The Gazette 1989

GAZETTE

APRIL 1989

the requesting state.

This

should also state the

maximum penalty or the

unexpired

time

sentence.

4. A statement of the relevant

law or a copy of the relevant

enactments.

5. A description of the person

wanted and such other infor-

mation (e.g. fingerprints or

photographs) as will help

establish his identity and

nationality.

6. Any further documents

required by treaty, e.g. under

the Washington Treaty, a

statement of the facts of the

case is required.

7. A copy of the Order applying

Part II to the relevant country

and where there is a treaty,

incorporating its terms.

Defences

The Defences which the District

Court must consider under Part II

of the Act are succinctly set out by

Barrington J. in

State (Gilliland) -v-

Governor of Mountjoy Prison;

"It may not make an extradition

order if the offence alleged is a

political offence or an offence

connected with a political offence,

or if there are substantial grounds

for believing that the request for

extradition for an ordinary criminal

offence has been made for the

purpose of prosecuting or

punishing a person on account of

his race, religion, nationality or

political opinion. Extradition may

not be granted for offences under

military law which are not offences

under ordinary criminal law or for

revenue offences. Extradition may

not be granted where the person

claimed is a citizen of Ireland unless

the relevant Extradition Treaty

otherwise provides, extradition

may not be granted if the offence

for which it is requested is regarded

under the law of the state as having

been committed in the state; or

where a prosecution is pending in

the state against the person clamed

for the offence named; or if final

judgement has been passed in the

state or in a third country upon the

person claimed in respect of the

offence; or if the prosecution is

statute-barred in the requesting or

the requested country; or, in certain

circumstances and in the absence

of certain assurances, if the

offence charged carries the death

penalty in the requesting country.

Again extradition is not to be

granted unless provision is made by

the law of the requesting country

or by the extradition agreement to

observe the rule of specialty.

Finajly, if the relevant extradition

provisions require the production by

the requesting country of evidence

as to the commission by the person

claimed of the offence for which

extradition is requested, extradition

shall not be granted unless suffi-

cient evidence is produced to

satisfy this requirement."

Most of these defences are self-

explanatory. The defence sections

under Part II are contained in

sections 11-22 of the Act and in

Part III they are contained in section

and in section 50 of the Act.

In addition by section 3 of the

Extradition (Amendment) Act

1987, the Minister may apply the

rule of specialty to the UK. We shall

now consider the more important

defences common to both parts.

Political Exemption

Under Part II of the District Court

cannot make an order for extra-

dition

and under Part III the

Minister must order a warrant not

to be endorsed

or on appeal from

the District Court, the High Court

must

quash an order in respect of

a person sought for "a political

offence or an offence connected

with a political offence". Similarly

if extradition for an overtly non

political offence is sought for the

purpose of prosecuting or

punishing the prisoner on account

of his race, religion, nationality or

political opinion, or prejudice will

result to him from any of these

reasons, he may not be

extradited.

This separate aspect of the

political exemption remains

untarnished by what follows, but in

contrast to the other aspects of the

defence it has never been accepted

by any Court.

The burden of proving these

defences is on the accused.

Three propositions may be

tentatively stated:

1. The political offence exemption

does not apply to certain offences.

Even up to 1987 the killing, or

attempted killing, of a Head of

State or a member of his family

were excluded from the defence.

With the coming into force of the

Extradition (European Convention

on the Prevention of Terrorism) Act

1987, which automatically applies

to requests from the UK and can be

applied, by Ministerial Order, to

other countries, whether they are

party to the Convention or not,

most serious offences of a terrorist

type are excluded

or can be

excluded.

Thus hijacking type

offences relating to aircraft, serious

attacks on or attempts to kidnap

internationally protected persons,

serious false imprisonment and an

offence involving the use of an

explosive or an automatic firearm

where persons are endangered, are

no longer subject to the political

offence

exemption.

Their

accomplices are similarly excluded

and and attempts to commit those

offences are encompassed in their

definition.

In addition a unique

discretionary element is introduced

by section 4 of the 1987 Act where

the Court or the Minister is con-

sidering a serious offence involving

an act of violence against the life,

physical integrity or liberty of a

person, or an act against property

which created a collective danger

for persons, can regard those acts

as being outside the defence on

considering the danger the acts

created, their effect on persons

foreign from its motives and

whether any cruel or vicious means

were used in its commission.

Under section 6 of the 1987 Act

where an application for extradition

in respect of any of those offences

is refused, the DPP has the option

of trying the accused in the State

and may commence those

proceedings before such a refusal

if it appears likely.

It was once thought that Article

29.3 of the Constitution prohibited

the extradition of political

offenders,

but this view has not

been litigated. In any event the

definition of a political offence will

now almost inevitably coincide

with the principles set out in

section 3 and section 4 of the 1987

Act.

2. Because all acts of the

Oireachtas are subject to the Cons-

titution and, if possible, must be

given a Constitutional inter-

pretation,

the political exemption

will not be construed "as having

the intention to grant immunity

from extradition to a person

charged with an offence the

admitted purpose of which is to

further or facilitate the overthrow

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