High Court of Ireland Decisions

1. In April 1993 four warrants were issued by Judicial authorities in England and Wales for the arrest of Nessan Quinlivan. He is the Plaintiff in the first of these proceedings in which he seeks relief pursuant to the provisions of Section 50 of the Extradition Act, 1965, as amended. He is the Applicant in the second proceedings which are Judicial Review proceedings. The proceedings were heard together and I will throughout this judgment refer to Mr. Quinlivan as the Applicant.

2. Two of the English warrants were issued by His Honour Judge Verney, a judge of the Crown Court sitting at the Central Criminal Court in London. The first of them recites that the Applicant stood indicted in the Central Criminal Court on a charge that he with Pearse McCauley and William McKane, on divers days before the 12th day of November 1990, within the jurisdiction of the Central Criminal Court, conspired together and with others to murder Sir Charles Henderson Tidbury and other persons contrary to section 1 of the Criminal Law Act, 1977. The second of Judge Verney's warrants also recites that the Applicant stood indicted in the Central Criminal Court on a charge that with the same persons on divers dates before the 12th day of November 1990 within the jurisdiction of the Central Criminal Court, he conspired with them and with others to cause, by explosive substances, explosions of a nature likely to endanger life or cause serious injury to property in the United Kingdom contrary to section 3(1)(a) of the Explosive Substances Act, 1883.

3. The two remaining warrants were issued by Mr. Ronald Bartle a Metropolitan Stipendiary Magistrate and Justice for the Inner London area. The first of these allege that on the 7th day of July 1991 at Her Majesty's Prison, Brixton, the Applicant, whilst in lawful custody on a criminal charge awaiting trial, escaped from that custody contrary to common law. The final warrant alleges that the Applicant on the 7th day of July 1991 at Brixton Hill, London, unlawfully and maliciously wounded Malcolm Hugh David Kemp with intent to do him grievous bodily harm contrary to section 18 of the Offences Against the Person Act, 1861.

4. All four warrants were backed for execution in this jurisdiction pursuant to the relevant provisions of the Extradition legislation and the Applicant was arrested on foot of the warrants on the 6th day of November 1995.

5. On the 11th day of December 1995 the President of the District Court ordered that the Applicant be delivered into the custody of a member of the relevant police forces in England for conveyance to the appropriate London Courts which issued the warrants.

6. In these proceedings the Applicant seeks to be relieved of the consequences of the Orders made by the District Court and asks for his release.

7. In the course of this judgment I will have to consider the many points which were made by Counsel on behalf of the Applicant but before doing so it is necessary that I set forth the evidence which was adduced on the hearing in some detail. In the course of so doing I will also deal with the legal objections which were taken to the admissibility of such evidence. The proceedings were heard together and it was agreed that the evidence adduced in one of the proceedings could be considered in the other and vice versa.

8. In his affidavit grounding the application under Section 50 of the Extradition Act, the Applicant says that the conspiracy charges arise out of a campaign of violence which was conducted by the Irish Republican Army (I.R.A.) in England in 1990 during which, inter alia , Mr. Ian Gow M.P. was murdered, a former Governor of Gibraltar was shot and wounded and one soldier was shot dead and two others wounded at Lichfield Railway Station. He also says that in the course of their investigations into I.R.A. activities in England the police there had earlier found a list of intended I.R.A. targets, which included Sir Charles Tidbury. He says that Sir Charles Tidbury was a prominent businessman in England. He was a former chairman of Whitbread, the brewers, which under his chairmanship was allegedly a major contributor to the funds of the British Conservative Party.

9. The Applicant was arrested at Stonehenge in England with one Pearse McCauley on the 2nd October 1990. He says that the police immediately let it be known that they were suspected of the murder of Mr. Gow and of being members of an I.R.A. active service unit that was involved in several serious offences around that time. They were taken to Paddington Green Police Station and were questioned by members of the Anti-Terrorist Branch. He says that the whole tenor of his questioning made it clear that the conspiracy charges relate to the I.R.A. campaign and accordingly they are "political offences". He exhibits extracts from the contemporaneous accounts made by the police during the questioning of the Applicant and Pearse McCauley. The Applicant also exhibited an extract from a contemporaneous record made by the English police of the questioning of his alleged co-conspirator William McKane and his wife. Mr. McKane was tried on the conspiracy charges and acquitted. He says that these extracts further demonstrate the political nature of the alleged conspiracy charges on foot of which his extradition is sought.

