Ipsofactoj.com: International Cases [2005] Part 3 Case 12 [SCIre]


SUPREME COURT OF IRELAND

Coram

Matthew Armstrong

- vs -

Conroy

DENHAN J

HARDIMAN J

GEOGHEGAN J

10 FEBRUARY 2004


Judgment

Mr Justice Denham

  1. Matthew Armstrong, hereinafter referred to as the plaintiff, has brought two appeals. The first is an appeal against the refusal of the High Court to grant an order, pursuant to s. 50 of the Extradition Act, 1965 as amended, directing his release. The second is an appeal from the refusal of the High Court to grant relief by way of judicial review.

  2. In the circumstances which have arisen Diarmuid McGuinness, S.C., counsel for the plaintiff, proceeded on the first appeal. Counsel reserved his right to proceed on the appeal from the decision of the High Court on the application for judicial review.

  3. The facts relevant to this appeal are not in dispute. On the 12th May, 1995 the plaintiff was arrested in Bray, County Wicklow, under a warrant which purported to have been issued by a London Magistrate on the 19th January, 1995. This warrant alleges that on the 29th June, 1992, within the jurisdiction of the Central Criminal Court for England and Wales, the plaintiff had in his possession a controlled drug of class A, namely 15.10 kilograms of brown powder containing diamorphine (heroin) with intent to supply it to another in contravention of s. 4(1) of the Misuse of Drugs Act, 1971. The plaintiff is a native of Northern Ireland and was at one time a member of the Royal Ulster Constabulary. He asserts that he is not guilty of the offence alleged against him or of any other offence relating to the possession or supply of drugs. He stated that he was shocked to find that it is the intention of the Metropolitan Police in England and Wales to charge him with the offence. The plaintiff set out in his affidavit his version of the events in issue. He describes his contact with a Superintendent of the RUC in Belfast, and a "sting" operation.

  4. The High Court (Ó Caoimh J.) gave judgment on the 18th January, 2002. As to the three matters to be taken into account the learned High Court judge held:

    In conclusion, I am satisfied that while there has been a lapse of time and there are some circumstances which are somewhat unusual and might be described as exceptional, that it cannot be said that it would be either unjust, oppressive or invidious to deliver the plaintiff up under section 47 at this point in time.

  5. The plaintiff appealed against the judgment and order of the High Court.

  6. The appeal was listed for hearing on 10th March, 2003 but was adjourned on the grounds of the ill health of the plaintiff. The case came on for hearing on 19th January, 2004.

  7. Counsel for the applicant, moving on the basis of O. 58 r. 8 of the Rules of the Superior Court, moved that the court receive further evidence upon questions of fact by way of affidavits as to matters which occurred after the date of the decision of the High Court. No query was raised on the application. The new evidence relates to the health of the plaintiff. Counsel for the State informed the court that the new evidence was noted, it was not contradicted in any way. Consequently I accept and consider the new evidence.

  8. The new evidence is that on the 23rd February, 2003 the plaintiff suffered a stroke involving his left cerebral hemisphere. This has resulted in right sided paralysis and speech and language difficulties. While the plaintiff was mute following the stroke he has regained some speech but has marked expressive aphasia. Dr. David Moorhouse stated, in a report dated 21st August, 2003, his conclusion as follows:

    This 62 year old right handed male suffered a severe stroke involving his dominant left cerebral hemisphere. It is now 6 months since the stroke and the patient has ongoing significant neurological deficits including a marked expressive aphasia and a severe right hemiparesis. The patient with a collateral history from his wife is suffering from symptoms consistent with post stroke depression which is well recognised. Regarding the specific question as to whether in my opinion this patient is fit to be extradited to England to undergo a criminal trial, at this stage in my opinion he is not medically fit from the neurological standpoint to be extradited or face a criminal trial. Besides the obvious difficulties, this patient has expressing himself due to the expressive aphasia, it is not clear at the present time as to whether he has ongoing comprehension difficulties as a result of his stroke, in view of this, one cannot accurately state whether the patient could fully understand the criminal proceedings if these were to be commenced.

    Dr. Moorhouse pointed out that it was then only six months since the plaintiff had suffered his stroke and that one could allow up to two years following various types of brain injury, including stroke, before one can state that the patient's symptoms are permanent. He noted that the plaintiff had time within which he might recover further and that he should be reviewed at that time.

