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GAZETTE
SEPTEMBER
Recent
Irish
Cases
EXTRADITION — POLITICAL
OFFENCE
Onus of proof that offence is a
political ofTence not discharged by
Plaintiff.
Dominic McGlinchey had been
arrested in the State on foot of a Northern
Ireland warrant alleging that he had com-
mitted murder in that jurisdiction. An
Extradition Order was duly made in the
District Court. McGlinchey then
applied to the High Court under the
provisions of Section 50 of the Extradition
Act 1965 seeking a discharge of that
Order. He claimed as follows:
1. That the offence was a political
offence, or an offence connected with a
political offence.
2. That if removed to Northern Ireland,
he would be prosecuted or detained for
a political offence or an offence con-
nected with a political offence.
Either of these grounds, if accepted by
the High Court, would have been
sufficient to discharge the District Court
Order.
'McGlinchey claimed that at the time of
the murder, he was engaged in activities in
Northern Ireland on behalf of the Irish
Republican Army, and that responsibility
for the murder had been claimed by that
organisation. His application was refused
in the High Court, and he appealed to the
Supreme Court against this refusal. In the
Supreme Court, it was held as follows:
1. The Extradition Act 1965 does not
define the term "political offence".
The Court, therefore, must form an
opinion on the facts of each particular
case. In this case, the victim of the
murder was an elderly grandmother,
who was shot dead in her own
home.Inthe Supreme Court, McGlinchey had
conceded that the murder could not be
regarded as a political offence, or an
offence connected with a political
offence. The Court therefore found it
unnecessary to demarcate between an
ordinary offence and a "political
offence". O'Higgins C. J. in delivering
the Judgement did state, however ...
"... it should not be deduced that if
the victim were someone other than a
civilian who was killed or injured as a
result of violent criminal conduct
chosen in lieu of what would fall
directly or indirectly within the
ordinary scope of political activity, the
offence would necessarily be classified
as a political offence or an offence con-
nected with a political offence. The
judicial authorities on the scope of such
offences have in many respects been
rendered obsolete by the fact that
modern terrorist violence, whether
undertaken by military or paramilitary
organisatidns, or by individuals or
groups of individuals is often the anti-
thesis of what could reasonably be
regarded as political, either in itself or
in its connections."
In the present case, the Court held
that the offence was not a political
offence, or an offence connected with a
political offence. The question
depended "on whether (the) particular
circumstances showed that the person
charged was at the relevant time
engaged either directly or indirectly, in
what reasonable, civilised people
would regard as political activity".
2. McGlinchey claimed that if he was
removed to Northern Ireland, he
would be prosecuted for political
offences or offences connected there-
with. He referred to the fact that
charges had been brought against
another man for refusal to give infor-
mation concerning McGlinchey's
activities and involvement in various
firearms offences, and in another
murder offence. The Court rejected
this part of his claim. No evidence had
been adduced in respect of these
offences to show that they arose either
directly or indirectly out of political
activity. The Court was not prepared
to assume that because of the existence
of widespread violence organised by
paramilitary groups in Northern
Ireland that any charge associated with
terrorist activities should be regarded
as concerning a political offence. The
Court continued "The excusing
per se
of murder, and, of offences involving
violence and the infliction of human
suffering done by, or at the behest of,
self-ordained arbiters, is the very anti-
thesis of the ordinances of Christianity
and civilisation and of the basic
requirements of political activity."
3. The appellant, therefore, failed to
discharge the onus on him. The appeal
was therefore dismissed.
McGlinchey v. Wren.
Supreme Court
(per O'Higgins C.J., Henchy J., Griffin
J.) Judgement of O'Higgins C.J., Nem.
Diss, 7th December 1982 — unreported.
Michael Staines
PLANNING —
Local Government (Planning and
Development) Acts 1963-1976 —
Failure of Planning Authority to give
notice of decision — Liability of
Planning Authority in negligence.
The Plaintiff lodged an application
with the Defendants for planning
permission for a development consisting
of 18 dwellinghouses on a site at Rosleven,
Co. Clare on 6 October 1978. On 13
October 1978 particulars of the proposed
public lighting for the development were
furnished to the Defendant. On 29
November 1978 the application was
amended by excluding one site but this
did not affect the application with regard
to the remaining sites. The Defendants
did not issue any notification of decision
either to grant or to refuse permission
until 28 February 1979 when they issued a
notification of decision to grant per-
mission.
The Court held that the date of the
application was 6 October 1978 and that
the two month period within which the
Plaintiff should have been given notice by
the planning authority of their decision,
expired on 6 December 1978 and that the
Plaintiff was entitled to a declaration for a
decision to grant permission which should
be regarded as having been given on the
last day of the period of two months from 6
October 1978 and to a declaration that the
purported notification of a decision to
grant permission subject to certain condi-
tions dated 28 February 1979 was null and
void. The Court further held that the pro-
visions of Sub Section 9 of Section 26 of
the 1963 Act being mandatory, a right to
damages accrued to the PlaintifTin respect
of any loss which the Plaintiff suffered as a
result of failure of the Defendant to make
the decision on the application within the
prescribed period. The Court considered
that insufficient evidence of the amount of
the loss had been adduced by the Plaintiff
and awarded the nominal sum of £500
damages.
Thomas G. O'Neill v. Clare County
Council.
The High court (per McWilliam
J.) 18 May 1982 — unreported.
John F. Buckley
ROAD TRAFFIC —
V a l i d i t y of D i s t r i c t Co u rt
Summonses following Submission by
Defendant to Jurisdiction of Court.
On 13 July 1979 the Director of Public
Prosecutions took out two Summonses in
the District Court against the Defendant.
The first charged him with refusing on 2
June 1979 to provide a specimen of his
breath, contrary to Section 12(2) of the
Road Traffic (Amendment) Act, 1978.
The second charged him with failing or