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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Lynch v. O'Toole [2003] IESC 44 (24 July 2003)
URL: http://www.bailii.org/ie/cases/IESC/2003/44.html
Cite as: [2003] 3 IR 416, [2004] 1 ILRM 129, [2003] IESC 44

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    THE SUPREME COURT

    Denham J.

    Hardiman J. Appeal No. 175/2003

    McCracken J.

    IN THE MATTER OF AN APPLICATION UNDER

    SECTION 50 OF THE EXTRADITION ACTS 1965-2001

    BETWEEN

    WAYNE PATRICK LYNCH

    APPLICANT/APPELLANT

    AND
    PATRICK O'TOOLE

    RESPONDENT

    JUDICIAL REVIEW Appeal No. 176/2003

    BETWEEN/

    WAYNE PATRICK LYNCH

    APPLICANT/APPELLANT

    AND
    THE ATTORNEY GENERAL AND PATRICK O'TOOLE

    RESPONDENTS

    Appeal No. 157/2003

    IN THE MATTER OF AN APPLICATION UNDER

    SECTION 47 OF THE EXTRADITION ACTS 1965-2001

    BETWEEN/

    THE ATTORNEY GENERAL

    APPLICANT/RESPONDENT

    AND
    WAYNE PATRICK LYNCH

    RESPONDENT/APPELLANT

    Judgments delivered by Denham J & Hardiman J; McCracken J agreed with both judgments
    Judgment delivered on 24th day of July, 2003 by Denham J.

    1. Appeals

    Wayne Patrick Lynch, hereinafter referred to as the applicant, has brought three appeals to this Court, all relate to an extradition application. The first is an appeal from an order of the High Court under s. 50 of the Extradition Act, 1965, as amended; the second is a judicial review; and the third arises from s. 47 of the Extradition Act, 1965, as amended.

    2. Undisputed Facts

    The learned High Court judge found that there were undisputed facts. Thus, the applicant, who was born in Dublin on the 14th March, 1975, was at all times an Irish citizen and domiciled in this country. On the 15th October, 2000 having been in England for a short period of time it is alleged against him that at Stevenage, Hertfordshire, he unlawfully and maliciously wounded one Sayed Nader Seifi with intent to do him grievous bodily harm contrary to s. 18 of the Offences Against the Persons Act, 1861, and secondly on the same occasion that he unlawfully and maliciously wounded the said Mr. Seifi contrary to s. 20 of the Act of 1861. Shortly after the alleged commission of these alleged offences he was arrested and questioned by the police and some hours later he was given station bail, a condition of which compelled him to appear at a later date at the local magistrates court. This he failed to do and a bench warrant was issued for his arrest at some unspecified date. Apparently because of alleged threats to his person the applicant returned to Ireland within a day or two of the 15th October and accordingly he failed to honour his bail conditions. On his return to this jurisdiction he resided with his mother at 4, St. Auden's Terrace, High Street, Dublin 8 which was and is the family home. He stayed at this address until June, 2002 when, for approximately four weeks, he moved with his girlfriend to Ballycullen. Thereafter he resided at 127, Cooley Road, Drimnagh where he was arrested pursuant to the warrants in this case. At all stages he lived openly and whilst at High Street he signed on for certain periods at Bishops Street Labour Exchange and also was in receipt of a rent allowance from the Health Board at Drimnagh. At no time did he return to the United Kingdom or otherwise leave this jurisdiction.

    On the 20th September, 2001 a Justice for the Hertfordshire commission area, being a judicial authority in England and Wales, issued a warrant, identified as "Warrant A", for the applicant. This alleged that on the 15th October, 2000 at Stevenage he committed the s. 18 offence against the said Mr. Seifi and in respect thereof it directed that constables of the Hertfordshire constabulary arrest the applicant and bring him immediately before the magistrates court. A similar warrant, identified as "Warrant B", was issued on the same day in respect of the alleged offence contrary to s. 20 of the 1861 Act.

    On the 3rd October, 2001 these warrants were received in this jurisdiction. On the 8th November the advice of the Attorney General was obtained and on the 15th November these warrants were approved by the Department of Justice. On the 9th September, 2002 the third named respondent in the judicial review proceedings, Assistant Commissioner Patrick O'Toole, endorsed these warrants and they were executed by Sergeant O'Neill on the 1st October, 2002. The applicant's arrest on that occasion was at 127, Cooley Road, Drimnagh, Dublin 12.

    The applicant was involved in two incidents which gave rise to the preferment of criminal charges against him in this jurisdiction. On the 21st May, 2000 in Kilkenny it was alleged that the applicant was in unlawful possession of drugs contrary to s. 3 of the Misuse of Drugs Act, 1977, as amended, and also that he had possession of such drugs for the purpose of sale or supply contrary to s. 15 and s. 27 of that Act. Having failed to attend at the District Court, the resulting bench warrant was executed, in the context of the second set of criminal charges against him, by Sergeant Lyng from Kilkenny Garda station on the 4th October, 2001. Ultimately on the 13th November of 2001 he was sentenced, on a plea, to twelve months on each charge with the entire period thereof being suspended.

    In September, 2001 Detective Garda Philip Rowe, from Harcourt Terrace Garda station, Dublin 2, received a complaint in relation to a stolen cheque where an endeavour to obtain IR£18,700.00 by false pretences had been made at the Bank of Ireland, College Green. Apparently the cheque had been stolen on the 10th September from offices in Merrion Square and had been lodged by the applicant to his own account at College Green some days later. On the 1st October, 2001 Garda Rowe arrested the applicant at 4, St. Auden's Terrace, High Street in respect of the stolen cheque and detained him pursuant to s. 4 of the Criminal Justice Act, 1984. On Harcourt Terrace charge sheet numbers 1531/2001 and 1532/2001 the applicant was charged with intent to defraud the manager of the Bank of Ireland, College Green of IR£18,700.00 by falsely pretending that the subject cheque was good and valid order contrary to common law and, secondly, that he had lodged the stolen cheque knowingly or believing the same to have been stolen contrary to s. 33 of the Larceny Act, 1916, as amended by s. 3 of the Larceny Act, 1990. He was released on station bail and remanded to appear at Court 45 of the Dublin Metropolitan District Court on the 4th October, 2001.

