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1. The Plaintiff was arrested on the 30th April, 1998 on foot of a warrant issued by Her Majesty’s Crown Court in Northern Ireland on 25th March, 1998. He was taken before the District Court and remanded until an application was made for his rendition on the 20th May, 1999. An Order for the rendition of the Applicant was duly made by the District Court on the 17th June, 1999. On the 17th June, 1999 the Plaintiff commenced these proceedings by way of Special Summons the relief sought being an Order directing his release pursuant to the terms of Section 50 of the Extradition Act, 1965 as amended. The Extradition Act 1965 as amended by the Extradition (European Convention on the Suppression of Terrorism) Act, 1987 Section 9 and the Extradition (Amendment) Act 1987 Section 2(1)(b) provides as follows:-

2. The sole ground relied upon by the Plaintiff before me is that specified in Section 50(2)(bbb) namely that it would be unjust, oppressive or invidious to deliver up the Plaintiff by reason of the lapse of time since the commission of the offence specified in the warrant and other exceptional circumstances and having regard to all the circumstances.

3. The offence the subject matter of the warrant was committed on 6th January, 1989 at University Street Belfast when a robbery was carried out by three persons one of whom carried a sawn-off shotgun. The Plaintiff was arrested on the same day. He made a statement admitting his involvement. Having been admitted to bail he failed to attend his arraignment on 8th September, 1989.

4. In his Affidavit sworn on 14th October, 1999 grounding his application the Plaintiff deposes to the evidence given in the District Court as follows:-

5. Detective Chief Inspector Robert Lee of the Royal Ulster Constabulary in his Affidavit sworn on 27th March, 2000 on this application disputes this in the following terms -

6. The Plaintiff did not file a further Affidavit in reply. The Plaintiff was cross-examined on his Affidavit and accepted that in the District Court he had said that he had gone to Europe but stated that is so saying he had been mistaken.

7. Director Chief Inspector Lee was cross-examined and in evidence said that the Royal Ulster Constabulary had no reason prior to October 1996 to believe that the Plaintiff was in this jurisdiction. He agreed, however, that it was reasonable to suspect that the Applicant could be in this jurisdiction prior to October, 1996 but that inquiries as to whether or not the Plaintiff was in this jurisdiction had not been made. A review of outstanding warrants was carried out in October, 1996 and at that time it was ascertained that the Plaintiff was living in the Republic of Ireland. On the basis of the Affidavits filed in this matter and the evidence given in cross-examination of the Plaintiff and Detective Chief Inspector Lee I find that the Royal Ulster Constabulary were not aware until October, 1996 that the Plaintiff was living in this jurisdiction.

8. The evidence given by the Plaintiff is that he came to this jurisdiction in May 1989 living initially in Ballymun for a very short period and for further short periods at other addresses. At the date of his appearance in the District Court on the 17th June, 1999 he had been living at 192 Huntstown Wood, Co. Dublin for more than five years. During his residence in this jurisdiction for some nine years he had furnished his correct name and address to the Department of Social Welfare. His address has also been known to the Gardaí as in 1992. He was questioned by the Gardaí in relation to the whereabouts of a brother. In 1987 he was arrested by the Gardaí and taken to Tallaght Garda Station photographed and fingerprinted. It is argued on his behalf that these circumstances are sufficient to show that had inquiries been made by the Royal Ulster Constabulary through the Gardaí they could have ascertained the Plaintiff’s whereabouts. Further on 19th January, 1998 the Plaintiff attended his mother’s funeral in Northern Ireland and the Northern Ireland authorities could reasonably have checked for his attendance at the funeral and had they done so could have arrested him. Taking all these circumstances into account I am nonetheless satisfied having regard to the Northern Ireland authorities’ belief that the Plaintiff had gone to Europe that the failure to make inquiries in this jurisdiction was not unreasonable. I accept the evidence of Detective Chief Inspector Lee that the Royal Ulster Constabulary were not aware of the Plaintiff’s mother’s funeral. In the circumstances of this case the lapse of time was not such as to encourage in the Plaintiff a reasonable belief that his extradition would not be sought. When it was ascertained in October, 1996 that the Plaintiff was living in the Republic of Ireland consideration of his extradition commenced a warrant being obtained on 25th March, 1998, that is within a period of 17 months.

9. While resident in this jurisdiction the Plaintiff obtained casual work from a cousin in the period May, 1989 to January, 1990. In January 1990 he signed on for Social Welfare purposes until December, 1990. After that he continued to work for his cousin again on a casual basis for a period of 1 year and 8 months. Thereafter he remained on Social Welfare. He married in 1995 when living in this jurisdiction and had a child who was aged two years and six months at 14th October, 1999 the date upon which the Plaintiff swore his Affidavit in this matter. After the birth of his child his wife worked full time and he took responsibility for looking after the child on a full-time basis. The sole income of the family is that of his wife. A house had been purchased although I am not told in whose name it was purchased. The only means of discharging the mortgage repayments is his wife’s earnings. Should he be returned to Northern Ireland to face charges his wife would have to give up her employment to look after the child and her income thereafter would be insufficient to enable her to discharge the mortgage repayments. I accept that his extradition to Northern Ireland at this time would cause hardship to his wife and young child.