10. The Applicant and Pearse McCauley were held on remand at Brixton Prison. Whilst there, it is alleged they were approached by a named prison officer who encouraged them to attempt to escape and indicated that he would assist them to that end. He says that that prison officer was a former member of the S.A.S. and was working as an informant for a Detective Sergeant of the Staffordshire Police Special Branch. He says that the prison officer was acting as a spy and agent provocateur for the British Anti-Terrorist Police or the Security Services otherwise known as MI5.

11. The Applicant and McCauley were suspicious of the prison officer when he first suggested escaping. However, the prison officer repeated his suggestion on a number of occasions and went to considerable lengths to gain their confidence. He advised them that the best time to effect an escape would be when returning from Mass on Sunday and he told them of what he believed to be the weakest point of the prison's perimeter wall. He promised to supply them with a map of that section of the prison and to smuggle in a gun which he recommended would be essential to carrying out the plan. He also said that he could arrange for transport to be waiting for them outside the prison when they escaped. This prison officer was transferred from Brixton Prison before the arrangements were completed but it was by utilising the plan suggested by him that they effected their escape on the 7th July 1991. It is that escape that is the subject of the third and fourth charges in respect of which extradition is sought.

12. The escape resulted in enormous publicity in England. The Home Secretary ordered the Chief Inspector of Prisons to prepare a report. He did so, but the sections of the report dealing with the role of the prison officer were not published. There was also an enquiry into the role of the Detective Sergeant from the Staffordshire Special Branch and indeed of that Branch itself which was conducted by the Deputy Chief Constable of Nottinghamshire. There was also an enquiry into the role of Home Office officials. The reports of these enquiries were not published. Thames Television broadcast two programmes on the matter and the Sunday Express also published material on the topic. It is from the media coverage of these events that the Applicant has formed the belief that the prison officer and the Detective Sergeant were acting throughout on behalf of the S.A.S. or MI5 or some other section of the Security Services. He expresses the belief that the prison officer's task was to persuade them to escape in the hope that they would lead the security services to their alleged confederates in the I.R.A. who at the time were carrying out a campaign of violence in England. He says that the prison officer acted as an agent provocateur in relation to the prison escape and did so with the encouragement and assistance of the British security authorities.

13. He points out the large amount of publicity concerning all these events and the further publicity which took place subsequent to his arrest in this jurisdiction in April 1993.

14. The Respondents did not seek to cross examine the Applicant on his affidavits.

15. The principal replying affidavit to the Section 50 application is sworn by Detective Constable Clive Robinson of the London Metropolitan Police. He was assigned to the Anti-Terrorist Branch of that force and on the 6th March 1995 was appointed as the exhibits officer of the investigation into the matters the subject of the application for extradition. He was cross examined. He made it clear that at the time of the offences he was not involved in the investigation. He subsequently became involved as a result of taking over the position of the exhibits officer who is in control of all of the forensic exhibits in respect of the offences alleged.

16. In respect of the conspiracy to murder Sir Charles Tidbury and other persons he expressed his belief under oath that there was a conspiracy to murder which created a collective danger to the lives and physical integrity of persons, that it affected civilians and generally persons foreign to any political motives behind it and that cruel and vicious means were to be used. He made a like assertion of belief under oath concerning the conspiracy to cause explosions charges and was cross examined in respect of these assertions of belief.

