138 / 482
GAZETTE
APRIL 1989
the accused to remain mute leaves
only one finding open.
5
Point of Departure
If the District Justice is satisfied
with the evidence offered on behalf
of the State, and no defence
evidence has been offered to rebut
it on the balance of probabilities, he
should, before making an order,
hear the accused on how he
wishes to travel from the State
1
.
The Justice should specify a
particular place as that point of
departure; merely to specify
"Dublin" is insufficient.
2
The
accused should be informed of his
right to apply to the High Court
under sectin 50 or to seek an order
of
Habeas Corpus.
3
Part 2 of this article will be
published in the May Gazette.
FOOTNOTES
Two sections of this article were originally
prepared for the Criminal Law Journal (U.K.),
and first published there in 1989.
Introduction
1. In this Article the 1965 Extradition Act
is referred to as "the A c t" and the
reference to a section is, unless
otherwise stated, to a section of that
Act. The Extradition (European
Convention on the Suppression of
Terrorism) Act 1987 is referred to as the
1987 Act. The Extradition (Amend-
ment) Act 1987 is given its proper title
2. Pursuant to section 8 of the Act, a full
list is given in Humphries - An Index
to the Irish Statutory Instruments, at
846-848.
3. The 1965 Act, the 1987 Act and the
Extradition (Amendment) Act 1987.
4. The list of offences where the State has
extra-terratorial jurisdiction is now quite
vast; see Ryan and Magee - the Irish
Criminal Process, p. 2 5 - 2 9, the
Criminal Law (Jurisdiction) Act 1976,
the Air Navigation and Transport Acts
1973 and 1975 and the Extradition Act
1987, section 5.
5. Section 9, section 47.
6. The State can require a
prima facie
case
under treaty; section 22.
7. The main provisions are - Part II:
section 26, section 37; Part III; section
51, section 54, section 55 (as amended
by section 2 of the Extradition
(Amendment) Act 1987).
8. Considerable assistance can be had
with these cases from Forde - Extra-
dition Law in Ireland, Dublin 1988.
United Kingdom
1. Or Deputy, or Assistant Commissioner,
who must apply his mind to the con-
ditions for endorsing it under
section 43. The emergency warrant
procedures contained in section 49.
2. Section 44A(1) and section 44D, as
inserted by section 2 of the Extradition
(Amendment) Act 1987.
3. Section 44B as inserted by section 2 of
the Extradition (Amendment) Act 1987.
4. In any proceedings under Part III, it is
presumed by section 44C, that the
Attorney-General did not so direct; see
further section 55(3) as inserted by
section 2(1)(c) of the Extradition
(Amendment) Act 1987.
5. The 1965 Act commenced by SI 161
of 1965 and the Backing of Warrants
(Republic of Ireland) Act 1965, as
^ commenced by SI 1965 No. 1850.
6. Found to be unconstitutional because
they allowed the immediate execution
of warrants and excluded the possibility
of a
Habeas Corpus
application:
State
(Quinn) -v- Ryan
[1965) IR 70.
7. And did so on May 2nd, 1966.
8. Unless the treaty requires a
prima facie
case, the Act does not require one to
be made out; section 22.
9. Paul O'Higgins, 15 ICLQ (1966) 369,
391.
10. Section 55, and see section 7 of the
United Kingdom Act;
Keane -v-
Governor of Brixton Prisonl
1972] AC
204.
11. Section 44, as amended by section 8
of the 1987 Act and section 50 (Part III)
and section 11 (Part II) as limited by
section 3 and section 4 of the 1987
Act. Note the Act applies automatically
to the UK but requires an order to apply
as to any other country.
12. It may be that the Act is attempting to
distinguish between sufficient evidence
to found an intention to prosecute and
sufficient evidence to prosecute. Were
that to be so the word "information"
should have replaced the word "evidence".
13. Section 4 of the Extradition (Amend-
ment) Act 1987. I find it impossible to
say what this section means.
14. Article 37 of the Constitution expressly
forbids the exercise, in criminal matters,
of limited powers and functions of a
judicial nature, by persons who are not
judges;
the State (Clarke) -v- Roche
[1986] IR 635; [1987] ILRM 309 and
the 1987 Supplement to Kelly - The
Irish Constitution, p. 51-54.
