GAZETTE
APRIL 1989
then made to Dublin, possibly by
pre-arrangement, from London to a
Garda Inspector stating that a
further arrest warrant had been
issued in the UK and requesting her
urgent arrest thereon in Ireland.
District Justice Conellan then
issued an emergency warrant'
under section 49 of the Act. This
was executed some short time
after her release and she was
brought before the Court. Notwith-
standing that the section requires
the person to be remanded for up
to three days to await the arrival of
the warrant from the UK, District
Justice Plunkett embarked on an
issue as to whether the original
release of Ms Glenholmes was
illusory because of a pre-arranged
plan to immediately apply for an
emergency warrant while keeping
the released prisoner under tight
surveillance. The District Justice
decided the issue in favour of the
defence, ruling that the second
arrest was deliberately unlawful
because "the release meant nothing
in the events that followed".
10
The
Glenholmes
case would not
be decided the same way today. In
Kane , -v- The Governor of
Mountjoy
u
the Supreme Court
held that the Gardai were justified
in keeping the applicant under close
surveillance in the expectation of
the arrival of an Extradition
Warrant. Finlay, C. J. further stated
that "the essential feature of
detention in this legal context is
that the detainee is effectively
prevented from going or being
where he wants to go or be and
instead is forced to remain or go
where his jailer wishes him to
remain or go".
A warrant may be executed
anywhere in the State by any
Garda
12
who should read the
warrant to the prisoner and give
him a copy of it. The prisoner
should be asked, on being taken
before a District Justice, if he needs
an adjournment to seek legal
representation.
13
For the purpose
of executing the warrant a Garda
may enter private property and
may, on being refused entry break
an entry using reasonable force.
14
A Garda may also validly arrest
someone already under arrest.
15
The Validity of the Warrant and
Associated Documentation
There are three basic documents
which must be produced before the
District Court to ground an appli-
cation for extradition to the UK.
They are:
(a) A warrant issued by a judicial
authority in the UK.
1
(b) An Affidavit verifying the
signature on the warrant.
2
(c) A certificate that the offence
charged is indictable and if
also summary carries a
maximum sentence of at least
six months.
3
In serious extradition cases the
offences will usually be indictable
only but if an offence is being
proceeded with summarily then
either service of the summons or
breach of a recognisance or bail
bond must also be proved.
4
There are two possible points
that can arise from these docu-
ments (A) that they are invalid
under UK law and (B) that they are
bad on their face. The first is easily
disposed of since Irish Courts have
no competence, in the absence of
expert evidence, in construing
foreign law.
5
Once the defence
wish to challenge the validity of the
issue of the warrants by calling
expert evidence then it must be
received.
6
In its absence, however,
the Court cannot entertain a point
as to whether the warrant was
properly issued or if an immunity
existed in respect of the prosecu-
tion of the person sought. Thus, in
McMahon -v- McDonald
1
the
respondent had been discharged by
the President of the District Court
on warrants relating to the sale of
Irish passports in London because
there was no proof of proper
consent to the institution of pro-
ceedings against him and no
evidence that his diplomatic
immunity from prosecution had
been waived. It was held that both
points could only be ruled on where
expert evidence was produced.
This is so even though the statutes
and treaties grounding the sub-
missions were common to both.
8
Since such evidence of invalidity
under UK law may be given by the
defence it is prudent for the pro-
secution to have their own expert
on that law available to challenge
any evidence that may be given.
9
The documents are proved by
their production to the Court. They
are presumed valid unless the
Court sees good reason to the
contrary. The word that is used in
sec.'^n 54 and section 55 of the
Act is "appearing". There is no
technical question of UK law
involved and nor is there a
requirement for the verifying
affidavit to be sworn as a foreign
affidavit, or for the certificate to be
otherwise authenticated. But any
of these documents may be bad on
its face. Because the only way
something can "appear" from a
document, is that the document
should exhibit the characteristics
and give the information that the
Act requires. The Act seems to
require that it appear:
(a) That the warrant is a warrant
for arrest.
10
(b) That the warrant was issued
by a judicial authority.
11
(c) The judicial authority operates
in a place specified under
section 41 of the Act.
12
(d) That the warrant was duly
signed.
13
(e) Probably it should contain the
particulars to be expected of
a warrant; date and place of
commission, short particulars
of the offence
14
and of the
enactment infringed and a
statement that the judicial
authority is competent and
has power to issue the warrant
in the place where it was
issued.
(f) It should be endorsed for
execution under section 43 of
the Act and if the warrant is
to arrest a convicted person,
should probably specify the
particulars in section 43(3),
ije. the length of the unexpired
position of the sentence.
(g) The verifying affidavit need
simply verify the signature,
usually be exhibiting the
warrant, identifying it and
stating that on the specified
date it was signed by the
judicial authority, the deponent
being present and witnessing
the signature appearing on
the warrant.
(h) The affidavit should be sworn
before a person who states
who and what he is and that
he is authorised to take affi-
davits by the law of the place
where the judicial authority
signing the warrant operates.
15
(i) The affidavit should have the
basic characteristics of an
affidavit; a proper title, a date,
a swearing and identifying
clause, an averment of
knowledge of the facts and a
signature by the deponent
120