The Gazette 1989

GAZETTE

APRIL 1989

Ireland, unless in addition the

receiver knew the goods were

stolen or otherwise feloniously

obtained.

The recent relaxation

by the House of Lords of the

definition of recklessness to an

approximation of negligence

and

the unique position in the common

law world of some of our defences

to murder

as well as the obvious

reforms of English law assisting the

prosecution,

leads the writer to

the view that the correspondence

between Irish and English criminal

law is now minimal. However, the

challenges mounted in the cases

noted above have been ineffective

due to the absence of an expert for

the defence to give evidence as to

what are the precise elements of

the offence for which the fugitive

is sought and as to how those

elements differ from their UK

counterpart. It remains to be seen

what the High Court or Supreme

Court would do in the event of the

gulf between Irish and English law

being clearly enunciated to them.

Identity

Identity is a proof common to

Part II and Part III of the Act. Under

Part III the District Court can only

make an order for delivery into the

custody of a member of the UK

police force "where a person

named or described in a warrant is

before" the Court.

Extradition

under Part II is a formal order by the

Minister

made after committal by

the District Court,

the Justice

being satisfied that the arrest

warrant issued by him under

section 26 or section 27 of the Act

has been executed against a person

before the Court whose extradition

"has been duly requested".

Following the pattern of the Act,

Part III places less formal emphasis

on establishing identity than does

Part II.

The documents supporting a non

United Kingdom request must

include "as accurate a description

as possible of the person claimed,

together with any other information

which will help to establish his

identity and nationality",

whereas

no such requirement is made under

Part III. Instead the endorsed

warrant, being the document upon

which the District Court acts under

section 47 of the Act allows only

for a name or description. In

practice a name and current

address (e.g. Mountjoy Prison) is

usually given together with former

addresses. There is no reason why

a date of birth should not be

included. A Part II description is

made Evidence by section 37 of

the Act. Since the warrant under

Part III will include a name or

description then that name or

description is evidence of identity

admitted by section 55(1)(a). In

both cases the task of the State is

to match whatever name and

description is given with the name

and description of the accused. A

photograph or fingerprint can be

properly admitted under Part II if

signed and certified under

section 37, but formal proof is

required for anything other than a

name or description in a warrant

under Part III. Probably this

descrepancy is due to geographical

proximity making it easier to

produce a UK policeman to identify

the accused or his fingerprints, or

for a Garda to match up his name

and address with those on the

warrant. Nonetheless, the anomaly

can cause confusion.

In the case of

Patrick McVeigh

the respondent was named and his

current former addresses were

given in the warrants. His current

address and his name were proved

by the Deputy Governor of

Portlaoise Prison who stated that

he was the only person of that

name in the Institution, and his

name and former address were

proved by several Garda witnesses,

to whom the prisoner had given

them.

This evidence was

unchallenged on behalf of the

respondent who did not give

evidence to contradict it or deny

that identity. District Justice Ruane

dismissed the application because

there was no member of the

requesting police authority in Court

to identify the prisoner. This has

never been a requirement under the

Act, the express provisions of

which dispense with such

formalism and allow foreign

documents and their content to be

admitted in proof of all that is

required for an order to be made.

Nor has the calling of a member of

a foreign police force been the

practice in extradition cases

and

Saurin -v- Ó hUadhaigh

Finlay

P. was satisfied that there was

evidence of identity before the

District Court when a Detective

Superintendent referred to a photo-

graph of the accused in the English

Police Gazette. In England evidence

that the person arrested never

protested that he was not the

person accused was held to be

acceptable evidence as to

identity

The Burden of Proof end the

Burden of Adducing Evidence

There is no recorded decision as to

whether the State must prove all

these matters as a probability or

beyond reasonable doubt.

person extradited will have to face

criminal proceedings but the

extradition itself merely determines

if the person named in the warrant

should stand trial elsewhere. Even

prima facia

case requirement

would not impose a beyond reason-

able doubt standard on a

requesting State with regard to the

evidence against the accused and

there seems no reason why the

elements imposed by the Act

should have a higher standard of

proof than the balance of

probability. The state must prove all

the elements of its own case, but

matters of defence, for example,

whether the defendants funda-

mental constitutional rights would

be imperilled in the requesting

State or whether the political

exception applies, must be proved

by the defence as a probability.

There are two aspects of the

burden of proof; the burden of

adducing evidence and the latter

burden of proving one's case

according the standard set,

whether probability or beyond

reasonable doubt. The latter is the

final question of fact for the District

Justice "is there sufficient

evidence here for me to be satisfied

that the man in the dock is the man

described in the warrant, that the

defence have not shown good

reason for me to act on the

documents before me and that the

offences are corresponding?" The

burden of adducing evidence falls

on a party challenging a case to

lead some evidence supporting that

challenge upon which the District

Justice might see fit to displace the

State's case.

The challenge may

come from cross examination, from

a prosecution witness stating the

opposite to the State case or by the

accused giving evidence, but the

challenge must be there and it is

not legally there unless based on

some evidence.

For all the

evidence to point one way and for

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