    Between the date of his arrest and the remand date Garda Rowe confirmed what he suspected on the 1st October, namely, that a bench warrant from Kilkenny District Court existed for the accused and accordingly he arranged for Detective Sergeant Jim Lyng to execute the warrant on the 4th October. On that date the applicant was arrested and taken into custody. Consent was forthcoming to independent bail which the applicant took up but only after spending some days in prison.

    Between October, 2001 and February, 2002 the applicant appeared on remand before the District Court on several occasions while the book of evidence was being prepared. Apparently the District judge had refused jurisdiction to deal with the aforesaid charges in the District Court. Ultimately on the 1st February, when the book was still not ready, the District Court struck out the said charges against the applicant. The same were never reactivated, with the Director of Public Prosecutions finally indicating on the 22nd August, 2002 that the applicant should not be recharged for these offences. That information was communicated to Garda Rowe on the 5th September, 2002. On the 1st October, 2002 the warrants from England were executed by Sergeant O'Neill.

    3. Disputed Facts

    In the High Court there were disputed facts. The applicant alleged that in September, 2001 Garda Rowe informed him that the Garda authorities had received from their English counterparts a warrant involving the applicant but that if the applicant furnished certain information to Garda Rowe about any other person or persons involved in the stolen cheque then the English warrant would not be executed. Reference was also made to a warrant from Kilkenny. In response to this conversation the applicant indicated that he would not be able to assist the Garda in implicating any person or persons. He deposed that in reply Garda Rowe said that the applicant would have plenty of time to think about it but that if cooperation was not forthcoming the English warrant would be executed. These facts alleged by the applicant were denied by Garda Rowe. On this issue the learned trial judge held:

    "Having considered the entirety of the evidence, which, as I have previously stated, also included the cross-examination of Mr. Terence Lynch, I have come to the conclusion that the disputed allegations made by the applicant, in all their material and substantive respects, were, on the balance of probabilities, made out and sustained by him. I have so decided not only on an assessment of the witness' individual demeanour and manner in the witness box but also because, as is evident from what is hereinafter summarised, a great deal of what Mr. Lynch asserts is in fact borne out and corroborated by the evidence of Garda Rowe himself. Moreover, in arriving at this decision, I have been influenced by the evidence of Mr. Terence Lynch which I regard as being utterly credible and entirely reliable."

    The learned trial judge considered in detail the conflicting evidence, largely that of the applicant and Garda Rowe. He held:

    "Where therefore there is a conflict between the applicant's evidence in the areas above covered and that of Garda Rowe, I have both a preference for and a commitment to accept that of the applicant above that of Garda Rowe."

    4. Condemned

    The learned trial judge concluded:

    "In conclusion, therefore, I determine as a matter of fact that the evidence given by the applicant, supported in part by his uncle and peripherally by his mother, as to certain conversations which he had with Garda Rowe, is accurate and that during the course of those conversations, as outlined above, various references were made to the English extradition warrants in the context of requesting from Mr. Lynch his help and cooperation not only with regard to other persons involved in the stolen cheque but also with regard to illegal activity of a general nature in the drug trade. I believe that Mr. Lynch was seriously concerned at the reference to the execution of the warrant and at the threat of the immediate revocation of his bail and that at regular intervals thereafter he was reminded of the continuing existence of the then unexecuted warrant (s). I must conclude as I do that the intention and purpose of these conversations was to encourage and exert pressure on the applicant to furnish the information as requested. This went far beyond normal questioning, proper interrogating, good investigatory or acceptable detective work and seriously trespassed in an area where Detective Garda Rowe had no right to be. A once off request for information sought in the same breath as a reference to the unexecuted U.K. warrants, would in itself have been objectionable, but the pattern and repeated interventions were in my view wholly unwarranted and unsustainable in law. Such behaviour can only be condemned by this court and that I so do."

    The learned trial judge then identified the issue of law as being whether in such circumstances, by reason of the findings of the court, it would be legally justified in refusing the applicant's extradition and directing his immediate release. The High Court held:

    "In my respectful opinion, notwithstanding this court's finding on the interchanges between the applicant and Garda Rowe, I cannot identify any constitutional right of Mr. Lynch which has been infringed by this conduct. If what Garda Rowe did could be said to constitute an inducement it failed. If more accurately it could be described as a threat it likewise failed. This is not a case where as a result of some improper representation, motivated by an impermissible purpose or desire, some admission or confession was made, some goods or property recovered or some other material established or identified. The question of statements being voluntary or involuntary or the application of the judge's rules, or the admission or exclusion of evidence, simply do not arise in relation to either Mr. Lynch or any third party. This is because the applicant did not at any time give to Garda Rowe about himself or any third party the information requested or any information. Therefore the reason, namely to maintain the minimum of essential standards, as given by Griffin J. in People v. Shaw [1982] I.R. 1 at 61 as an additional basis for the court's power to exclude a statement by an accused person though technically voluntary, can have no application here. Whilst the manner in and purpose of the Garda's approach was incorrect and improper, nevertheless no consequences adverse to the applicant resulted therefrom."

    4. Appeal

    From the above decision the applicant has appealed, in a s. 50 appeal, on the following grounds:

    "1. Having regard to all the facts set out on affidavit in the proceedings herein and the law, the learned trial judge erred in fact and in law in failing to grant the relief sought.
    2. The learned trial judge erred in fact and in law in failing to take into account the unexplained delay of approximately one year on the part of the United Kingdom authorities in issuing the warrants.
    3. The learned trial judge erred in fact and in law in finding that the period of time from the failure of the applicant/appellant to appear in court in the United Kingdom and the subsequent period to the date of execution of the warrants arising from the said failure to appear did not amount to a lapse of time under s. 50 (2) (bbb) of the said Acts.
    4. Having regard to the findings of fact made, the learned trial judge erred in law in failing to determine that there were exceptional circumstances which in all the circumstances would render the rendition of the applicant/appellant unjust, oppressive or invidious: in particular on the grounds that the procedures adopted by the Gardai and condemned by the learned trial judge amount to an abuse of process and a breach of the applicant's constitutional rights to be dealt with in accordance with law which led to the said delays on the part of the authorities in this jurisdiction."