17. His affidavit went on to allege that the Applicant and McCauley were members of an active I.R.A. service unit which was intent upon the murder of Sir Charles Tidbury and more than twenty other persons by using under car booby trap bombs and guns to kill them and by causing explosions designed to result in both the indiscriminate loss and endangerment of life and serious injury to property. He says that between January 1990 and October 1990 the Applicant, McCauley and others were variously involved in obtaining and using false identities, obtaining addresses in London, acquiring various vehicles which he listed, preparing lists of those to be murdered and conducting research into them and acquiring, storing and preparing in part an arsenal of terrorist equipment for use when required. He exhibits in his affidavit a list of the persons named in the list of those to be murdered - they include two former Secretaries of State for Northern Ireland, a number of Members of Parliament and a substantial number of Military personnel. The Detective Constable averred that the great majority of the persons on the list had retired by 1990 and that details of their families were included in some instances as were photographs of others. The details recorded about Sir Charles Tidbury included his addresses in Hampshire and London; his telephone number in London; his membership of British United Industrialists and the registration number of two cars. The cars, in fact, belonged to two neighbours of Sir Charles and must have been noted during surveillance of his address. Insofar as James Prior, a former Northern Ireland Secretary is concerned, the details concerning him included the fact that he was a cricket fan who attended cricket matches at grounds open to the public. He says that the Applicant and McCauley took part in the research into those who were to be murdered. This included the use of a 1979 edition of "Who's Who" which contained details of addresses that were deleted from subsequent editions. There was also a 1990 edition of the same book. The Applicant's fingerprints were found on the original list of those to be murdered and numerous pages of the 1979 copy of "Who's Who".

18. The arsenal of terrorist equipment which was acquired, stored and prepared in part included 54.4 kilograms of semtex high explosive; 8 electric detonators; 6 plain detonators; 4.6 meters of detonating cord. There were also the containers and control units for 5 under car booby trap bombs activated by mercury tilt switches with magnets attached for securing to the under side of cars. There were eight time and power units giving a delay period before activation of up to 60 minutes. Eight more time and power units gave a delay period before activation of about 12 hours. There was also radio control equipment for the detonation of a bomb from a substantial distance. Some of the high explosive was used to make a very large bomb which was hidden in a rucksack. That contained, packed and ready for detonation, over 22 kilograms of semtex high explosive. He says that when detonated it would have caused substantial and indiscriminate loss of life as well as serious injury to property. The 5 under car booby trap bombs were each designed to be loaded with about 1 kilogram of semtex high explosive. One of the bombs was so loaded, ready (with the addition of a detonator) for use. He says that the nature and size of the 5 bombs was such that when detonated they would have been likely to cause loss of life to anyone who happened to be in the relevant car or in its vicinity. In all, therefore, he says there was sufficient explosive equipment for at least one very large bomb, 5 under car booby trap bombs, 1 radio controlled bomb, and 7 other bombs. All of these bombs, he says, would have been capable of causing indiscriminate loss of life as well as causing serious injury to property. With extra detonators, it would have been possible to make more bombs of the same type.

19. There was also found a Kalashnikov semi-automatic rifle and a repeating shotgun. There was a Browning 9 mm self-loading pistol, a Vzor 7.65 mm self-loading pistol, a Webley revolver, a .38 Taurus revolver and abundant ammunition for use in all these firearms. These firearms were each of a type capable of causing indiscriminate injury. The arsenal was stored at two addresses where the Applicant and McCauley were living in London.

20. Objection was taken to the remainder of Detective Constable Robinson's evidence concerning the two offences in Judge Verney's warrants on the basis that it was hearsay. Indeed in cross examination the Detective Constable conceded that the material contained in paragraphs 12 to 15 of his affidavit was either second hand or third hand. Such being the case it is, in accordance with the rules of evidence, not admissible and that much was effectively conceded by counsel for the State authorities. In the course of cross examination however counsel for the Applicant accepted that there was no dispute concerning what was sworn to at paragraph 13 of the affidavit. That was to the effect that on the 2nd October 1990 the Applicant and Pearse McCauley were arrested whilst they were in a car parked at the Stonehenge monument in Wiltshire. The Applicant was in possession of false identification papers in the name of Paul Barnes and of keys for two premises where the arsenal already described was stored. The Applicant gave the false name of Connolly and was in possession of a driving licence in the name of Gregory O'Goan. Both the Applicant and McCauley declined to answer questions during subsequent interviews.