  9. An affidavit was sworn by Samantha Downes, wife of the plaintiff, in which she set out the ways in which the plaintiff's stroke has affected his day to day living. This includes a description of his immobility and use of wheelchairs, restriction of movement in his right arm, an ulcer on his leg, his medication, his attendance at rehabilitation physiotherapy, and his restricted daily routine. It also includes the averment:

    Anything that requires a degree of concentration is beyond him. He usually falls asleep while watching television. The [plaintiff] can read but not anything complicated. He also finds that he cannot remember what he has read. He uses the computer but not to the extent he would have before. He had been a touch typist but he now has difficulty recalling the layout of the keys on the keyboard. When he tries to reply to e-mails it may take him three quarters of an hour to write 4 or 5 sentences. He has to check each one and he will often mix up words especially such as he/she and boy/girl .... I find that the [plaintiff] is a very changed personality since the stroke ....

  10. The appeal in issue is that arising under s. 50 of the Extradition Act, 1965, as amended by s. 2 of the Extradition (Amendment) Act, 1987. Section 50 provides that:

    (1)

    A person arrested under this part shall be released if the High Court or the Minster 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 opinion that:-

    ....

    (bbb)

    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 section 47 ....

  11. Three factors should be taken into account by a trial judge in reaching a determination under s. 50(2)(bbb) that it would be unjust, oppressive or invidious to deliver up the person arrested: the lapse of time, other exceptional circumstances and all the circumstances of the case: Kwok Ming Wan v Conroy [1998] 3 I.R. 527. The terms "unjust", "oppressive" and "invidious" are not defined in the Act, there is a certain degree of overlap between their respective meanings: Fusco v O'Dea (No. 2) [1998] 3 I.R. 470. A plaintiff's ill health may not make his extradition unjust, however, a lapse of time such as to expose a plaintiff to further legal processes in another jurisdiction in his state of ill health may be oppressive and invidious: M.B. v Conroy [2001] 2 I.L.R.M. 311.

  12. Under s. 50(2)(bbb) there must be a lapse of time and other exceptional circumstances before all the circumstances are considered. The lapse of time in this case was conceded by counsel for the State. As to the findings of the High Court, I am satisfied that it is open to determine that the High Court found that there were other exceptional circumstances, and I do so. Certainly, I infer from counsel that the only issue which arises on this appeal is the third factor in the s. 50(2)(bbb) application. The appeal of the plaintiff proceeded on the basis that there was a single issue for resolution: whether in all the circumstances it would be unjust, oppressive or invidious to deliver the plaintiff for rendition to England.

  13. The plaintiff is in a wholly different position to that in which he was when his appeal proceeded before the High Court. The new evidence before this court shows that he is physically disabled. However, more importantly from the point of view of this appeal, I am satisfied on the evidence that he has ongoing comprehension difficulties as a result of the stroke, and he has communication difficulties because of his expressive aphasia.

  14. I am satisfied that the new evidence may be received by the court, pursuant to O. 58 r. 8 of the Rules of the Superior Courts. However, that does not determine the matter, which arises under s. 50(2)(bbb) of the Extradition Act, 1965, as amended. The new evidence relates to a time after the decision of the High Court. As a general rule the Supreme Court is a court of appeal and issues are determined and facts found in the trial court, usually the High Court. However, exceptional circumstances are recognised, in the interest of justice. Thus the Rules of the Superior Courts enable the receipt of further evidence upon questions of fact as to matters which have occurred after the date of the decision of the High Court.

  15. It is now appropriate to consider whether such evidence may be considered under s. 50(2)(bbb). I consider this issue in the circumstances that the receipt of the evidence by the court was not contested by the State nor was its relevance under s. 50(2)(bbb) opposed. I am satisfied that this was an appropriate approach in the current situation. The essence of s. 50(2)(bbb) is to prevent the rendition of a person, when by reason of the lapse of time, and other exceptional circumstances, it would in all the circumstances be unjust, oppressive or invidious.

  16. In this case the issue under appeal is whether having regard to all the circumstances it would be unjust, oppressive or invidious to deliver the plaintiff up. The court is given a broad discretion, it is a discretion "in all the circumstances." Further, the purpose of the discretion is important, it is a discretion to prevent rendition which would be unjust, oppressive or invidious. I am satisfied that the words of the section are sufficiently broad as to give to the appellate court authority to exercise the statutory discretion with reference to the new evidence. However, not only do I take this positive view as to how the Act may be construed, but by viewing the section from another aspect I consider that the result would be the same. For, if the interpretation were otherwise it could result in a decision which was unjust, a result which the legislature has expressly excluded.

