The Gazette 1989

GAZETTE

APRIL 1989

legal system requiring evidence of

guilt from our nearest neighbour,

but not from any other European

country. This possible absurdity,

coupled with a desire to retain the

convenience of a backing of

warrants system, albeit securing

the prisoner's right of access to the

Court to test the validity of his

detention, resulted in a system

whereby Ireland and the UK had

merely to issue and prove a valid

warrant

to secure a fugitive from

the jurisdiction of the other. This

was perceived as somewhat

unsatisfactory. In 1985, two

acquittals resulted in Northern

Ireland following extradition from

the State. In September, Dominic

McGlinchey was acquitted of the

murder of a Post Mistress and later

the same month Séamus Shannon

was acquitted on charges relating

to the murder of Sir Norman Strong

and his son. This prompted the

SDLP to call for the introduction of

prima facie

case requirement into

Ireland's extradition arrangements

with the UK. In 1987, the perceived

emasculation of the political

offence exemption to extradition

by the Extradition (European

Convention on the Suppression of

Terrorism) Act and the concern

evoked by the appeal to the UK

Court

Appeal

the

"Birmingham Six", prompted

further similar calls. The result was

the Extradition (Amendment) Act

1987 passing the effective duty of

deciding whether there is or is not

a case based on "sufficient

evidence" to the Attorney-General.

Whatever of its expediency in

political terms, the Act makes little

sense legally.

The Attorney-General may

consider "such information as he

deems appropriate". It is difficult to

see how he can consider anything

other than evidence admissible in

a UK prosecution because any

other information could not be

introduced at the requested

person's trial and so help the

prosecution to

establish a

"sufficient" case.

Such informa-

tion will, one presumes, consist of

written statements. There is

nothing in the Act to stop the

Attorney-General interviewing a

witness, apart from the principal of

constitutional construction which

would, one would think, prohibit

him from acting as a kind of

examining magistrate in the

absence of the parties. A case

made on paper is very different to

a case presented in Court. No

analysis of the "Birmingham Six"

case could conclude that there was

insufficient evidence to bring the

case to trial. Its disturbing features

involved objectively strong forensic

evidence rendered weak by cross-

examination, a case otherwise

almost entirely dependent upon

confession statements by the

accused and an allegation by the

defence that these were obtained

by oppression and maintained by a

conspiracy among the police. No

examination of

prosecution

documents would hint at that

situation. The accused's side of the

case will not be presented because

it is unlikely that he will be asked

for his opinion! Nonetheless, pro-

vision is made in the Act for the

communication of "relevant

information".

In addition, these functions,

involving as they do the con-

sideration of potential evidence, a

finding of fact that such evidence

is admissible and sufficient, the

receiving of "relevant information"

and "appropriate" information,

have the odour of a judicial

function. Under section 22 of the

1965 Act, where a treaty contains

prima facia

requirement, the

Court is obliged to decide that

"sufficient evidence" exists. Very

arguably the Attorney-General is

being asked to fulfil the same

judicial function.

Apart from that a proper case for

judicial review might be made. For

example, a person arrested on a

warrant alleging he committed an

offence in the UK, might say that

at the time of the alleged offence

he was in Iran and that therefore

the Attorney-General's decision

was not factually sustainable.

Under Article 30 of the

Constitution the Attorney-General

is the advisor to the Government

"in matters of law and legal

opinion". The State has sole

responsibility for prosecuting

extradition requests through the

Courts and those proceedings are

initiated on the advice of and taken

by the Attorney. Under Article 40.3

the State has an absolute obliga-

tion to respect the constitutional

rights of the citizen and a qualified

duty to protect and defend those

rights. The meaning of the word

"S t a t e" is unclear. There is

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authority for a wide construction.

People (DPP) -v- Madden

the

Court of Criminal Appeal held that

when a Garda failed to inform a

prisoner, who was making a

written confession, that his 48

hour detention had elapsed, this

failure to accord "the Defendant

his right to liberty, should he, the

Defendant, desire to exercise his

rights" amounted to a deliberate

and conscious violation of his

rights. The confession was

excluded and the Defendant

acquitted. On December 14th,

1988 the Attorney-General refused

to initiate extradition proceedings

against Fr. Patrick Ryan. No specific

power is given by legislation to the

Attorney to refuse to prosecute a

request for extradition through the

Courts. In a statement issued that

day

the Attorney referred to the

references to Ryan in British

newspapers "often expressed in

intemperate

language

and

extravagently-worded headlines,

and also assertions of his guilt of

the offences comprised in the

warrants" and to inferences of his

guilt made in the House of

Commons. Those factors would

influence future jurors in Ryan's

case and as "it would not be

possible for a jury to approach the

issue of his guilt or innocence free

from bias" the Attorney refused to

aid the violation of Ryan's right to

a fair trial.

Once the warrant is executed the

accused must be brought before

the District Court

as soon as is

reasonably possible.

Although

the hearing before the District

Court under Part III had been

judicially categorised as "largely

118