21. Turning then to the escape, the Detective Constable expressed his belief that it involved the taking of a hostage, created a collective danger to the lives and physical integrity of persons and that it affected civilians and generally persons foreign to any political motives behind it. He also expressed the belief that cruel and vicious means were used. He further expressed the belief that there was a malicious wounding of Malcolm Hugh David Kemp with intent to do him grievous bodily harm which created a collective danger to the lives and physical integrity of persons and that it affected civilians and generally persons foreign to any political motives behind it and that cruel and vicious means were used. Insofar as he attempted to describe what occurred on the morning of the escape again objection was taken to this part of the Detective Constable's evidence. It was said, with justification, that this evidence was also hearsay and consequently I decline to take into account paragraphs 18 to 21 of the Detective Constable's evidence. The Applicant did however adduce evidence himself through means of television reports of what went on on the occasion in question which included an interview with the injured party, Mr. Kemp. Whilst the object of this exercise was to adduce evidence of extensive and allegedly prejudicial media coverage of the escape which is the subject of the judicial review application, it was agreed between the parties that the evidence in one application would be admissible in the other. Consequently there is evidence before the court adduced by the Applicant himself demonstrating what occurred on the morning in question. I will summarise that evidence.

22. On Sunday the 7th July 1991 the Applicant was detained at Her Majesty's Prison at Brixton in London. Following attendance at Mass, the Applicant and Pearse McCauley effected their escape from that prison. They did so by the use of violence and a pistol. In the course of the escape the gun was held to the head of a prison officer and he was used as a hostage. It was also discharged at another prison officer. Having escaped from the confines of the prison to Brixton Hill, the Applicant hijacked a car being driven by a passerby, a

23. Mr. Kemp accompanied by his wife. It is alleged that the Plaintiff discharged the firearm into Mr. Kemp's right thigh, causing him to bleed extensively and to require emergency treatment in hospital. This summarises the evidence in respect of the warrants the subject of the Order of the District Court.

24. The first issue made by the Applicant is that the offences to which the four warrants relate were political offences or were offences connected with the political offence.

25. Section 11 of the Extradition Act, 1965 provides:-

26. Section 50 of that Act in so far as it is material provides:-

27. These statutory provisions must now of course be read in the light of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987 in so far as it may be relevant. That Act provides at section 3 that certain offences shall not be regarded as a political offence or an offence connected with a political offence for the purposes inter alia of Part III of the Act of 1965, with which I am concerned. Sections 3 and 4 of the 1987 Act provide for the offences which are not to be regarded as political offences. I will have to consider these statutory provisions when dealing with the offences alleged in the warrants issued by Mr. Bartle.

28. The offences recited in Judge Verney's warrants are both conspiracy charges. The Applicant contends that the provisions of the 1987 Act must be construed strictly and that the offence of conspiracy is not captured thereunder. Counsel on behalf of the State authorities does not contest that proposition. It was not until the passage of the Extradition (Amendment) Act, 1994 that the offence of conspiracy was brought within the purview of the 1987 Act. As all four warrants in suit in the present case were issued prior to the 5th April, 1994 the 1994 legislation has no application (see section 1(3)(b) of the 1994 Act).

29. It follows therefore that whatever may be said as to the applicability of the 1987 Act to the offences dealt with in Mr. Bartle's warrants that Act has no application to the offences dealt with in Judge Verney's warrants. The question of whether those offences fall within the political offence exception must therefore be determined in accordance with law excluding the provisions of the 1987 Act.

30. That statement seems to me to dispose of the argument which was sought to be

31. It follows that the Applicant must satisfy me that the offences in question were

32. The Act of 1965 does not define the term "political offence". This Court must form an opinion on the facts of this case so as to determine whether these offences can properly be so described. Assistance is of course to be gained from the existing jurisprudence on the topic.

33. In the McGlinchey case the offence charged was the murder of an elderly woman in

34. Northern Ireland whose house was attacked by a gang of men firing rifles.

35. Belfast Crown Court of possession of firearms and ammunition with intent to endanger life or property. He was sentenced to 18 years imprisonment. He subsequently escaped in a mass breakout from the Maze Prison on the 25th September, 1983. A prison officer died during the course of that escape. The Applicant was arrested in County Longford on the

36. A divisional High Court (Hamilton P., Gannon and Costello JJ.) refused to order his release. That decision was reversed on appeal. In the course of his judgment Walsh J. said (at 213-4):-

37. In the portion of his judgment from which I have just quoted Walsh J. makes it clear

38. In the present case the first of Judge Verney's warrants alleges conspiracy to murder Sir Charles Tidbury and more than 20 other persons. The method which it is alleged would be used was by placing booby trap bombs under cars and the use of guns. Whilst the lists of persons whom it is alleged were to be murdered include two former secretaries for state for Northern Ireland, a number of members of Parliament and a substantial number of military personnel, there were other persons who did not appear to have any involvement directly or indirectly in political activity. In any event the great majority of the persons on the list regardless of occupation had retired by 1990. Use in particular of the booby trap car bomb must inevitably run a high risk of causing loss of life or serious injury to passers-by with no involvement whatsoever with politics past or present. Bitter experience shows that the use of the booby trap bomb involves indiscriminate death and serious injury to those who are unfortunate enough to be present when it is detonated.