  17. This appeal proceeded on the basis of the third factor, that is whether in all the circumstances of the case it would be unjust, oppressive or invidious to deliver up the plaintiff. However, it does not exclude an issue being raised in the future as to whether new evidence could be considered as exceptional circumstances, on the basis of the second factor in s. 50(2)(bbb).

  18. The purpose for which the rendition of the plaintiff is sought is important and relevant. The plaintiff is sought to be delivered for a trial. It is not a situation where he has had a trial and is being sought for sentencing or to complete a sentence. It is not a situation where he obtained his freedom by a criminal act, such as escaping from lawful custody or breaching conditions of bail. The proceedings in London against him have yet to commence.

  19. Further, the nature of the trial is a relevant and important consideration. It is a charge to which the plaintiff has indicated his innocence. It is apparent that his defence will rest on pleading a complicated situation, including a police "sting", thus a complex trial may be envisaged.

  20. In M.B. v Conroy [2001] 2 I.L.R.M. 311 Keane C.J. stated at p. 319:

    Mr. Edward Comyn S.C. on behalf of the defendant submitted that, since the state of the plaintiff's health would not be a relevant consideration in determining whether he should stand trial in this jurisdiction it followed logically that it could not constitute an 'exceptional circumstance' which could be taken into account in applying the provisions in question. In this case, he said, it could not be suggested that the plaintiff would be physically unable to attend the proceedings or would be incapable of instructing his legal advisers and that, accordingly, it followed that his health was not a factor to be taken into account in determining whether it was unjust, oppressive or invidious to deliver him up under the 1965 Act. The condition of the plaintiff's health would be relevant, if at all, to the question of sentence and it was clear that, under the law of the United Kingdom, it could be taken into account by the court in Manchester in imposing sentence. It was also to be borne in mind, he said, that Part III of the 1965 Act dealt solely with extradition between this country and the United Kingdom and that, accordingly, this court could approach the case on the basis that appropriate hospital and medical facilities would be available to the plaintiff in the requesting jurisdiction. I am satisfied that Mr. Comyn is correct in submitting that these considerations, coupled with the plea of guilty, must lead to the conclusion that it would not be 'unjust' in the circumstances of the present case to permit the plaintiff's extradition.

    The circumstances in this case are different to those in M.B. For example, the plaintiff's physical health is greatly compromised, as is his ability to comprehend, and thus his capacity to construct his legal advisers. Further, he is not being returned after a conviction for sentencing, rather he is being sought to be delivered for a complex trial.

  21. However, on the facts in M.B., Keane C.J. went on to hold, at pp. 319-320:

    That, however, does not conclude the matter. S. 50(2)(bbb) has been engrafted onto the original provisions of the 1965 Act so as to enable a person to resist extradition on the ground that the lapse of time coupled with other exceptional circumstances would render his extradition, inter alia, oppressive or invidious. In the present case, had the extradition been effected with reasonable expedition, the plaintiff would have been sentenced and – assuming a custodial sentence was appropriate – would have served at least part of his term of imprisonment before his health began to deteriorate. In the light of the undisputed evidence as to his present medical condition, I am satisfied that the significant lapse of time in this case, for which the prosecuting authority in the requesting jurisdiction must bear some responsibility, has led to a situation in which to expose the plaintiff to further legal process in England in his present state of health would, in all the circumstances, be oppressive and invidious. I am satisfied that the inaction of the prosecuting authorities and the plaintiff's state of health were 'exceptional circumstances' within the meaning of s. 50(2)(bbb) and that the learned trial judge was correct in ordering his release.

    In this case there has been a lapse of time and exceptional circumstances. There is undisputed evidence as to the plaintiff's medical condition. In the circumstances of this case, I do not consider it a weighty factor that a final determination that the symptoms are permanent has not yet been made. While that might be very relevant in another situation, in all the circumstances of this case the absence of a final diagnosis is not a bar to the exercise of the jurisdiction. The issue then is whether in all the circumstances it would be unjust, oppressive or invidious to deliver him up.