    5. Decision on s. 50 proceedings

    The ground pursued by the applicant under s. 50 of the Extradition Act, 1965, as amended, was s. 50 (2) (bbb). This relates to the issue of delay. It was submitted that the delay in the case was to be viewed in light of the circumstances of the case and was such as to bring the applicant within s. 50 (2) (bbb).

    In essence, on this appeal, counsel for the applicant submitted that because of the acts of Garda Rowe the extradition application should not proceed. He submitted that by reason of what Garda Rowe did in October and November, 2001 the extradition process should be stopped because it was tainted.

    Clear facts were found by the learned trial judge on the evidence before him, which he was entitled to find, as to the conduct of Garda Rowe. This conduct the learned trial judge condemned. I would uphold that condemnation. The learned trial judge decided that in the circumstances, even with the findings of the court as to the acts of Garda Rowe, that the extradition should not be refused. The High Court could not identify any constitutional right of the applicant which had been infringed. Further, as the learned High Court judge pointed out, if what Garda Rowe did could be said to constitute an inducement it failed and likewise if it could be described as a threat it failed.

    I am quite satisfied that the learned trial judge was correct, there was evidence upon which he was entitled to find the facts as he did, and further it was entirely appropriate to condemn Garda Rowe. However, that being the case the situation remains that no benefit was achieved for the prosecution by the actions of Garda Rowe. No statement was made by the applicant. No evidence was obtained from the applicant. The applicant was not prejudiced as a result of Garda Rowe's conduct. Thus while the conduct of Garda Rowe is to be condemned it had no effect on the extradition proceedings.

    Extradition, (in this case, in fact, rendition between Ireland and the jurisdiction of England and Wales) arises from an agreement between States whereby persons may be extradited or made subject to rendition between the jurisdictions. The Extradition Act of 1965, as amended, sets out the procedures. Under s. 50 of the Act of 1965, as amended, there is a right of appeal and this the applicant took.

    Counsel for the applicant argued that the delay in this case was sufficient to bring it within s. 50 (2) (bbb) and that the lapse of time involved, although it is a great deal shorter than in any of the previous cases decided under this section, should be considered by the court appropriate to bring it within the section because of the facts of the case. Reliance was placed on State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550.

    Section 50 provides:

    "50(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.
    (2) A direction under this section may be given by the High Court where the Court is of the opinion that -
    (bbb) By reason of the lapse of time since the commission of the offence specified in the warrant for the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive, or invidious to deliver him up under s. 47 …"

    As the learned High Court judge pointed out, in Kwok Ming Wan v. Conroy [1998] 3 I.R. 527 Hamilton C.J., in considering s. 50 (2) (bbb) of the 1965 Act (as amended) said, at p. 532 of the report:

    "Before the High Court can direct the release of a person arrested under the Act of 1965 (as amended) it must form the opinion that by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under s. 47 of the Act of 1965 as amended.
    There are, by virtue of the terms of the said sub-section, three factors which must be taken into account by the trial judge in the formation of his opinion that it would be unjust, oppressive or invidious to deliver up the person arrested, viz
    (i) lapse of time,
    (ii) other exceptional circumstances, and
    (iii) all the circumstances of the case."

    The learned trial judge reviewed the relevant caselaw and held:

    "As can be seen most of the cases above mentioned, demonstrate the existence of very long periods with the shortest time span being three years and four months. In this case, even if one takes the latest possible event for the purposes of computing dates, the time span involved is still only two years and four months (approximately) and thus falls short of the period in MB v. Assistant Commissioner Conroy, supra, by almost one year. In these circumstances I do not believe that this court would be justified in treating that period as being sufficient for the purposes of coming within the phrase 'lapse of time' in paragraph (bbb) of s. 50 (2) of the Act. It seems to me that given the special category in which extradition is in, and the sui generis nature of proceedings thereunder, I could not recognise this period as being sufficient to trigger the further operation of the paragraph in question. That being so, in my view it is unnecessary to consider what might otherwise amount to 'other exceptional circumstances' in this case, and neither of course is it necessary to consider all of the circumstances and then decide whether the delivery up of the applicant would be unjust, oppressive, or invidious."

    I agree with and affirm this analysis.

    The High Court in this case also referred to the constitutional issue and held

    "Given my view that the period in this case is not sufficient to come within paragraph (bbb) of subs. (2) of s. 50 of the Act of 1965, it follows in my opinion that the applicant cannot rely upon this as constituting a sufficient basis to argue that his right to a trial with reasonable expedition has been breached. If however, that view, per se, is incorrect, then it would be necessary to consider, inter alia, the reasons for the two year period between October, 2000 and October, 2002, and where the responsibility lies for such a period. There is no doubt but that the applicant's failure to stay in England and answer the charges preferred against him, explains at least part of that delay. When so considered it seems to me that a period of one year for the making of the extradition request could not be considered excessive. Secondly, I note the reason advanced by Sergeant O'Neill as to why the warrants were not executed immediately on their receipt in this jurisdiction; which were that the applicant was before our domestic courts on separate and unrelated criminal charges. In addition of course, when the DPP finally made a decision in this case, the warrants were executed with reasonable dispatch. Accordingly in these circumstances, without further inquiry, I could not accept the submission that the applicant's constitutional right to a trial with reasonable expedition had been breached."

    I agree with this analysis. Given that the original delay arose because the applicant failed to honour the conditions of bail the initial delay arose because of his actions. I agree that in the circumstances the period of one year for the making of the extradition request was not excessive. Further, to restrain from executing requests for rendition while domestic proceedings were in progress, in the circumstances of this case, was not unreasonable. Also, after the District Court struck out proceedings because the book of evidence was not ready it was quite reasonable to wait until the Director of Public Prosecutions decided whether the case should proceed or not. Thus, the delay was explained and was reasonable in the circumstances of this case.