39. Insofar as the second charge is concerned, it appears to me that, given the arsenal of terrorist equipment including in excess of 50 kg of semtex high explosive, there must likewise be a high probability that use of such weaponry would give rise to loss of life and injury to persons unconnected or associated with politics or military matters. There was therefore in these circumstances a potential loss of civilian lives which in my view denies the applicant a right to avail himself of the political exception as specified under Section 50 of the Act. These activities do not appear to me to fall within what could on any reasonable view be regarded as "political, either in itself or its connections" (per O'Higgins C.J. in McGlinchey v. Wren ). In fact such activities are the antithesis of the "ordinances of Christianity and civilisation and of the basic requirements of political activity" ( per O'Higgins C.J. in McGlinchey v. Wren ). The booby trap bomb and semtex high explosives do not discriminate as to who they kill or maim when set off. Their use or potential use would constitute "indiscriminate attacks" on civilians and would be "crimes against humanity even if they have a political objective and are also acts of terrorism whether committed by a state or by those seeking to overthrow a state" (per Walsh J. in Finucane v. McMahon )

40. I therefore conclude that the offences charged in Judge Verney's warrent, having regard to the facts of this case, do not fall within the political exception and the Applicant's claim in this regard therefore fails.

41. The Respondents contend that the offences specified in Mr. Bartle's warrants fall within the scope of this Act and therefore cannot be regarded as political offences or offences connected with a political offence. The 1987 Act had as its object the giving effect to the European Convention on the Suppression of Terrorism and the amending and extension of the Extradition Act, 1965. The Act applies, except where otherwise provided, in relation to an offence whether committed or alleged to have been committed before or after the passing of the Act (see section 1(4)).

42. Section 3(1) provides that for the purposes mentioned in section 3(2):-

43. Subsection 2 of section 3, insofar as it is relevant, provides:-

44. Subsection 3 of section 3, insofar as it is relevant, provides:-

45. The term "an offence involving" is defined in relation to kidnapping, the taking of a hostage or serious false imprisonment, as including any offence committed in the course thereof or in conjunction therewith. The term "serious false imprisonment" is defined as meaning any false imprisonment involving danger, or prolonged or substantial hardship or inconvenience, for the person detained.

46. Section 4, insofar as it is relevant, provides as follows:-

47. The term "serious offence" is defined in section 1 of the 1987 Act as follows:-

48. It is appropriate here to outline the admissible evidence which was given before me concerning these two offences in slightly more detail than the summary which I gave earlier in this judgment. This evidence can be gleaned from the Applicant's own affidavit, the replying affidavits, the cross examination of the witnesses and the evidence submitted by the Applicant in the form of both affidavits and exhibits including the television interview with the injured party Mr. Kemp.

49. On 7th July, 1991, the Applicant was in custody at Brixton Prison. He along with Pearse McCauley was escorted to Mass in a church at the prison. After Mass they were being escorted back to their wing by four prison officers. McCauley produced a 6.35 mm self-loading pistol which had been hidden inside the trainers that he was wearing. He ran towards the kitchen door where he held the gun close to the head of an auxiliary officer. He then approached Prison Officer Pickford and fired a single shot at him which missed. He then held the gun at Prison Officer Pickford's head and took him hostage. A Prison Officer Eves, arrived at the scene. McCauley pointed the gun at him and fired. As a consequence the bullet tore Mr. Eves' trousers. McCauley then took Prison Officer Pickford's keys and fired a shot in the direction of 'A' wing. The Applicant then used the keys to open the door and both the Applicant and McCauley took Prison Officer Pickford to the outside wall and opened another gate with the keys. They then forced Prison Officer Pickford to climb up onto kennels which were adjacent to the wall and then escaped.

