The Gazette 1989

GAZETTE

APRIL 1989

by violence of the Constitution and

the organs of the State established

thereby."

The Supreme Court, in

1985, adopted this principle in

Quinn -v- Wren

where they were

faced with an affidavit alleging that

£600 had been obtained by false

pretences in London, by the

defendant, in order to further the

aims of the INLA to violently

establish a 32-county workers

republic. This amounted to a

request to the Court to extend legal

shelter to those who would, by

force of arms, destroy the Cons-

titution. Not surprisingly that

request was refused. In the High

Court an applicant called Robert

Russell convicted of the attempted

murder of an RUC officer, who had

escaped from the Maze Prison,

then entered a qualifying affidavit

to his section 50 application

stating that the IRA, to which he

belonged, did not intend to over-

throw the Constitution but to use

force in Northern Ireland to end

British rule there.

O'Hanlon J.

and the Supreme Court by a 3 to

2 majority interpreted the principle

in Quinn's case as extending to any

usurpation of the functions of

Government; since the Govern-

ment's policy was to reintegrate

the National Territory peacefully,

the Court would not constitution-

ally offer protection to members of

an organisation differing from that

policy.

The fierce dissent of

Hederman and McCarthy JJ. would

not have occurred if the IRA were

proved to have similar motives to

the INLA.

The analysis of the

political motivations of both organi-

sations may await consideration in

a future case.

3. The Courts have not defined

what a political offence or an

offence connected with a political

offence is, but have stated that the

political exemption cannot apply

unless "the person charged was at

the relevant time engaged either

directly or indirectly in what

reasonable civilised people would

regard as political activity".

Each

case must be judged on its own

facts.

Constitutional Protection and

Bad Faith

The extradition procedure exists in

order to secure the capture of a

convicted person due to serve a

sentence or to proceed against a

person accused of a criminal

offence.

Just as, at common law,

it is illegal to arrest for the purpose

of questioning, so under Irish law

persons are not surrendered for the

purpose of interrogation. In

Russell

-v-

Fanning

the Supreme Court

held that if the RUC were operating

a policy of diverting extradited

persons from their Court appear-

ances in order to interrogate them,

extradition should not be ordered.

The closest our law comes to the

requirement of a

prima facie

case

is the principle enunciated in

Russell's case that extradition is

granted only for the purpose of

meeting a case; foreign police

forces are not entitled to seek the

extradition of prisoners in the

expectation that upon their

surrender they may interrogate

them and thereby build such a

case.

The duty of the Courts pursuant

to Article 40.3 to defend and

vindicate the personal rights of the

citizen can clearly only be exercised

within the jurisdiction of the

Courts. But the Courts will not

countenance any procedure,

including extradition, the effect of

which is to set those rights at

nought. Thus, extradition will not

be granted to a requesting juris-

diction which will probably subject

the prisoner to unfair procedures,

assault, torture or inhuman treat-

ment.

Six affidavits by prisoners

in Northern Ireland were filed in the

case of Robert Russell alleging that

after escaping from the Maze

Prison on 25th September 1983

and on being recaptured they were

beaten by prison officers and

subjected to various forms of

inhuman treatment including de-

privation of clothing. In reply, an

affidavit from a Deputy Governor of

that prison assured Russell safe

conduct and went on to depose

that the prisoners in question were

pursuing civil remedies against

prison officers in respect of those

alleged assaults. Because of the

absence of a policy to subvert

constitutional rights on the part of

the authorities in the Maze Prison,

and because a remedy at civil law

was available to the prisoners, it

was held that the defence had not

made out their case as a

probability.

The Fr. Ryan decision by the

Attorney-General

is the only

occasion when it has been

accepted in Ireland that an

James Nash

F.S.S. DÍ

Forensic Document Examiner

and

Handwriting Consultant

38, Monastery Rise,

Clondalkin, Dublin 22.

Telephone: (01) 571323

extradition to England or Northern

Ireland would have the effect of

violating the accused's con-

stitutional rights. As noted above,

that was an instance where the

Attorney-General refused to initiate

extradition proceedings, thus

relieving the accused of the normal

burden of proving, as a probability,

that his constitutional rights would

be infringed in the requesting

jurisdiction. It has been the writer's

experience that cases of possible

jury prejudice, as a result of

unfavourable media comment on

the accused, have been dealt with

here by a suitable adjournment in

order to allow memories to fade.

Perhaps that course was not

suitable in this instance.

Delay and Diacrimination

It is a defence to extradition

pursuant to Part II of the Act that

under Irish law, or under the law of

the requesting state, the time for

taking a prosecution has elapsed.

Extradition, under both Parts, will

be refused if it would be unfair,

invidious or oppressive because of

the efflux of time.

An example of

an invidious situation occurred in

McMahon -v- Leahy,

where

following an escape from the Maze

Prison in 1975, several escapees

had sought refuge in Ireland.

McMahon was one of these.

Several of his colleagues were

sought in extradition proceedings

but all raised the political exception.

Because the Supreme Court only

redefined the nature of a political

offence in 1982

they succeeded.

The proceedings against McMahon

commenced over a year later. The

Supreme Court held that to

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