    Section 50 (2) (bbb) envisages a specific defence and protection for an applicant. It is a statutory defence which has been analysed previously in case law. I am satisfied that the applicant has not brought himself within the remit of the section. That is not to say that s. 50 (2) (bbb) is formulaic in that a specific amount of years or months is needed to trigger the defence. Each case has to be determined on its own facts.

    In this appeal reliance was placed on State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550. It was submitted that the lapse of time should be viewed differently because of the conduct of Garda Rowe – that the shorter period of time, shorter than has been successful in other s. 50 (2) (bbb) applications, should bring the applicant within s. 50 (2) (bbb) as a consequence of the circumstances.

    In Trimbole the High Court (Egan J.) held that the object of the original arrest, pursuant to s. 30 of the Offences Against the State Act, 1939, was to ensure that Trimbole would be available for arrest under the provisional warrant of arrest. He held that such an arrest amounted to a deliberate and conscious violation of constitutional rights, that there were no extraordinary excusing circumstances, that his detention in consequent proceedings was tainted by the illegality of his original arrest and accordingly that Trimbole was to be released immediately. On appeal to the Supreme Court the appeal was dismissed and the judgment of the High Court affirmed. It was held that the courts have an inherent jurisdiction and a positive duty to protect persons against the invasion of their constitutional rights, that if invasion has occurred the court should restore as far as possible the person so damaged to the position in which he would have been if his rights had not been invaded, and ensure as far as possible that persons acting on behalf of the executive who consciously and deliberately violate the constitutional rights of citizens do not for themselves or their superiors obtain the planned results of that invasion.

    I would distinguish Trimbole from this case. In this case, whereas the court has an inherent jurisdiction and a duty to protect persons against the invasion of their constitutional rights, there has been no constitutional right identified which has been invaded. Counsel for the applicant submitted that there was a right not to be put under duress by agents of the State, that there was a right not to have his freedom of decision oppressed, that his right to silence had been infringed, that his right to speak out voluntarily and not under compulsion was in issue, that these rights related to a right to privacy. However, I am not satisfied that a constitutional right has been identified in this case, nor that there has been a breach of a constitutional right of the applicant. In addition, Trimbole may be distinguished as in that case the applicant was released because the State had achieved a result which was tainted. In this case the State received no result, tainted or otherwise.

    Also, while the Supreme Court affirmed the order of the High Court and released Trimbole it was not with a view to the proceedings being barred forever. Thus, McCarthy J. stated, at page 585:

    "During the course of argument, the question was canvassed as to whether or not the prosecutor could be validly arrested and extradited upon a fresh warrant or set of warrants from Australia. Mr. McBride, as his counsel, expressly conceded that such an arrest and extradition would be valid. That is not to say that such arrest and extradition might not be challenged; for myself, however, I would like to make it clear that the views that I have expressed are not to be taken as any indication that the prosecutor is now seven weeks after his release free from extradition from this country."

    Consequently I am satisfied that Trimbole does not assist the applicant in this case. It is not a relevant authority.

    In this case there has been a lapse of time since the alleged events in England. There is, however, an explanation for that lapse of time which is consistent with the general run of cases. Thus, for example, the delay from February, 2002 to September, 2002 is explained by the seeking of the decision of the Director of Public Prosecutions as to whether, following the strike out of the proceedings because of the lack of the book of evidence, the charge was to be re-entered.

    The delay in this case, of approximately two years since the alleged offences in England, is a great deal less than in any other case in which a delay defence under s. 50 (2) (bbb) has been successful. I am not satisfied that the condemned behaviour of the Garda nullifies the proceedings. Condemned behaviour, if it occurred in a prosecution of an Irish case, and was such as to render a statement illegal, would have the consequences of rendering the statement illegal and not part of the evidence, but the prosecution would still proceed. The case would not be nullified. Similarly, in this case, although the conduct of the Garda is to be condemned it does not nullify the proceedings. The conduct of the Garda is not such as to justify the intervention of the courts so as to stop the whole process. That is not, of course, to determine that there may not be circumstances where conduct would be such as to nullify proceedings. That is not to say that if there has been unconscionable behaviour on behalf of a member of a State Agency that it would not be such circumstances as to stop proceedings. However, that is not the situation in this case. Consequently, I am satisfied that the applicant's appeal on the s. 50 proceedings should fail.

    6. Decision on judicial review

    In this case the applicant sought also judicial review of the decision to render the applicant to England. The factual basis for the application was the same as on the s. 50 (2) (bbb) application. It was submitted that the impugned activity of Garda Rowe constituted an abuse of process and that by reason of certain periods of delay his constitutional right to trial with reasonable expedition had been breached. For the reasons set out above I am satisfied that the applicant can not succeed on the s. 50 (2) (bbb) application or on this ground. As to the conduct of Garda Rowe, I affirm the findings of the High Court. As to the constitutional rights issue I also affirm the determination of the High Court which has been set out previously in this judgment.

    The judicial review application was an application for an alternative remedy. Clearly, multiple proceedings should not be brought if unnecessary. In this case issues were raised by the applicant as to constitutional rights. I have dealt with these matters already, and am satisfied that the applicant has not made out a successful case.

    As to whether this or any other alternative remedy is appropriate is a matter for the court when multiple proceedings are issued. However, if additional and constitutional grounds are raised in judicial review which are not within s. 50 (2) (bbb) then it is appropriate for an applicant to have access to the High Court to determine the additional issues raised. However, there should be no question of sequential proceedings. Such proceedings should be taken together by the High Court. Extradition and rendition matters should be dealt with expeditiously by the courts. Consequently, I affirm the approach of the High Court taken in these cases as well as the determination.