50. The Applicant and McCauley ran a short distance from the prison. They used a prison officer's car to effect their escape. They later abandoned that. They then hijacked a vehicle belonging to Mr. Kemp and his wife. The car was being driven on the public road by Mr. Kemp accompanied by his wife. The Applicant pointed the gun at the front of Mr. Kemp's car and without further warning pointed the gun at his legs and fired. The bullet passed through Mr. Kemp's right thigh causing a wound which bled extensively and which required emergency treatment in hospital. The Applicant and McCauley thus made good their escape.

51. The offence of escaping involved the taking of a hostage and serious false imprisonment of the prison officer. This clearly involved danger to that officer who had a gun held to his head. I am satisfied on the basis of the evidence that the escape from Brixton Prison did involve particularly serious aspects. They included the creation of a collective danger to the life, physical integrity and liberty of persons, namely the prison officers or indeed anybody else who got in the way of the Applicant and his accomplice. I am also satisfied that vicious means were used in the commission of the offence. The offence cannot in my view properly be regarded as a political offence or as an offence connected with a political offence. Insofar as it may be said that it was connected with the offences dealt with in Judge Verney's warrants I have already held that they do not constitute political offences or offences connected with political offences. If I am wrong in that view concerning the offences in Judge Verney's warrants and they can legitimately be regarded as political offences then I am satisfied that there is an insufficient causal and factual relationship between those offences and the offence involving the escape from Brixton Prison.

52. I am satisfied that the offence of escaping from Brixton Prison is captured under section 4 of the 1987 Act. There is no doubt but that the offence of escaping from lawful custody is a serious offence within the statutory definition. The giving effect to this offence involved an act of violence against the life, physical integrity and liberty of the prison officers. It therefore is captured by the provisions of section 4 and cannot in my opinion be regarded as a political offence or an offence connected with a political offence.

53. The wounding of the unfortunate Mr. Kemp was of course an arbitrary act of violence against a civilian simply going about his lawful business with his wife. In my opinion this offence is likewise within the scope of section 4 of the 1987 Act. It created a collective danger to the life, physical integrity or liberty of persons. Those persons were in particular Mr. Kemp and his wife but also any other person who happened to get in the way of the Applicant and his accomplice. The Kemps were people who were entirely innocent bystanders. The activity of the Applicant clearly affected them and they were entirely foreign to the motives allegedly behind the Applicant. There can be little doubt but that the act was one of considerable cruelty and viciousness. This offence cannot properly be regarded as a political offence or as an offence connected with a political offence.

54. The provisions of section 4 apply and the political offence exception cannot therefore apply.

55. Indeed even before the coming into effect of the 1987 Act this offence would not in my view have been regarded as a political offence or one connected therewith. In this regard the views of McCarthy J. in Shannon v. Fanning [1984] I.R. 569 at 598 are relevant. He said:-

56. The mind equally rebels against the view that what was done to Mr. Kemp could be regarded as a political offence or an offence connected therewith. Even if the offences in Judge Verney's warrants are, contrary to my view, political offences, this offence is neither factually or causally related to them to be treated as an offence connected therewith.

57. In my view, therefore, the Applicant's claim to the political offence exception in respect of all of these offences fails. I now turn to consider the next submission made on his behalf.

58. The next contention with which I must deal is that because the escape from Brixton Prison was facilitated by an agent provocateur the necessary correspondence between that offence and the offence of escaping from lawful custody in Irish law is not present. The gist of the argument is that an Irish Court would not convict a person in circumstances where an escape was facilitated by an agent provocateur. Consequently it is said fundamental fairness would be contravened if the Applicant were to be rendered for trial in the requesting State. A similar argument is made in respect of the malicious wounding. It is said that as the agent provocateur supplied the gun he must have known that the Applicant might feel compelled to use it in effecting a complete escape and, therefore, as a matter of Irish law would be acquitted of the offence. Consequently it is said there is no correspondence between the two offences and so rendition of the Applicant to the appropriate authorities in England should not occur. In considering this submission the following should be borne in mind.

