The Gazette 1989

GAZETTE

MARCH 1989

formal",

there are, it is sub-

mitted, four substantial points it

can consider: arrest, the docu-

ments supporting the request,

correspondence of offences and

identity.

Arrest

A person is brought before the

District Court, under Part III,

pursuant to an endorsed warrant.

The Court, under this Part, is not

entitled to consider any defence

under section 50 and "the

substantial hearing on the merits (if

there is to be one) takes place for

the first time in the High Court".

The proofs are:

1. The validity of the warrant

and associated documen-

tation.

2. That the person who has

been arrested is, in fact, the

person named or described in

the warrant.

3. That the offence described in

the warrant corresponds with

any offence under the law of

the State which is an

indictable offence or if

punishable, on summary

conviction, by imprisonment

for a maximum period of at

least six months.

It was possibly never intended

that the District Justice should

consider the validity of the

accused's detantion. The accused

was to be informed of his right to

challenge the legality of his

detention in the High Court either

Habeas Corpus

proceedings or

by raising defences under

section 50.

In 1965 a challenge

to the legality of his detention

would have been a less complex

and fruitful matter than today, as

the duty to ensure that the

Executive did not obtain the

planned results of a deliberate and

conscious violation of a citizen's

constitutional rights received its

first mention in the Irish Reports of

that year

and the full effect of

that principle was realised only in

1977.» Thus in 1985 when Robert

Trimbole was arrested under

section 30 of the Offences Against

the State Act 1939, on a pretence

of the possession of a firearm

and, on being discharged by the

High Court, was rearrested for

extradition under Part II, it was

hardly foreseeable from a 1965

perspective that the entire

procedure, as a product of the initial

illegal arrest, would be struck down

by the High and Supreme Court as

a violation of his right to personal

liberty. Indeed the entire legal

climate has changed and

Habeas

Corpus

is now regarded "as a

remedy for unfair procedures and

not as a substitute for fair

procedures".

Dunne -v- Clinton

imposes on

Justices a duty to discharge a

prisoner arrested improperly in the

ordinary course of events, for

example without reasonable

suspicion or for questioning. It

surely follows that a District

Justice in an extradition case can

enquire, if the defence raise the

point and establish evidence to

ground it, into a deliberate and

conscious violation of the

accused's constitutional right to

liberty. As a matter of practice, this

does happen in the District Court.

On 22 March 1986, for example,

Evelyne

Gienhoimes

was released

by District Justice Conellan

because the documents supporting

the warrant for her arrest were

defective. A telephone call was

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