The Gazette 1989

GAZETTE

APRIL 1989

differentiate him from other

escapees where the State did not

seek to challenge the validity of the

political exception, would amount

to an unconstitutional act of

discrimination.

Specialty

The defence of specialty applies

only to cases of extradition under

Part II of the Act.

The Minister

now has the power to apply the rule

of specialty and the rule against re-

extradition to Part III of the Act, but

has not yet done so.

The

practitioner in raising the defence

should seek in the documents

provision for the rule against

specialty made binding either in the

clause of a treaty or in the

statement of law of the requesting

country.

Thereafter it is a matter

for the Courts of the requesting

state to apply the rule of specialty

and the District Court here will have

fulfilled its function under the Act

by specifying in its orders the

foreign offences for which it is

granting extradition.

Conclusion

Extradition is an absolute necessity

in fostering good international

relations between neighbouring

states. The alternative is the

dishonest turning of a blind eye to

the distress caused to citizens of

other countries by fugitives within

our borders. In cases to which the

1987 Act applies, the State can

respond by prosecuting the alleged

offender, but only where an extra-

dition application has failed or is

likely to fail.

Independence and the develop-

ment of constitutional law have

caused a huge rift to develop

between the Irish and the British

legal systems. A country which has

fought so hard for its independence

is likely to have done so because of

a fundamental divergence in

approach on many major problems

from its former rulers. Anyone who

has practised in the Criminal Courts

is aware of the difficulties inherent

in convincing an Irish jury of proof

beyond a reasonable doubt. The

writer's limited experience with the

Courts of the UK leads him to the

view that the difficulty is not so

severe in that jurisdiction. Perhaps

citizens of the UK have a greater

respect for the institutions of

government and have more trust in

their public servants. The greater

ease with which guilty verdicts are

obtained in that jurisdiction does

not apply only in cases where Irish

people are charged with terrorist

type offences. In the writer's view

it applies all the way across the

spectrum of criminal offences,

irrespective of the nationality or

race of the defendant. It would be

foolish, however, to ignore the very

real danger of prejudice or, perhaps,

the more likely instinct of a people

under attack to rally behind their

leaders and institutions. That

instinct is not specifically British in

character. The Irish people share

this fundamental human quality,

albeit

tinged

with

native

scepticism.

The Criminal Law (Jurisdiction)

Act 1976 gives the authorities an

option of prosecuting in respect of

offences in Northern Ireland.

Similar provisions might usefully be

extended to the United Kingdom.

As stated at the outset of this

article, extradition is not a matter of

discretion and the writer can see no

legal sense in giving a Court a

decision between extradition to a

foreign state and trial within the

jurisdiction. It is impossible to

imagine the Court exercising its

discretion on grounds other than

those already contained in the Act

relating to possible prejudice as a

result of race, nationality or political

opinion. The Courts are, however,

involved only in extradition cases to

ensure the principles of legality and

constitutional justice. While their

powers are statute given they need

not be invoked. At all stages of the

procedure the Minister for Justice

retains a power to act. He may

quash a warrant or an order of

extradition but he is, of course,

obliged to act legally and within the

framework of the Act. Furthermore,

whether the extradition of a

fugitive is sought depends on a

political decision made in the UK.

Trial within the jurisdiction for

extra terratorial offences is a real

alternative to extradition. It may,

however, be seen in the extraditing

state as a slight to their system of

justice. Political consent would

make such an alternative possible,

but it is dependent to such a degree

on the realisation by Irish politicians

of the harm that failure to extradite

fugitives may cause to the fabric of

our society as well as that of the

requesting state, and upon a

realisation by the British authorities

that even the best system of justice

is subject to human prejudices, that

it seems to be improbable.

Practicality is a greater incentive.

Since 1982 up to 70% of extra-

dition requests by the UK in major

terrorist-type offences have failed

due to technical shortcomings in

proofs.

The Criminal Law

(Jurisdiction) Act 1976 has, in the

cases taken under it, resulted in a

guilty verdict in 14 of 15 cases.

The argument for politicians to

make greater use of the Act and to

extend its operation to Great Britain

is compelling.

Footnotes

Extradition to Countries other than the

United Kingdom

All the orders made under this section

are to be found in Humphries - An

Doyle Court Reporters

Court and Conference Verbatim Reporting

2, Arran Quay, Dublin 7.

Tel: 7 2 2 8 3 3 or 8 6 2 0 9 7

(After Hours)

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