The Gazette 1989

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".

The

Glenholmes

case would not

be decided the same way today. In

Kane , -v- The Governor of

Mountjoy

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

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.

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.

A Garda may also validly arrest

someone already under arrest.

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.

(b) An Affidavit verifying the

signature on the warrant.

(c) A certificate that the offence

charged is indictable and if

also summary carries a

maximum sentence of at least

six months.

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.

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.

Once the defence

wish to challenge the validity of the

issue of the warrants by calling

expert evidence then it must be

received.

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

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.

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.

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.

(b) That the warrant was issued

by a judicial authority.

(c) The judicial authority operates

in a place specified under

section 41 of the Act.

(d) That the warrant was duly

signed.

(e) Probably it should contain the

particulars to be expected of

a warrant; date and place of

commission, short particulars

of the offence

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.

(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

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