  22. The words "unjust", "oppressive" and "invidious" are strong words which I would not attempt to define definitively. They raise concepts which should be applied in all the circumstances of a case. "Unjust" suggests unfair, an absence of fair treatment. "Oppressive" indicates oppression of a person, harsh or cruel treatment. I consider that these concepts are relevant to this appeal and I apply them accordingly.

  23. I am satisfied that the plaintiff, as a consequence of a stroke, has mental impairment (which I infer would compromise his ability to instruct his legal advisors and to conduct his defence in a trial) and physical disabilities, which are circumstances relevant to this application. These factors, together with the fact that he is sought to be delivered for a complex trial, create a situation which in all the circumstances it would be unjust and oppressive within the meaning of s. 50(2)(bbb) to deliver up the plaintiff under s. 47. 

  24. Accordingly, for the reasons given, I would allow the appeal on the application of the plaintiff under s. 50(2)(bbb) of the Extradition Act, 1965.

    Mr Justice Geoghegan

  25. These are two appeals brought together before this court. They were heard together in the High Court by Ó Caoimh J. Both sets of proceedings arise out of an order of the President of the District Court, Judge Smithwick, on the 24th September, 1998 directing that Matthew Armstrong, the above-named applicant and appellant in each case be delivered into the custody of the London Metropolitan Police pursuant to a warrant purporting to have issued on the 19th of January, 1995 by a magistrate sitting at Highbury Corner Magistrates Court in the Inner London area. The second of the two above entitled proceedings was a judicial review proceeding pursuant to leave seeking the quashing by way of certiorari of that order in the District Court on a number of different grounds. This matter was considered first in the judgment of the High Court and judicial review was refused. One of the appeals is from that refusal.

  26. The first of the above mentioned proceedings is an application brought by way of special summons for an order under section 50 of the Extradition Act, 1965, as amended, directing the release of the applicant having regard to the provisions of section 50(2)(bbb) of the 1965 Act, as amended. The High Court refused that order and the other appeal before this court is from that refusal. The basis of the refusal will be elaborated on further in the course of this judgment.

  27. In the ordinary way it would be logical for this court to hear and determine the appeal arising out of the judicial review proceedings in advance of determining the appeal arising from the section 50 proceedings. For reasons which will emerge, however, that course has not been adopted and the court has so far only heard addresses from counsel relating to the section 50 proceedings and indeed only to a particular aspect of that appeal. It will depend on the view which this court takes on that particular aspect as to whether it will be necessary for the court to consider the judicial review appeal at all or the other aspects of the appeal in the section 50 proceedings. For my own part, I am of opinion that having regard to the matters which have been argued before us an order directing the release should be made and therefore (apart from any consideration of costs) it would seem unnecessary for this court to consider the remaining questions arising in either of the appeals.

  28. Nevertheless in order to give context to the judgment, I will briefly outline what each proceeding was about.

    THE JUDICIAL REVIEW PROCEEDING

  29. In the District Court the State relied on an affidavit of a Detective Constable Edwards exhibiting the warrant and upon an affidavit of a Sergeant Johnson as to facts. In advance of the hearing the applicant's solicitors had been informed that the State would not be relying upon the affidavit of Detective Constable Edwards. However, it emerged that there was confusion here. It had apparently been planned that there be an affidavit of facts by Detective Constable Edwards as well as formal proof of the warrant and the facts set out in that affidavit were identical to the facts ultimately set out in Sergeant Johnson's affidavit. It had been wrongly assumed that the applicant had been served with this affidavit of facts by Detective Constable Edwards. The notification of intention to withdraw that affidavit was intended as a notification to withdraw the affidavit of facts and not the affidavit proving the warrant. The first ground for judicial review was that the learned President of the District Court ought to have considered the formal affidavit of Detective Constable Edwards which was before him as having been withdrawn and that therefore there was no formal proof of the warrant.

  30. Notwithstanding that the only affidavit which was before the District Court sworn by Detective Constable Edwards was the formal affidavit proving the warrant, the applicant sought leave to cross-examine the Detective Constable who was not present in court. That application was refused because of the nature of the proof. The background to the request was partly based on evidence that Detective Constable Edwards had given on an earlier bail application.

