313 / 322
GAZETTE
JULY / AUGUST 1984
Solicitor, on behalf of the D.P.P. applied
to have the summons against Collins
withdrawn. This application was
opposed by Garda O'Brien's Solicitor.
The District Justice refused the applica-
tion, convicted Collins, and then
dismissed the charge against Garda
O'Brien. Both Collins and the D.P.P.
sought and were granted conditional
Orders of Certiorari. The applications to
make the conditional Orders absolute
were heard together. The main point at
issue was whether a District Justice had
jurisdiction to hear a Summons brought
by and in the name of a Garda at State
expense after the D.P.P. had requested
that such summons be withdrawn.
HELD: that the District Justice had
such jurisdiction. The evidence indicated
that Garda O'Brien had never been
instructed to withdraw the complaint.
Furthermore, it appeared that in relation
to this summons, the matters of investi-
gation, report, decision to prosecute, the
making of the complaint to the District
Justice, the issuing of and service of the
summons and the assembly and presenta-
tion of the evidence in the District Court
were all matters dealt with by the Garda
Siochana in a manner which did not
require nor in fact involve any reference
to the D. P. P. Finally, the evidence did not
show that the D.P.P. had done anything
which could be identified as "taking
over" the conduct of the case. A Garda is
entitled to make and prosecute in his own
name as common informer, a complaint
alleging a minor offence in the District
Court. The mere fact that he is a Garda
and thus acting at State expense does not
automatically give the D.P.P. the right to
intervene at any stage and withdraw the
complaint. In making the complaint as
common informer, a Garda, like any
other common informer, is exercising a
common law right of access to the Courts.
Such right of access to the Courts ought
not to be interfered with in the absence of
a clear statutory mandate. The fact that
the Garda may be an "official" as
opposed to an "unofficial" common
informer is irrelevant. The conditional
Orders were discharged.
The State (Michael Collins)
-v-
District
Justice Ruane and The State (D.P.P.)
-v-
District Justice Ruane - High Court
(Gannon, J.), 8 July. 1983 - unreported.
Michael Staines
EXTRADITION
Warrant — Extradition Act 1965 Section
50 (2) — the mere fact that ofTences such as
robbery and unlawful possession of fire
arms are carried out by paramilitary
groups claiming political objectives does
not of itself provide sufficient cogent
evidence to constitute those offences
political offences or ofTences connected
with political ofTences and in the case of
offences not of their nature political the
onus rests on the person named in the
warrant to satisfy the Court that the
ofTence is a political offence or an offence
connected with a political offence.
On 31 March, 1983, the District Court
made an Order under Section 47 of the
Extradition Act 1965 for the delivery of
the Plaintiff to the custody of the R.U.C.
on foot of a warrant issued in Northern
Ireland, the offence specified being his
escape from custody while awaiting trial
on a criminal charge in March 1975. The
proceedings, the subject of this decision,
commenced by Special Summons in the
High Court on 14 April, 1983 and the
Plaintiff sought an Order of Habeas
Corpus and in the alternative an Order
for his release under Section 50 of the
1965 Act. The Plaintiffs Affidavits
established he was tried at Belfast City
Commission before a Judge and Jury in
1973 on four counts of robbery and
unlawful possession of a fire arm and was
found guilty and received eight years
imp r i s onment and three years
imprisonment for contempt of Court.
While in Long Kesh Prison he unsuccess-
fully attempted to escape and was
subsequently charged with attempting to
escape from lawful custody. Pursuant to
that charge he was brought to the
Courthouse at Trevor Hill, Newry, on 10
March, 1975 and while there escaped with
11 others. The warrant referred to in these
proceedings related to this escape.
Affidavits further stated that the robbery
of which he was found guilty was carried
out by order of the Irish Republican
Army (of which he was then a member) to
raise funds for the campaign for the
liberation of Northern Ireland from
British Rule and in Long Kesh he was
confined to the area in the prison set aside
for I.R.A. members convicted of political
offences and offences connected
therewith. His escape from custody at
Newry was to enable him to continue the
struggle for liberation of the Six
Counties. It was submitted that the
offence to which the warrant related
being the escape from Newry Courthouse
was a political offence within the meaning
of Section 50(2)(a)(i) of the 1965 Act and
that there were substantial reasons for
believing that the Plaintiff, if extradited,
would be prosecuted for a political
offence or an offence connected with a
political offence, i.e., attempted escape
from lawful custody in Long Kesh prison
and detained for political offences, i.e.,
robbery and unlawful possession of a fire
arm and the Defendants submitted that
there was not sufficient evidence for the
Court to so find.
HELD in dismissing the claim:
(a) Section 50 is a mandatory provision
and if the opinion is formed referred
to in sub-section 2 the person named
in the warrant must be released
(Bourke
-v-
A.G.
[1972] I.R. 36).
(b) "Political Offence" in the Section is
to be equated with the expression
"Offence of a Political Character" in
Section 3 of the Extradition Act 1870
and accordingly the authorities here
and elsewhere are relevant.
(c) "Offence connected with a political
offence" within the meaning of
Section 50(2) need not itself be an
"offence of a political character" or
a "political offence".
(d) It is clear that the Courts here and in
Britain have been careful to avoid
attempting an exhaustive definition
of the expression "offence of a
political character" in the Act of
1870 and "political offence" in the
Act of 1965.
(e) The distinction between "purely"
political offences which of their very
nature are political, e.g., treason,
espionage and "relative" political
offences, e.g., murder committed in
the course of rebellion as enunciated
by O'Dalaigh C.J. in
Bourke's
case
page 61 was accepted and the
offences in the present case were
deemed "relative" political offences
and as such the onus is placed on the
person named in the warrant to
satisfy the Court that the offence is
either "a political offence" or "an
offence connected with a political
offence" (
McGlinchey
-v-
Wren
[1983] ILRM 169 at page 172).
(0 The mere fact that offences such as
robbery and unlawful possession of
firearms were carried out by para-
military groups claiming to have
political objectives is not sufficient
of itself to render them political in
character. There must be clear and
cogent evidence to support such a
conclusion which was absent in this
case. The Court in considering
whether a particular offence is a
political offence must have regard to
the circumstances existing at the
time that expression falls to be
considered. There was nothing in the
Affidavits to indicate that the
Deponent himself believed that such
activities would in fact bring about
the claimed political objectives of
the organisation of which he was
then a member although the motive
of a perpetrator of an allegedly
political crime must always be of
importance in determining whether
the crime was in fact political in its
nature.
(g) The offences which gave rise to the
Plaintiff's imprisonment were
committed over ten years ago, whilst
there was nothing to suggest
inaction on the part of the
authorities, even if there were, this in
itself would not be a ground on
which a Court would order release
(see
O'Hanion
-v-
Cleming
[1982]
ILRM 69).
Philip James McMahon
-v-
Governor of
Mountjoy prison and David Leary - High
Court (per Keane J.), 19 August. 1983 -
unreported.
Kenneth Morris
XI