    7. S.47 proceedings

    The applicant also brought proceedings seeking relief under s. 47 of the Extradition Act, 1965, as amended. On these proceedings the applicant raised issues on his arrest. I am satisfied that the learned High Court judge was correct in his determination on these proceedings and I would uphold his decision. On this appeal counsel for the applicant submitted that Sergeant O'Neill when he was arresting the applicant had to have a "reasonable suspicion." However, such a submission is misconceived. An arrest under the Extradition Act is a statutory arrest and is governed by the procedures set out in the Act, as amended. Part III of the Act deals with the endorsement and execution of warrants from, amongst other jurisdictions, England and Wales. The procedures are set out clearly in the statute, and may be seen in s.s. 41 to 55 of the Extradition Act, 1965, as amended. In this case the procedures of the Act were followed. I would dismiss the appeal.

    8. Conclusion

    For the reasons given I would dismiss each of the three appeals and affirm the orders of the High Court.

    THE SUPREME COURT

    Denham J. 157,175,176/03

    Hardiman J.

    McCracken J.

    Between:

    WAYNE PATRICK LYNCH

    Applicant and Appellant

    and
    THE ATTORNEY GENERAL, THE CHIEF STATE SOLICITOR and PATRICK O'TOOLE

    Respondents

    and
    IN THE MATTER OF AN APPLICATION FOR RELIEF UNDER SECTION 50 OF THE EXTRADITION ACTS, 1965/2001 IN THE PROCEEDINGS ENTITLED
    and

    Between:

    WAYNE PATRICK LYNCH

    Plaintiff/Appellant

    and
    PATRICK O'TOOLE

    Defendant/Respondent

    JUDGMENT of Mr. Justice Hardiman delivered the 24th day of July, 2003.

    Procedural background.

    On the 1st October, 2002 the applicant was arrested on foot of two warrants issued under Part III of the Extradition Act. Having been brought before the Courts he was remanded in custody. He issued two sets of proceeding: pursuant to leave obtained on the 2nd December, 2002 he issued judicial review proceedings. On the 4th December, 2002 he issued a special summons claiming relief under s.50 of the Extradition Act, 1965 as amended. Meanwhile, the proceedings under the Extradition Act continued.

    Section 50 empowers the High Court to direct the release of a person in respect of whom an Extradition Order is sought on a number of grounds including:-
    "Section 50(2)(bbb) By reason of the lapse of time since the commission of the offence specified in the warrant… and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under s.47…"

    The principal reason why Mr. Lynch issued judicial review proceedings as well as proceedings under s.50 is that he claims that, in the circumstances of the case, the delay involved should preclude his extradition even if the Court considered that it did not meet the criteria of s.50(2)(bbb).

    Factual background.

    The factual background of this case is most unusual and constitutes Mr. Lynch's principal basis for claiming relief.

    It is set out in considerable detail in the judgment of the learned trial judge (McKechnie J.) and neither side has taken exception to his findings of fact. I gratefully adopt them and set out here only the barest summary necessary to make this judgment comprehensible.

    The applicant had travelled to the United Kingdom in the course of 2000. There, in October, 2000 he was allegedly involved in the incident in respect of which his extradition sought. Prior to going to England however he had been charged with unlawful possession of drugs contrary to s.3 of the Misuse of Drugs Act, 1977 and possession of such drugs for the purpose of sale or supply, contrary to ss.15 & 27 of the same Act as amended. This related to an alleged incident in Kilkenny on the 21st May, 2000. The applicant failed to appear in the District Court in Kilkenny to answer these charges and a warrant was issued for his arrest.

    In September, 2001 a Detective Garda Philip Rowe from Harcourt Terrace Garda Station was investigating an allegation that a stolen cheque had been used in an effort to obtain £18,700.00 at the Bank of Ireland, College Green. On the 1st October, 2002, the same day that the applicant was arrested on foot of the Extradition warrants, he was arrested in respect of the stolen cheque matter and detained pursuant to s.4 of the Criminal Justice Act, 1984. He was then charged with false pretences with intent to defraud the manager of the branch mentioned of £18,700.00 by pretending that the said cheque was a good and valid order and secondly with lodging the said cheque knowing or believing it to have been stolen. In respect of this matter, the applicant made his first court appearance in the Dublin District Court on the 4th October, 2001.

    At some point between the 1st and 4th October, 2001 Detective Garda Rowe became aware that there was an outstanding bench warrant in respect of Mr. Lynch and he arranged for a Detective Sergeant Lyng of Kilkenny to execute that warrant on the 4th October. Mr. Lynch spent some days in custody before obtaining bail on an independent surety.

    The subsequent history of these two sets of criminal proceedings is relevant to the point now made in relation to the Extradition Warrants. On the 13th November, 2001 the applicant pleaded guilty to the drugs charges in Kilkenny District Court and received a twelve months suspended sentence on each charge.

    In relation to the cheque charges, the applicant was remanded from time to time in the Dublin District Court between October, 2001 and February, 2002. The learned District Judge declined to accept jurisdiction in respect of the said charges in the District Court and the case was remanded from time to time so that the prosecution could serve on Mr. Lynch the documents required to enable him to be sent forward for trial. On the 1st February, 2002 when these documents were not ready the learned District Judge then sitting in the relevant court struck out the charges. These charges were never reactivated. On the 22nd August, 2002 the DPP directed that the accused should not be recharged. This direction was communicated to Detective Garda Rowe on the 5th September, 2002.

    On the 9th September, 2002 Assistant Commissioner Patrick O'Toole, the third-named respondent in the judicial review proceedings, endorsed the extradition warrants for execution the State. They were in fact executed by a Sergeant O'Neill on the 1st October, 2002.

    Alleged conversations with Detective Garda Rowe.

    Mr. Lynch alleged that in or about September, 2001 Detective Garda Rowe told him that the guards had received the extradition warrants from the United Kingdom. Mr. Lynch alleged that the detective then said that if he (Lynch) furnished certain information to the guards about the other people involved in the stolen cheque matter, the English warrants would not be executed. He says the Detective Garda also mentioned the outstanding warrant from Kilkenny. Mr. Lynch says that he indicated to the Detective Garda that he would not be able to assist him. He says that the detective said, in reply to this, that he (Lynch) would have plenty of time to think about it but that if cooperation was not forthcoming the English warrant would be executed.

