THE HIGH COURT
			1996 No. 255 Sp
IN THE MATTER OF THE EXTRADITION ACTS 1965 TO 1995
BETWEEN
MICHAEL BURKE
			PLAINTIFF
AND
NOEL CONROY
			DEFENDANT
JUDGMENT of Mr Justice McCracken delivered the 5th day of  March 1999.
	This is an application pursuant to Section 50 of the Extradition Act, 1965 as amended for an order directing the release of the Plaintiff.  The factual background to the case and the relevant dates may shortly be stated as follows:-
1.	On 9th November, 1992 the Plaintiff appeared before the Crown Court in Manchester in England charged with indecently assaulting a female person contrary to Section 14(1) of the Sexual Offences Act, 1956.  On that occasion the Plaintiff pleaded guilty to the offence charged and was remanded on bail until 7th December, 1992 for sentence, the Court having ordered probation reports to be prepared.
2.	On 7th December, 1992 the Plaintiff failed to appear at the Crown Court at Manchester and in fact had previously returned to Ireland.  He claims that he was not guilty of the offence and only pleaded guilty on the advice of his lawyers.  I do not consider that it is any function of mine to determine his guilt or innocence.
3.	In August, 1995 the Plaintiff was detained by the Gardai under Section 4 of the Criminal Justice Act, 1994 in relation to allegations of another offence, these allegations having been communicated to the Gardai by the police in the Greater Manchester Area.  During the period prior to this he had resided with his parents until September 1993 and subsequently in a flat of his own in Kilmainham, and was in receipt of a disability pension through the Kilmainham Post Office.
4.	On 4th December, 1995 a warrant for the Plaintiff's arrest issued out from the Crown Court at Manchester.
5.	On 8th January, 1996 the Plaintiff was arrested by the Gardai and brought to the Bridewell Garda Station and an application was made to the District Court pursuant to Section 47 of the Extradition Act, 1965.
6.	On 18th April, 1996, after several adjournments which were largely due to the ill health of the Plaintiff, the application under the Extradition Act was heard in the District Court and an order was made for delivery of the Plaintiff into the custody of a member of the Greater Manchester Police.
7.	On 19th April, 1996 these proceedings were issued.

	The first point taken on behalf of the Plaintiff is that the offence with which the Plaintiff was charged in Manchester is not an offence known to Irish law.  It is accepted that indecent assault contrary to Section 14(1) of the Sexual Offences Act, 1956 is basically the same offence as sexual assault contrary to Section 2 of the Criminal Law Rape Amendment Act, 1990, but the argument is made that the charge before the Court in Manchester did not specify where it was alleged the assault took place, and therefore did not show that it took place within the jurisdiction of the English Courts, while a charge incorporating the equivalent offence in Ireland would have to state where the offence was alleged to have occurred.  I do not accept that this constitutes a lack of reciprocity in the charge, as in my view the primary purpose of stating the place of the alleged offence is to give jurisdiction to the Court, and is not part of the definition of the offence itself.  I would therefore reject the Plaintiff's submissions on this ground.
	Section 50 of the Extradition Act, 1965 (as amended) provides that a person arrested under the Act shall be released if the High Court administers or directs such release in accordance with the Section, and the relevant portion of the Section as far as this case is concerned is:-
	
	"(ii)	A direction under this section may be given by the High Court when 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 and 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".