15. On this point see Hogan's commentary
on the Act in ICLSA 87/25-01.
16. [1977] IR 336.
17. See the full text of the statement as
published in the
Irish Times
of
December 14th, 1988.
18. The powers of Peace Commissioners
under the Act are constitutionally
suspect having regard to Article 37; see
State (Lynch) -v- Ballagh[
1986] IR 203;
[1987] ILMR 65.
19.
Dunne -v- Clinton
[1930] IR 336 and
unreported.
20. Barrington J. in
State (Gil/Hand) -v-
Governor of Mountjoy Prison
[1986]
ILRM 381 at 384.
Arrest
1. Section 43.
2. Per Barrington J. in
The State (Gilliland)
-v- Governor of Mountjoy Prison
[1986]
ILRM 381 at 348.
3. Per Barrington J. in
The State
(McFadden) -v- Governor of Mountjoy
Prison
[1981 ] ILRM 133 at 116; see also
Walsh J. in
State (Holmes) -v- Furlong
[1967] IR at 210.
4. Section 48.
5.
The People (AG) -v- O'Brien
[1965] IR
142.
6.
The People (DPP) -v- Madden
[1977] IR
336.
7. As Egan J. found;
State (Trimbole) -v-
Governor of Mountjoy Prison
[1985]
ILRM 465.
8. Per Barrington J. in
The State
(McFadden) -v- Governor of Mountjoy
Prison
[1981] ILRM 113 at 118.
9. [1930] IR 336.
10.
The Irish Times,
March 24, 1986.
Under the 1987 Act, section 6(3)(c),
the DPP may commence a prosecution
because of a likelihood that an extra-
dition application will be refused.
11. Supreme Court unreported, 11 May 1988.
12. Section 45(1).
13. State (McFadden) -v- Governor of
Mountjoy Prison
[1981] ILRM 113.
14.
McMahon -v- McDonald,
Barrington J.
unreported 3 May 1988, p. 28 and
DPP
-v- Corrigan
[1986] IR 290.
15.
The People (DPP) -v- Nicholas Kehoe
[1985] IR 444. A point as to an invalid
arrest should be taken at the first
opportunity.
The Validity of tha Warrant and
Associated Documentation
1. Section 54(1).
2. Section 54(1).
3. Section 54(2).
4. Section 51, Section 54(3), Section
55(1)(b).
5. Per Walsh J. in
The State (Furlong) -v-
Kelly
[1971] IR 132 at 143.
6. Henchy J. in
Gillespie -v- Attorney
General
[1976] IR 233 at 236.
7. High Court unreported, Barrington J.,
3 May 1988, Supreme Court unreported,
27 July 1988 (impromptu judgment).
8. By section 55 as amended by section
2 of the Extradition (Amendment) Act
1987.
9. Otherwise the presumptions under
section 55(1) will be simply rebuted.
10. Section 43.
11. Section 43, section 54(1), section
55(1). A judicial authority can be a
Justice of the Peace;
Russell -v-
Fanning
[1988] ILRM 333.
12. Section 55(1)(a).
13. Section 55(1)(a).
14.
State (Furlong) -v- Kelly
[1971 ] IR 132,
see particularly Walsh J. at 143; this is
necessary for the purpose of testing
correspondence though an affidavit can
fulfill the same function.
15. Section 54(1), section 55 (1)(a).
16. Section 54(2) and (3), section 55(1)(c).
17. Section 54(2).
18. This apparently was the problem before
District Justice Conellan in the
Glenholmes case, see
The Irish Times
March 24 and 25, 1986.
19. Section 55(1).
Correspondence
1. Section 47(2).
2.
State (Furlong) -v- Kelly
[1971 ] IR 132,
per Walsh J. at 142, as a result of
which Form 15 was introduced by SI
275 of 1971. This requirement is not
to be read into Part II;
State (Gilliland)
-v- Governor of Mountjoy Prison
[1986]
ILRM 381 387. See also
Wyatt -v-
McLoughlin
[1974] IR 378 (failure to
state the corresponding offence does
not invalidate the order).
3.
Mulloy -v- Sheehan
[1978] IR 438.
4.
State (Furlong) -v- Kelly
[1971] IR 132
at 143; the affidavit method is rarely
used as it is not a document the validity
of which is presumed under the Act.
124