  31. The third ground of judicial review was that the learned President of the District Court had acted contrary to natural and constitutional justice in failing to grant the applicant an adjournment for the purposes of obtaining a transcript of a trial of one Joseph Sherry related to the events giving rise to this prosecution. That was a case in which Mr. Sherry had been acquitted of the same offence for which the applicant's extradition was being sought. The President had refused the adjournment partly on the basis that the applicant had had time to obtain the transcript and partly on the basis that he was not concerned with the merits of the case at that stage and that that was a matter for the trial. In the written submissions of the applicant before this court it is suggested that the transcript was relevant to the issue of correspondence.

  32. I do not propose to express any view in relation to any of these grounds as the judicial review appeal has not been argued before this court.

    THE SECTION 50 PROCEEDINGS

  33. As has been mentioned, the section 50 proceedings are grounded exclusively on paragraph (bbb) in sub-section (2) of section 50 of the Extradition Act, 1965, as amended. The said subsection (2) provides that a direction for release under the section may be given by the High Court where the court is of opinion that any one of a number of circumstances set out in the Act arise. One of those is set out in the said paragraph (bbb) and reads as follows:

    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 section 47 ....

  34. It is obvious from the wording of that paragraph and without any need to have recourse to authority that before a court can direct release it must engage in a threefold exercise which can be summarised as follows:

    1. It must consider whether there has been a "lapse of time" of the kind envisaged by the paragraph and in this connection having regard to the later words "and other exceptional circumstances" the "lapse of time" itself must be "exceptional".

    2. In addition to considering whether there has been the necessary "lapse of time" the court must consider whether there were also "other exceptional circumstances".

    3. If the court has come to the conclusion that the "lapse of time" within the meaning of the paragraph has occurred and that there were "other exceptional circumstances" the court must consider whether by reason of both the lapse of time and the exceptional circumstances it would be unjust, oppressive or invidious to deliver the applicant up under section 47 and in carrying out this exercise the court should have "regard to all the circumstances". The expression "all the circumstances" may include matters other than the "exceptional circumstances" such as for instance the family situation of the applicant.

  35. This view of the statutory provision accords with the judgments delivered in this court in Kwok Ming Wan v Conroy [1998] 3 I.R. 527, Fusco v O'Dea (No. 2) [1998] 3 I.R. 470, M.B. v Conroy [2001] 2 ILRM 311 and McNally v O'Toole (unreported 9th May 2002).

  36. In this particular case the learned High Court judge held that there had been a significant passage of time "as indicated by counsel in opening this case". He went on to hold that some of the lapse of time was clearly explained whereas other periods were not. The alleged offence was committed on the 29th of June, 1992. An arrest was made of another man in connection with the offence shortly after that time but no attempt was made to arrest the applicant. There was evidence before the learned High Court judge which he accepted that a deliberate decision was taken for police reasons in conjunction with the English Crown Prosecution Office not to arrest the applicant at the outset when he was available to be arrested. This was said to be for the purpose of protecting sources of information and methods of obtaining information etc. A warrant was issued for the arrest of the applicant on the 21st of October, 1992, a fact which in the view of the trial judge indicated that there was an intention at that early stage to have the applicant arrested and tried for the offences for which his extradition was now sought. That particular warrant had alleged a conspiracy. It was never utilised because it had been intended to bring extradition proceedings in France with a view to bringing back for trial a third man alleged to be involved in the offences, an attempt which would have been futile because there was no conspiracy offence under French law. Since it had been contemplated that both the applicant and the man in France would be tried at the same time a second warrant was issued on the 5th of August, 1993 which alleged an offence of possession of heroin with intent to supply. For technical reasons, that warrant was not used against the applicant either and a further warrant was issued on the 14th of January, 1995 in similar terms but with one addition for legal purposes. Only that third warrant was actually backed and used for the arrest of the applicant on the 12th of May, 1995, some two years ten and a half months after the date of the alleged offence.

  37. The learned High Court judge found on the evidence before him that the applicant had left the U.K. believing he had avoided any suspicion and had "apparently lived openly in this jurisdiction at all relevant times". The judge went on to find that certain contact had been maintained with the Garda Síochána in reference to the applicant in July of 1993 and that the formal matter of extradition did not arise until late in 1994 when contact was made with the office of the Attorney General resulting in a file being opened. The necessary decision by the Attorney General had to be made and this was done on the 14th of February, 1995. The warrant for the arrest of the applicant was not executed until the 12th of May, 1995. There were delays caused by domestic criminal charges being disposed of for which no fault could be attributed to either party. When the extradition proceedings came on in the District Court there were further delays with adjournments arising largely out of the confusion relating to the affidavit of Detective Constable Edwards referred to above. After setting out these facts in his judgment the learned trial judge then says the following at p. 59.