59. There is no extradition treaty between the United Kingdom and this State. The process for rendition between the two countries of persons accused and convicted operates by means of a backing of warrants system. That must be explained by reference to the fact that this State and the United Kingdom are neighbours with close ties. There are no immigration controls between the two states. This explains the system for the rendition of persons in accordance with the reciprocal system for backing and enforcing warrants between the two countries. The procedures prescribed are not as elaborate as extradition hearings properly so called.

60. This argument concerning correspondence is in my view without substance for a number of reasons. First, there is no evidential basis for it. If the Applicant wishes to contend that the offence for which rendition is sought does not correspond with an offence in this jurisdiction the onus of proof is on him in that regard. No evidence of English law has been produced to deal with this subject.

61. Secondly, on the basis of the evidence before me I have considerable doubt as to whether there was entrapment here at all.

62. A third and perhaps much more fundamental objection to the submission is that it invites the Court to consider, not the constituents of an offence, but rather a defence which may be open to the Applicant in respect of the offence charged. It is in my view no part of this Court's function to conduct what would in effect be a preliminary trial of the offence charged before deciding on whether rendition should occur or not. This approach seems to me consistent with the procedures prescribed under Part III of the Act and with such case law as there is on the topic. In Archer v. Fleming (Unreported, High Court, Finlay P.

63. Whilst the Supreme Court reversed the decision of Costello J. (as he then was) in that case it expressly approved of his approach to this part of the case before him. In the Supreme Court Finlay C.J. said (at p.235):-

64. McCarthy J. who delivered a concurring judgment said in respect of this aspect of the matter (at page 238):-

65. Applying that logic by analogy it does not appear to me that I ought to conduct such an investigation in respect of a possible defence that is open to the applicant in the court of trial. Furthermore, I am not satisfied that there are grounds here which would warrant such an investigation by reference to the constitutional jurisdiction referred to in the passages which I have just cited.

66. I therefore dismiss this element of the Applicant's claim also.

67. Section 50 of the Act of 1965 as amended provides that a direction for the release of an extraditee may be given by this Court. Subsection 2 insofar as it is relevant provides:-

68. As is clear from the terms of this section and the judgment of Hamilton C.J. in Kwok Ming Wan v. Conroy [1998] 3 I.R. 527 at 532 there are three factors which must be taken into account in the application of that provision. They are (i) lapse of time, (ii) other exceptional circumstances, and (iii) all the circumstances of the case, so as to render rendition unjust, oppressive or invidious.

69. The Applicant contends that the lapse of time which has occurred here is such as to bring him within the ambit of the subsection which I have just quoted. I must therefore turn to a consideration of the relevant dates.

70. The Applicant was arrested in England on 2nd October, 1990, and escaped from Brixton Prison on 7th July, 1991. He was arrested in this State on 4th April, 1993. The warrants in suit were issued within days of that arrest. He was charged on foot of the arrest of 4th April, 1993, with unlawful possession of firearms and membership of the I.R.A. The Special Criminal Court convicted and sentenced him to four years imprisonment in October 1993. He was released from that imprisonment in November 1995. The warrants were executed on 6th November, 1995. In December 1995 the District Court made an order for his rendition. These proceedings were then instituted on 13th December, 1995. On 18th December, 1995, the Applicant was admitted to bail in respect of these extradition proceedings. The grounding affidavit was not sworn until 26th March, 1996.

71. On 14th October, 1996, whilst on bail in respect of the proceedings the Applicant was arrested under the provisions of section 30 of the Offences Against the State Act, 1939. He was released on the following day but was re-arrested at common law for an offence of falsely imprisoning one Michael Lyons. On 16th October, 1996, he was purportedly charged before the Special Criminal Court and remanded in custody. It was subsequently ascertained that one of the judges sitting on the Court had previously tendered his resignation to the Government and that had been accepted. Therefore, he ought not to have been sitting as a member of the Special Criminal Court. Arising from that the Applicant brought proceedings in this Court seeking to be released but I dismissed his application. The matter then went on appeal to the Supreme Court and my decision in that regard was affirmed. This took place on 7th November, 1997.