    More specifically, Mr. Lynch says that about the 28th October, 2001 he was interviewed in relation to the stolen cheque. On that occasion he was told by Detective Garda Rowe of the extradition warrants and the Kilkenny warrant.

    He says that on the 1st October, 2001 the Detective Garda called to his house and asked for a private word before he attended court. The Detective then drove Mr. Lynch to the District Court. There was another guard in the car who was identified as Sergeant Lyng from Kilkenny. He says the Detective Garda asked him whether he was going to help Sergeant Lyng or himself in relation to the respective sets of charges were against him. He said he could not do this and was then arrested on foot of the Kilkenny warrant and taken into custody.

    Mr. Lynch further said that having got bail he attended in the District Court in Cloverhill. After the case had been remanded he asked the Detective Garda for the return of his mobile phone and a sum of cash which had been taken from him. He was told to contact the guard at Harcourt Terrace Garda Station. He did this by phone a few days later. He was first told that he could collect the items at the station but then Detective Garda Rowe enquired of him whether he was speaking from his home. He said he was and the Detective Garda then said that he would deliver the phone and cash to him at No. 4 St. Auden's Terrace. He did this about 10pm and he again asked Mr. Lynch to give him information about other peoples involvement in the stolen cheque case. Mr. Lynch says that he refused again and was told that he (Detective Garda Rowe) could have him back in custody. He says the Detective Garda knew that he had been very traumatised at his earlier remand in custody. He says the Detective Garda asked him would he help regarding people involved in the drugs trade. When he again refused the Detective Garda said that he could have time to think about it and he would see him in court.

    Mr. Lynch also says that similar conversations took place on two other remand dates between November, 2001 and January, 2002.

    Mr. Lynch further alleges that on the occasion when the cheque charges were struck out in the District Court, Detective Garda Rowe followed him out of court and asked him was he going to help him. He again mentioned the extradition warrants and the fact that he had found two ecstasy tablets in Mr. Lynch's possession on the 28th September, 2001.

    The Detective Garda denied in an affidavit, and in cross-examination, that he promised the applicant that the extradition warrants would be cancelled or would not be executed in certain circumstances. He says that he never offered Mr. Lynch any inducement or made any threat against him. He also stated on oath that he did not become aware of the existence of the warrants until November or December of 2001 so that it wasn't physically or humanly possible for him to have referred to the warrants at any earlier time, and specifically in late September. He rejected Mr. Lynch,'s allegations in the strongest terms and said that they were entirely untruthful and unsupported by facts.

    Proceedings in the High Court.

    Because of this strong conflict of fact, both Mr. Lynch and Detective Garda Rowe were cross-examined on their affidavits before the learned High Court Judge. Mr. Lynch's account was, in certain respects, supported by his mother and by Mr. Terence Lynch, his uncle, who was also cross-examined.

    Findings in the High Court.

    At paragraph 24 of his judgment which was delivered on the 8th April, 2003, McKechnie J. found as follows:-

    "Having considered the entirety of the evidence, which, as I have previously stated, also included the cross-examination of Mr. Terence Lynch, I have come to the conclusion that the disputed allegations made by the applicant, in all their material and substantive respects, were, on the balance of probabilities, made out and sustained by him. I have so decided not only on an assessment of the witnesses individual demeanour and manner in the witness box but also because, as is evident from what is hereafter summarised, a great deal of what Mr. Lynch asserts is in fact borne out and corroborated by the evidence of Garda Rowe himself. Moreover, in arriving at this decision, I have been influenced by the evidence of Mr. Terence Lynch which I regard as being utterly credible and entirely reliable".

    The learned trial judge gave his reasons for this conclusion in considerable detail. Since his findings are not the subject of appeal it is unnecessary to survey these reasons. However, the fact that the extradition warrants were not actually executed for many months after the Detective Garda was undoubtedly aware of them, and the Detective Garda's established actions in twice calling to the applicant's home in unusual circumstances were significant. So is the fact that the learned trial judge did not accept that he was unaware of the warrants until November, 2001. The judge found that the Detective Garda had either threatened, or at least given a clear impression to the applicant, that his bail could be revoked and he could be taken into custody even on the night on which he spoke to him in October, 2001. He was satisfied that the Detective Garda's reference to the warrants were "anything but innocuous".

    On foot of these findings, at paragraph 32 of his judgment, the learned trial judge said this:-

    "In conclusion, therefore, I determine as a matter of fact that the evidence given by the applicant, supported in part by his uncle and peripherally by his mother, as to certain conversations which he had with Garda Rowe, is accurate and that during the course of these conversations, as outlined above, various references were made to the English extradition warrants in the context of requesting from Mr. Lynch's help and cooperation not only with regard to other persons involved in the stolen cheque but also in regard to a legal activity of a general nature in the drug trade. I believe that Mr. Lynch was seriously concerned at the references to the execution of the warrant and at the threat of the immediate revocation of bail and that at regular intervals thereafter he was reminded of the continuing existence of the then unexecuted warrant(s). I must conclude as I do that the intention and purpose of these conversations was to encourage and exert pressure on the applicant to furnish the information as requested. This went far beyond normal questioning, proper interrogating, good investigatory or acceptable detective work and seriously trespassed into an area where Detective Garda Rowe had no right to be. A once off request for information sought in the same breath as a reference to the unexecuted U.K. warrants would in itself have been objectionable, but the pattern and repeated interventions were in my view wholly unwarranted and unsustainable in law. Such behaviour can only be condemned by this Court and that I so do".

    The Judge's condemnation.

    I wish wholly to endorse the condemnation by the learned trial judge of the behaviour of Detective Garda Rowe. What he did was reprehensible. Apart from its unfairness to the applicant, Mr. Lynch, his actions wholly disregarded the obligations of this State under the extradition or rendition arrangements which it has arrived at with friendly countries, in this case our immediate neighbour. It is hard to know whether this conduct is more reprehensible if he would indeed have buried or lost the warrants had he got what he wanted, or if he was lying in saying so. It unfortunately appears that he was lying on oath in his denials on affidavit and in the witness box of the behaviour which the learned trial judge has found he engaged in.