    It is clear that time of itself is not sufficient to bring into application the provisions of section 50(2)(bbb) but there must be other exceptional circumstances such that it would be unjust, oppressive or invidious to deliver the plaintiff up under section 47 of the Act.

  38. He then immediately proceeds to deal with "the exceptional circumstances alleged". It is quite clear therefore that he was finding that the kind of "lapse of time" which triggers consideration of whether there were "other exceptional circumstances" did arise in this case and indeed he makes that expressly clear later on in the judgment at the bottom of p. 60. He also makes clear that he was satisfied that there had been "some want of reasonable expedition on the part of the United Kingdom authorities, especially a period of fourteen months since August of 1993 to November, 1994 which has not been explained".

  39. Unfortunately, the trial judge is somewhat less clear when he comes to deal with the issue of "other exceptional circumstances". First of all the judge says that he is satisfied that the fact that the plaintiff lived openly and left the United Kingdom in circumstances where no criminality exists or is alleged do not of themselves constitute exceptional circumstances. On the other hand the judge did consider that "the circumstances whereby the plaintiff was not arrested at the outset nor followed but was allowed to leave the United Kingdom are certainly unusual circumstances" but he then opines that these have been explained by the United Kingdom authorities and that he was disposed to accept the explanation. He went on to say that he was satisfied that the circumstances relating to the existence of domestic charges which accounted for some period of time were not of themselves exceptional. The judge accepted the applicant's evidence that he on occasions went to Northern Ireland and was not arrested but he pointed out that there was no suggestion that he was known to be in Northern Ireland when he was there at any time after the police in Northern Ireland were alerted to the fact that he was wanted and should be arrested.

  40. The learned trial judge makes minimal reference to a strong sub-plot running through the case and which formed a substantial part of the cross-examination of the relevant English police officer by counsel for the applicant. This was a suggestion that at all material times the applicant believed that he was part of a "sting" operation and that on several occasions he sought and took advice from a named superintendent of the R.U.C. The learned trial judge took the view, as did the President of the District Court, that these were matters to be raised by way of defence at the trial and were not relevant to the extradition. Towards the end of p. 60 of the judgment the trial judge says the following:

    In conclusion, I am satisfied that while there has been a lapse of time and there are some circumstances which are somewhat unusual and might be described as exceptional, that it cannot be said that it would be either unjust, oppressive or invidious to deliver the plaintiff up under section 47 at this point of time.

  41. Counsel for the respondent, Mr. Patrick McCarthy S.C., did not seem fully to accept that there was a finding of "other exceptional circumstances". He may possibly be right. It is certainly not by any means clear what exactly were the "circumstances" which the judge considered "unusual and might be described as exceptional". But given that he went on to consider whether it would be unjust, oppressive or invidious to deliver up the applicant, I think that the learned High Court judge was holding that some of the surrounding circumstances were "other exceptional circumstances". It could be argued that he was taking the view that it was not necessary to make a definite finding whether any circumstances constituted "other exceptional circumstances" as he would not at any rate consider it unjust, oppressive or invidious to deliver up the applicant. But that would be an incorrect approach because under the Act there quite clearly has to be a finding both of "lapse of time" and of "other exceptional circumstances" before the question of whether it would be unjust, oppressive or invidious to deliver up the applicant can arise. The consideration of that last factor cannot be properly entered into without regard to specifically found "exceptional circumstances". I would take the view that on a proper construction of the statutory provision a combination of circumstances can constitute "other exceptional circumstances" where if only one such circumstance existed it would not be considered "exceptional". It may well be that the learned trial judge considered that the circumstances as a whole were unusual and as he put it himself "might be described as exceptional". At any rate I am of the view that on balance there has been a finding by the learned High Court judge of "other exceptional circumstances".

  42. There is a necessary overlap between the "other exceptional circumstances" and "all the circumstances" which have to be taken into account in considering whether it be unjust, oppressive or invidious to deliver up under section 47. In so far as the learned High Court judge made a specific finding that certain circumstances alleged to be "exceptional" by the applicant were not in fact "exceptional", it is logical that there be an appeal against that finding because the correctness or otherwise of that finding has a knock-on effect on the issue of whether it is unjust, oppressive or invidious to make a delivery under section 47. It is perfectly logical therefore that the applicant should include in his notice of appeal grounds 1, 2 and 3 which read as follows:

    1.