10. The lapse of time with which I am concerned is that between the commission of the offence, 6th January, 1989 and the hearing of this application: Kwok Ming Wan -v- Conroy (1998) 3 IR 527. In determining whether the lapse of time is such as to render it unjust oppressive or invidious to deliver up an applicant I must have regard to the extent to which that lapse of time has been caused or contributed to by the conduct of the Plaintiff. In Kwok Ming Wan v- Conroy Hamilton CJ quoted with approval the following passage from the Judgment of Diplock L.J. In Kakis -v- Republic of Cyprus 1978 2. All ER 634 at 638:-

11. I find that the lapse of time in seeking the Plaintiff’s extradition up to October, 1996 was due to his failing to answer to his bail and thereafter fleeing Northern Ireland and not to any default on the part of the Northern Ireland Authority. The lapse of time thereafter is not of itself so great as to render the Plaintiff’s extradition unjust, oppressive or invidious. In this last regard I bear in mind that the Plaintiff having admitted in a statement and not having denied in these proceedings his involvement in the offence with which he is charged is not prejudiced in his defence thereto by the period of time which has elapsed since its commission.

12. In addition to considering lapse of time the Act in Section 50 (bbb) also requires me to take into account “other exceptional circumstances”. Thus in Burke -v- Conroy (unreported) 5th March, 1999 McCracken J took into account that the Plaintiff had suffered a serious illness and that a prison sentence would have grave implications for him having regard to his state of health. In Kwok Ming Wan -v- Conroy 1998 3 IR 527 the Court took into account the fact that the Plaintiff lived and worked openly in this jurisdiction, had been in contact with the Gardaí and immigration authorities and had obtained a passport from the British Embassy: further in the relevant period he had married, founded a family, purchased a home and established a business which his wife would be unable to run in his absence. On the basis of all these circumstances the Applicant succeeded in his application under Section 50(bbb) on the Act.

13. Applying the law to the facts of this case while there has undoubtedly been a significant lapse of time the proximate cause of the same was the Plaintiff’s failure to answer to his bail on 8th September, 1989 and fleeing Northern Ireland. From the 8th September, 1989 until October, 1996 the lapse of time is explained by the belief of the Northern Ireland authorities that the Plaintiff had gone to Europe and the Plaintiff has not shown that this belief was unreasonable in that in his evidence the District Court, which he now says was mistaken, he said that he went to Europe. It is argued on behalf of the Plaintiff that an inquiry of the Gardaí in the period May 1989 to January 1990 and from August 1992 onwards during which time he was in receipt of Social Welfare would have produced an address for him and enabled extradition proceedings to be commenced. Again in 1992 he had been interviewed by the Gardaí and in 1987 arrested by the Gardaí both which events it is argued raised the possibility that an inquiry of the Gardaí would have enabled the Northern Ireland authorities to ascertain the Plaintiff’s address. In January, 1998 he had gone to Northern Ireland to attend his mother’s funeral and his presence within that jurisdiction might also have enabled him to be arrested. I take these matters into account. However I am satisfied that individually or cumulatively they were not sufficient to induce in the Plaintiff a belief that his extradition would no longer be sought by the Northern Ireland authorities.

14. As to exceptional circumstances the position of the Plaintiff can be distinguished from that of the Plaintiff in Kwok Ming Wan -v- Conroy . The Plaintiff here did not engage in work other than for a relatively short period prior to August, 1992 and at all other times was in receipt of Social Welfare . He has not established a business here. He was not in contact with the Northern Ireland or United Kingdom Authorities. His contact with the Gardaí was on two occasions only: it is to be expected that as a person subject to the Aliens Act, Kwok Ming Wan’s contact with the Gardaí would be on a regular and recurring basis. Further the Plaintiff has been reticent in relation to his residence. His Affidavit sworn on the

15. The Act requires me to take into account all the circumstances. Accordingly, I do take into account those circumstances relied upon by the Plaintiff which I have found not to be exceptional. I also take into account the seriousness of the offence with which the Plaintiff has been charged; by any standards the offence is a serious one the corresponding offence in this jurisdiction carrying a maximum penalty of life imprisonment.

16. The Plaintiff has failed to satisfy me that by reason of lapse of time since the commission of the offence up to the date of hearing before me and by reason of exceptional circumstances and having regard to all the circumstances that it would be unjust, oppressive or invidious that he should be extradited. Accordingly I refuse the relief claimed.