	Thus it is quite clear that there are three distinctive elements which must be considered by the Court, firstly the lapse of time, secondly other exceptional circumstances and thirdly all the circumstances of the case.  No one of these items can be taken in isolation and I think it is implicit that the Plaintiff's release cannot be ordered solely on the grounds of one of these items.  
	With regard to the question of delay, it has been decided by the Supreme Court in a somewhat similar case of Wan -v- Conroy (unreported 31st March, 1998), where the Plaintiff had also absconded from England, that the relevant period of delay to be considered was the period between the failure to appear in the Court in England and the date of the hearing of the Section 50 application in the High Court in Ireland.  It is interesting to note that Section 50 simply refers to delay as a matter to be taken into consideration.  This Section does not qualify the word "delay" as, for example, by calling it an "inordinate delay" or "unjustifiable delay" or anything of that nature.  In the present case there has been a delay between December, 1992 and February, 1999, and I am quite satisfied that this is a delay of the type which may be taken into consideration under Section 50.  Of course, the duration of the delay is a matter to be considered, but once there has been delay, the duration is not something to be taken in isolation, but is to be considered in conjunction with the other factors under the section.
	There are two basic matters to be considered as exceptional circumstances in the present case.  The first is that the Plaintiff has been living openly in Dublin since he absconded, and indeed initially resided with his parents.  He was in the Social Welfare system from an early stage, as he was drawing a disability benefit.  The victim of the alleged assault was the daughter of his estranged wife, and the evidence is that she would certainly have known his parents address and would have made it available to the Greater Manchester Police.
	The second matter claimed as an exceptional circumstance is the deterioration in the health of the Plaintiff.  The Plaintiff has suffered from an exceptionally severe type of asthma since childhood, and certainly suffered from it at the time of his Court appearances in Manchester.  This was a rare form of asthma and was treated with steroids.  Unfortunately this treatment has had serious side effects, and in particular the Plaintiff now suffers from serious osteoporosis.  I am satisfied from the evidence of Dr Clancy, who was in fact cross-examined on his affidavit, that the severity of the osteoporosis is such that a severe fit of coughing can induce fractures of the ribs.  I am also satisfied that this condition did not exist in 1992, but only developed some time about 1995.  Furthermore, the Plaintiff has also developed insulin dependant diabetes mellitus since his return to Ireland.  Dr Clancy's evidence is that a prison sentence would have grave implications for his health and might pose a serious threat to his life, and that because of the different complaints, managing and co-ordinating his problems would be difficult in prison.
	On behalf of the Defendant, Miss Moorehead argued, firstly that there is a heavy onus on a Plaintiff in these cases.  I accept that that is so, particularly in a case such as this where the Plaintiff pleaded guilty and then absconded while awaiting sentence.  The question of his getting a fair trial does not arise.  
	She also argues that some at least of the delay is due to adjournments of this case because of the Plaintiff's illness, and that the time between the absconding of the Plaintiff in December, 1992 and his arrest in January, 1996 was not unreasonable.  As I have already stated, there is a clear decision of the Supreme Court that the relevant time is not the date of the Plaintiff's arrest, but the date of the hearing before the High Court, and in that regard there has been a delay of over six years.  While certainly that delay would not in itself be considered inordinate, nevertheless it is a considerable delay, and is one which I am satisfied I am entitled to take account of and consider in conjunction with the other circumstances of a case.  
	I think the serious issue in this case is whether there are exceptional circumstances within the meaning of the section.  Again, I would accept that, taken on its own, the fact that the Plaintiff has lived openly in Ireland since he returned to this country would probably not be an exceptional circumstance, although it certainly is another circumstance to be taken into account under the third part of the section.  However, the health of the Plaintiff is a very serious matter.  Apart from the evidence of his illnesses, there is also evidence that, by reason of these illnesses, he has had a number of very acute episodes which have required immediate and emergency hospitalisation.  Miss Moorehead has urged that these are not matters for me, but are matters which may be taken into account by the judge in the Manchester Crown Court when sentencing the Plaintiff, and she has produced evidence of English law to this effect.  It is of course correct that the health of a convicted person may be very relevant to the sentence, but in this case the Plaintiff's health now is very different from his health at the time of his conviction.  His present circumstances with regard to his health can certainly be called exceptional in that he suffers from two very severe condition which did not exist at the time of his conviction, namely the osteoporosis and the diabetes.  I have no doubt that this is an exceptional circumstance within the meaning of Section 50.
	As I have said, I would consider that the fact that he has lived openly in Ireland and was in the Social Welfare system is another circumstance which I may take into account.  There is also the fact that he is clearly now unable to work, and is in effect a permanent invalid. 
	A number of authorities have been opened to me, which, while instructive, do all depend upon their own facts.  This is of necessity so, as what is being considered are exceptional circumstances.  I am satisfied that, taking this case on it own facts, there has been a delay within the meaning of Section 50, there certainly are exceptional circumstances arising out of the illness of the Plaintiff, and there are other circumstances such as the fact that he has been living openly in this country since 1992.  In view of the fact that he pleaded guilty, and, notwithstanding his protestations now, I must assume he was guilty, I do not think it would be unjust to deliver him up under Section 47.  However, because of the special circumstances, I do think it would be oppressive and invidious to do so.  I would emphasise that the legislature thought fit to base considerations under this section, not only on the basis of the justice of the extradition, but also on the basis of whether it would be oppressive or invidious, which must be very subjective tests.  Under the circumstances, I have no hesitation in making a direction under Section 50 that the Plaintiff should be released.