    The applicant claims that the behaviour of the Detective Garda, possibly in consort with another guard, was so reprehensible that it can only be effectively visited, and its repetition discouraged, by preventing the extradition of the applicant. This contention is dealt with in detail below. In support of it, however, Mr. Mulloy S.C. stated that if the extradition is not prevented, Detective Garda Rowe will have got away with what he did and there will be no effective discouragement of a repetition of similar behaviour on his part or that of any other guard.

    I cannot agree that, in light of the learned trial judge's finding, it can be said that Detective Garda Rowe has got away with what he did. A solemn, reasoned, finding of serious wrongdoing against a member of An Garda Síochána by the High Court is not a light matter either for the member individually or for the force as a whole. One is entitled to assume that it will be noticed by the Detective Garda superiors. The finding, extending as it does to a rejection of the Detective Garda's sworn evidence is plainly not without consequences for his credibility and utility. He is gravely compromised.

    Effect of the foregoing on rendition to England.

    A significant part of the applicant's case, both in support of his own proceedings, and in opposition to his proposed rendition to the jurisdiction of the Courts in England and Wales, is based on the facts alleged by the applicant, and in large measure accepted by the learned trial judge, as to the behaviour of gardaí in relation to his rendition. This is said to entitle to him to relief on the grounds of delay pursuant to s.50(2)(bbb). Separately, in his judicial review proceedings, the applicant relies on the same facts as establishing an abuse of process and an interference with his right to trial with reasonable expedition. There is no evidence, however, that the applicant has been prejudiced in his ability to meet English charges.

    Apart from the question of the passage of time, the applicant alleges that he has a constitutional right not to be treated in the manner in which he was, not to be made subject to threats and inducements, which it is said amount to oppressive treatment. Furthermore, it is said that in so acting the gardaí are to be regarded as the agents of the State and of the law officers so that their actions are to be regarded as those of the latter.

    In support of the relief sought on the above grounds, the applicant relies on a considerable number of dicta in the decided cases. In particular he relies on the following statement of Walsh J. in Ellis v. O'Dea [1990] ILRM 87:-

    "All persons appearing before the Courts of Ireland are entitled to protection against all unfair or unjust procedures or practices… The obligation of this State to save its citizens from all such procedures … extends to all acts done within this jurisdiction and that includes proceedings taken under the Extradition Act, 1965… There is nothing in the Act of 1965 which could be construed as purporting to permit to be exposed any person, the subject of extradition proceedings, to procedures which the Constitution would not tolerate".

    That case was, however, dealing with procedures to which a person whose extradition was sought might be subjected in the country to which he was to be delivered. The omitted portion of the extract from the judgment, signified in the applicant's written submission by a series of dots, is as follows:-

    "It goes without saying therefore that no person within this jurisdiction may be removed by order of a court or otherwise out of this jurisdiction where these rights must be protected to another jurisdiction if to do so would expose him to practices or procedures which have exercised that in this State would amount to infringements of his constitutional right to fair and just procedures".

    No complaint was made by the applicant about the procedures to which he would be subjected in the Courts of England and Wales. Instead, his complaints relate to use of the request for rendition to obtain advantages for the prosecution in other Irish criminal proceedings in which he was involved, and the delay in taking steps on foot of the rendition request necessitated by that ploy.

    In The State (Trimbole) v. The Governor of Mountjoy Prison [1985] IR 551, the applicant had been arrested under s.30 of the Offences against the State Act. The next day his period of detention under that provision was extended for twenty-four hours. And about the same time the Government made an order applying Part II of the Extradition Act to Australia. Later the same day, the High Court held that his arrest and detention under the Offences against the State Act was illegal because (contrary to the sworn evidence of gardaí) there had been no genuine suspicion that he had committed a relevant offence.

    In further proceedings under Article 40 of the Constitution it was held that the object of the arrest under s.30 had to be ensure that Mr. Trimbole was available for the execution of a provisional extradition warrant from Australia and that the arrest had amounted to a deliberate and conscious violation of his constitutional rights, without extraordinary excusing circumstances; that his subsequent detention was tainted by the illegality of his original arrest and he was entitled to be released. The Supreme Court upheld this finding. McCarthy J. said:-

    "If, then, the executive itself abuses the process of law as in this case by the wrongful use of s.30 of the Offences against the State Act, 1939, and, for what it is worth, persists in that abuse by giving false evidence in the course of the constitutional inquiry, are the Courts to turn aside and apart from administering severe strictures to those concerned, appear to sanction the procedure that has been adopted to secure the extradition of an individual to the requesting State?
    … That part of the executive represented by the Garda authorities and those others responsible for what I have termed the plan to extradite [Mr. Trimbole] must not be permitted to think that conduct of this kind will at worse result in a judicial rebuke, however severe. It will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be. If the consequences are such as to enable a fugitive to escape justice then such consequences are not of the Court's creation; they stem from the police illegality".

    No-one could doubt the principles thus eloquently expounded by McCarthy J. Adherence to them is necessary if the rule of law is to be maintained. But the relief granted in that case was granted on the basis that Trimbole's availability for the execution of the Extradition Warrant was the direct consequence of the false arrest. It is quite clear that no relief would have been granted in the absence of that causal relationship. This is clearly demonstrated by the final passage in the judgment of McCarthy J. from which it appeared that Trimbole's counsel conceded that his client would then, seven weeks after his release under Article 40, have been amenable to an arrest on foot of a fresh warrant from Australia. The learned judge said "… I would like to make it clear that the views that I have expressed are not be taken as an indication that the prosecutor is now seven weeks after his release free from extradition from this country".

    The underlying reason for that position is as follows. The Courts do not exercise a general disciplinary power over the executive, or the gardaí in particular. That power is vested elsewhere. The role of the Courts is invoked when, in the course of properly constituted proceedings, a complaint is made that some step or thing adverse to an individual has been taken, or come into being, on the basis of an illegality or an unconstitutional act on the part of his opponents. If this has occurred, the Courts will not normally permit the opponent to have the benefit of what flows from an unconstitutional act, in the interests of upholding the Constitution itself. But it will not interfere with a procedure, otherwise proper, on the basis of disapproval of some step taken in its general context. Thus, in Trimbole, there was no suggestion that the person whose extradition was sought could be permanently immune because the Gardaí had given false evidence in support of the original arrest.

