governed by Part III of

the 1965 Extradition Act, as

amended. It is brought into

operation by a Garda Com-

missioner

endorsing a UK warrant

for execution here (the "backing of

warrants" system). If the warrant

is for arrest following a conviction

or following committal pro-

ceedings, the Attorney-General has

no function.

But if it is otherwise,

the Attorney-General must be

satisfied that the UK authorities

intend to prosecute or continue the

prosecution of the alleged offence

and that their intention is "founded

on the existence of sufficient

evidence".

If he is not so satisfied

then he must direct that the

warrant should not be endorsed. A

feature of extradition law in the UK

is that before extradition is granted,

a requesting state is usually

required to make out a

prima facie

case of guilt. Extradition arrange-

ments between Ireland and the UK

were made in 1965,

following the

collapse of the previous arrange-

ment,

with the passing of the

Extradition Act 1965 (hereinafter

referred to as "the Act"). At that

time, Ireland intended to ratify the

1957 European Extradition Con-

vention

which does not have the

requirement of a

prima facie

case.

If such a requirement had been

imposed on the UK it would have

been an anomalous feature of the

J f r /

U p

Peter Charleton.

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