    That the learned trial judge erred in law and in fact in holding that the circumstances in which the plaintiff/appellant was living openly in this jurisdiction were not exceptional grounds within the meaning of section 50(2)(bbb).

    2.

    That the learned trial judge erred in law and in fact in failing to hold that the want of reasonable expedition by the United Kingdom authority and the failure of the United Kingdom authorities to arrest the plaintiff/appellant were exceptional grounds within the meaning of section 50(2)(bbb).

    3.

    That the learned trial judge erred in law and in fact in failing to hold that the particular circumstances in this case such as: the circumstance in which the plaintiff/appellant was involved in this case, his involvement with the RUC during the course of the alleged criminality, the failure of the United Kingdom authorities to arrest the plaintiff/appellant, the failure of the United Kingdom authorities to inform the RUC that they were looking for the plaintiff/appellant, the fact that the plaintiff/appellant on a number of occasions returned to the United Kingdom in the intervening time, the fact that the plaintiff/appellant lived openly and publicly in this jurisdiction and the want of reasonable expedition by the United Kingdom authorities in seeking his extradition either individually or in combination were exceptional grounds within the meaning of section 50(2)(bbb).

  43. For the purposes of an application under section 50 "exceptional circumstances" have a double relevance. In the first instance their existence must be proved in order to trigger consideration by the court as to whether "in all the circumstances" it would be "unjust, oppressive or invidious" to deliver up the applicant under section 47. Once that proof has been established however the same "exceptional circumstances" together with other circumstances will be taken into account by the court in the balancing exercise of deciding whether it would be unjust, oppressive or invidious to deliver up the applicant. If there was an unappealed finding by the High Court judge that circumstances which the applicant considered important (to use a neutral word) were not "exceptional" contrary to the submissions of the applicant that may necessarily have the effect of downgrading their significance when considering "all the circumstances".

  44. Moving back to the facts of this particular case and in particular new facts which have emerged by way of additional evidence in this court it is probably fair to say that the foregoing analysis may be academic. Even if (contrary to my view) the learned High Court judge has not made a finding of "exceptional circumstances" the additional evidence now before the court which is evidence of facts coming into existence since the hearing of the High Court constitutes "exceptional circumstances". If, on the other hand, the High Court has already held that there were exceptional circumstances to some degree at least as I believe it did then the additional evidence is of such a nature that in my view, it would clearly be "oppressive" to deliver up the applicant.

  45. First of all there is an affidavit of Samantha Downes, wife of the applicant/appellant, sworn on the 7th of March, 2003. In that affidavit she swore that on Sunday the 23rd of February, 2003 the applicant/appellant suffered a major stroke. The appellant was then taken to Cavan general hospital where he remained for some time. The deponent had great difficulty in communicating with him and she stated that her husband could not speak clearly at all and that in fact he found it very difficult to speak sentences. He appeared to be very confused and he was paralysed on his right hand side. She exhibited a medical report of Dr. James Hayes, consultant physician, dated 3rd of March, 2003 in which he stated that the appellant had "an acute left hemi paresis with sensory motor dysphasia" for which he was currently undergoing investigation and treatment. The doctor stated that the appellant would be unavailable to attend court appearances of any sort for the present and probably for the foreseeable future and that his condition would require a considerable length of rehabilitation before there could be any certainty as to long term prognosis. Strictly speaking that affidavit was sworn for the purposes of applying for an adjournment of this appeal which had been originally listed for the 10th of March, 2003 though the substantive remedy of release was sought in the alternative in the affidavit. The appeal was duly adjourned and new affidavits were sworn in October, 2003. By an affidavit sworn on the 1st of October, 2003 Mr. Robert Eagar, solicitor with Garrett Sheehan and Company, solicitors for the appellant, swore an affidavit for the purposes of the appeal itself and exhibited a number of medical reports, the principal one relied on being a report by Dr. David Moorhouse, consultant neurologist. Dr. Moorhouse when reporting had before him medical reports prepared by Dr. Hayes, consultant physician, dated 8th of July, 2003 and 16th of July, 2003 and a medical report prepared by Dr. Dara Hume, dated 15th of July, 2003 all of which are exhibited. The report of Dr. Moorhouse was dated 21st of August, 2003. I think it appropriate to quote in full the section of Dr. Moorhouse's report headed "Conclusion". It reads as follows:

    This sixty-two year old right handed male suffered a severe stroke involving his dominant left cerebral hemisphere. It is now six months since the stroke and the patient has ongoing significant neurological deficits including a marked expressive aphasia and a severe right hemiparesis. The patient with a collateral history from his wife is suffering from symptoms consistent with Post Stroke Depression which is well recognised. Regarding the specific question as to whether in my opinion this patient is fit to be extradited to England to undergo a criminal trial, at this stage, in my opinion he is not medically fit from the neurological standpoint to be extradited or face a criminal trial. Besides the obvious difficulties, this patient has expressing himself due to the expressive aphasia it is not clear at the present time as to whether he has ongoing comprehension difficulties as a result of his stroke, in view of this, one cannot accurately state whether the patient would fully understand the criminal proceedings if these were to be commenced. It is only six months since the plaintiff suffered the stroke involving his left cerebral hemisphere and one can allow up to approximately two years following various types of brain injury including stroke before one can state that the patient's symptoms are permanent and stationary. In view of this, this patient has approximately eighteen months more to recover from his stroke. At that stage he should be reviewed again and a report issued at that time."
  46. It is important at this stage to mention that counsel for the Attorney General has adopted a neutral stance in relation to the additional evidence. He has made no submissions to this court one way or the other as to how that evidence should affect the decision of the court. This is of some importance because on the basis of Dr. Moorhouse's report there is at least a theoretical possibility that the appellant could make a complete recovery within the next thirteen months, that is to say, eighteen months from the date of Dr. Moorhouse's report. It might conceivably have been argued on behalf of the State authorities in those circumstances that this court should adjourn the appeal for a lengthy period. Very properly in my view no such application has been made to the court.

    • In the first place no one is suggesting that such a recovery or even a near recovery is a probable outcome. In that sense it is quite different from some major breakage of bones where nevertheless there might be an optimistic prognosis.

    • Secondly, as far as possible an extradition proceeding should come on before a court as quickly as possible and should be decided by a court as quickly as possible.

    • Thirdly, it would necessarily be a matter of concern to the court that the very existence of these extradition proceedings hanging over the appellant could impede his recovery. It is not necessary for me to outline in this judgment the contents of the reports of Dr. Hayes and Dr. Hume as their views are effectively taken account of in the conclusions of Dr. Moorhouse.

  47. Finally, there is a second affidavit of the appellant's wife, Samantha Downes, sworn the 9th of October, 2003. In this affidavit the deponent sets out some of the ways in which the appellant's stroke has affected his day to day living. She says that his ability to walk has been severely affected. He can move from place to place in the house with the aid of a crutch but he cannot stay on his feet. His primary means of transport is by way of wheelchair. He has a motorised wheelchair which he uses to get around the grounds of the house and from house to the car. For visits to a rehabilitation facility and to other houses he uses a lighter wheelchair. His right arm is badly affected by the stroke and he has to wear a splint for a number of hours in the day. He has a painful ulcer in his right leg which requires dressing and he is on very substantial medication. He has problems with dressing. He also has problems with concentration even to the extent of not being able to watch a full film on television. He can only engage in simple reading and he cannot remember frequently what he has just read. It takes him a long time to reply to emails. The appellant's personality has substantially changed since the stroke and he has a tendency to break down crying at unpredictable moments.

  48. I am satisfied that the new evidence constitutes "exceptional circumstances" if such a finding is necessary but I am at any rate satisfied that having regard to that evidence it would clearly be "oppressive in all the circumstances" to deliver up the applicant under section 47.

  49. I would, therefore, allow the appeal and direct the release of the applicant pursuant to section 50 of the 1965 Act.

    Mr Justice Hardiman

  50. Agreed with both judgments.


Cases

Kwok Ming Wan v Conroy [1998] 3 I.R. 527; Fusco v O'Dea (No. 2) [1998] 3 I.R. 470; M.B. v Conroy [2001] 2 I.L.R.M. 311; McNally v O'Toole (unreported 9th May 2002)

Legislations

Extradition Act, 1965: s.47, s.50

Extradition (Amendment) Act, 1987: s.2


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