    On the same principle, I do not believe that the behaviour of the Detective Garda in this case in itself has the effect of invalidating, or rendering inoperative, the request for rendition which is otherwise regular. I repeat this does not mean that the Detective Garda has "got away with it": the High Court's unappealed findings of fact are in themselves a grave matter. It would be disturbing indeed if the Garda Authorities did not consider what action might be appropriate on foot of them, if any. But these actions were without fruit either in relation to the rendition proceedings or the criminal proceedings, on the findings of the learned trial judge. This being so (and subject to what is said about delay below) the misdeeds of a member of An Garda Síochána cannot have the effect of stymieing action on foot of a request for a rendition under a statutory scheme reflecting an agreement between the State and another sovereign State. To permit the Garda's misdeeds to have this effect would be to put the agreement between Nations at the mercy of any single member of the police force who, through malevolence, stupidity or a failure to recognise the importance of observing elementary legal principles, committed an irregularity.

    Furthermore, though a member of An Garda Síochána may frequently act as the agent of the executive or of the law officers, I am far from holding that he is in all circumstances their agent acting as such. He will often be so regarded by those with whom he deals and may even take steps to induce that belief. There are many circumstances in which it would be inequitable to hold that the State could resile from that proposition. But in a case like the present where his actions were without fruit, it would be wholly disproportionate to inflict a penalty for them on the State or the law officers who, as far as the evidence goes, were wholly unaware of what he was doing, and more specifically on a friendly State seeking to operate a long standing arrangement for rendition.

    I would add that what is said above about the Courts not having a general disciplinary role in relation to the Gardaí is posited on the assumption (which I believe we are entitled and, in the absence of evidence to the contrary, obliged to make) that the Gardaí are and remain under effective discipline and control at the hands of their authorities. This has the corollary which is mentioned above, that one is entitled to assume that findings of facts such as those in the High Court will be noticed by those authorities. If for any reason it were demonstrated that this assumption was unrealistic and that the authorities were prepared to connive at, or to ignore, conduct such as occurred in this case, the situation would be transformed. In such circumstances, which I reiterate are not those obtaining at present, it would be necessary to recall the oft quoted words of Ó Dálaigh C.J. in The State (Quinn) v. Ryan [1965] IR 70, at 122:-

    "It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights. As a necessary corollary it follows that no-one can with impunity set those rights at nought or circumvent them, and that the Courts powers in this regard are as ample as the defence of the Constitution requires. Anyone who sets himself such a course is guilty of contempt of the Courts and is punishable accordingly".

    In revisiting those plangent words, it is also necessary to remind oneself that in Quinn's case, the Courts were powerless to vindicate his rights in an effective fashion. As a result of an unconstitutional abduction by English and Irish police officers, Mr. Quinn was lodged in prison in England where he remained notwithstanding contempt proceedings against the police officers involved. If the Courts intervention in a matter such as the present were, in changed circumstances, to be called for, it would have to be practically effective in the individual case.

    I stress that these observations do not apply to the present circumstances but rather to what Ó Dálaigh C.J. himself in Melling v. O Mathghamhna [1962] IR 1 referred to as a contingency which might arise in "an improbable but not-to-be-overlooked future".

    The constitutional rights.

    I have already noted that, subject to what is said below about delay, no specific detriment accrued to the applicant in terms of the extradition proceedings, or his ability to meet the case against him in England if extradited. Accordingly, I do not find it necessary in these extradition related proceedings to discuss whether or not the actions of the Detective Garda trenched upon the applicant's constitutional rights in general. I would reserve my position on this matter.

    Delay.

    On this aspect I agree with the judgment of Mrs. Justice Denham and have little to add. I note that the initial, and longest, delay in processing the charges against the applicant in England was caused by his own action in breaching the terms of his bail and absconding to Ireland. I would also agree, in general, that it may be reasonable to defer acting on a request for rendition if there are outstanding domestic charges which is bone fide intended to prosecute. However, the determining aspect of this case in relation to delay is that there is no evidence whatever of actual or presumptive prejudice to the applicant in relation to the English charges.

    Arrest.

    Independent of the submissions relating to the activities of the Detective Garda, the applicant specifically claims relief on the basis that his arrest on foot of the English warrants was not shown to be lawful. This was on the alternative bases that the arresting member was not shown to have any reasonable opinion grounding the arrest and on the basis that the member's entry to the applicant's dwellinghouse was not shown to be regular.

    The evidence in relation to the arrest was that of Sergeant O'Neill. He said that on the 1st October, 2002 he was in possession of two extradition warrants, certificates and affidavits in relation to the request for a rendition. Armed with these documents he went to 127 Cooley Road, Drimnagh, Dublin 12, the applicant's dwelling house, and gained admittance to the house. He produced his identification to the applicant. The latter confirmed his identity and confirmed his former English address in Hertfordshire. The Sergeant then arrested him.

    The evidence shows that a person who was indeed the person named in the English warrants was arrested on foot of them at his dwellinghouse. It is said that it was not demonstrated that Sergeant O'Neill had a reasonable suspicion that the applicant was in the dwellinghouse before entering it. In my view, if a member of the Garda Síochána (or anyone else) is looking for a particular person, it is entirely reasonable to look first in that person's dwellinghouse. I do not believe that a garda in that situation is obliged to form any particular suspicion before seeking a person with whom he has lawful business in that person's dwellinghouse. There is in this case no reason to believe that entry to the dwellinghouse was obtained forcibly so that the question of what suspicion, or what authority, would be necessary to enter forcibly does not arise. It is true that the Sergeant has not described how precisely he gained entry to the dwellinghouse, but merely says that he did so. I do not regard this as a failure of proof. The arrest is prima facie valid and the evidence in relation to it has not been challenged. In my view this ground must fail.

    Conclusion.

    I would dismiss all of the appeals and affirm the order of the learned High Court Judge.


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