72. Meanwhile preparations for the Applicant's trial before the Special Criminal Court on the charge of false imprisonment were proceeding. The trial was due to commence on 11th November, 1997. It was deferred to the next day. The chief prosecution witness against the Applicant failed to turn up for the trial on 12th November, 1997, and after two further adjournments the Director of Public Prosecutions entered a nolle prosequi on 12th December, 1997. In the meantime, the Applicant had commenced further proceedings arising from the decision of the Special Criminal Court given on 29th October, 1997, in the case of D.P.P. v. Kavanagh. These Article 40 proceedings were heard by McGuinness J. who dismissed them on 10th November, 1997.

73. In the meantime the present proceedings remained on the books of this Court but had not been much advanced. A letter requesting discovery was sent on 22nd January, 1998. That was followed by a motion for discovery issued on 9th March, 1998. A hearing of that application took place on 30th April, 1998. From that there was an appeal taken resulting in a judgment being given by the Supreme Court on 29th October, 1998.

74. Finally a date was fixed for this case to commence on 4th May, 1999. The case had to be adjourned because late in the day the Applicant served a notice seeking to cross examine Mr. Nicholls Q.C. The hearing was re-fixed for 29th June, 1999, but on the morning of the hearing a further affidavit was filed by the Applicant dealing with the Good Friday Agreement necessitating yet another adjournment of the case.

75. The Applicant contends that the delay which has occurred is relevant not merely for the purposes of the subsection but also as an aspect of the constitutional right to fair procedures under Article 40.3.1 and Article 38.1 of the Constitution and also by reference to Article 6(1) of the European Convention on Human Rights.

76. There has, having regard to the above chronology, undoubtedly been a lapse of time since the commission of the offences alleged.

77. That view appears to be in accord with the authorities. In Kwok Ming Wan v. Conroy, Hamilton C.J. quoted with approval from the speech of Lord Diplock in Kakis v. Republic of Cyprus [1978] 1 W.L.R. 779 at 781 where he stated:-

78. In the High Court in Kwok Ming Wan v. Conroy (Unreported, High Court, Smyth J., 17th December, 1996) Smyth J. said, in the course of his judgment which was affirmed, that (at page 8):-

79. The trial judge obviously had regard to the fact that the Plaintiff had absconded from England in 1987 and had sought refuge in Ireland. Smyth J. went on to state (at page 8):-

80. Looking therefore at the lapse of time which has occurred it is clear that the Applicant absconded in July, 1991. The warrants were issued in April, 1993, when his whereabouts became known. He was dealt with on other charges in this jurisdiction and was sentenced to a term of four years in October 1993. Upon his release in November 1995 the warrants were immediately served upon him. Within a month the rendition order was made by the District Court. Then began these proceedings in December, 1995, which did not come to hearing for a full four years thereafter. Neither side appeared to move with great despatch in bringing them on. It took well over three months for the grounding affidavit to be sworn. The principal replying affidavit took another four months and then the proceedings lay fallow. Admittedly the Applicant was from October, 1996, until December, 1997, involved in other legal proceedings in this jurisdiction arising out of the charge of false imprisonment. However, there was no good reason for these proceedings not to be advanced during that period. It was not until January of 1998 that the Applicant's request for discovery was made resulting in an appeal to the Supreme Court which was decided in October of that year. There were then two hearing dates fixed in this Court both of which had to be aborted at short notice as a result of the late service of the Applicant's notice to cross examine and the filing of an additional affidavit on the morning of the second hearing date.

81. Looking at the delays which have occurred overall it seems to me that the bulk of responsibility for them lies at the feet of the Applicant. I do not think that he can rely on his unlawful escape and being at large for twenty months, nor his time in custody before and after his trial in the Special Criminal Court amounting to a further two years and seven months, as a ground for holding that it would be unjust or oppressive or invidious to deliver him up. These proceedings were not then prosecuted with any degree of vigour. Whilst the Respondents do not appear to have done much to move them on, the primary obligation to do so lies with the Applicant.

82. It is of course true that it is now over nine years since the date of commission of the offences the subject of Judge Verney's warrants and over eight years since those the subject of Mr. Bartle's warrants. But those time scales alone do not of themselves mean the Applicant can rely upon the relevant statutory provision. It is, for example, to be noted that in the case of Fusco v. O'Dea the Applicant escaped from lawful custody in June 1981; his proceedings were not commenced until 1992 and were ultimately disposed of in the Supreme Court in February 1998 with the Applicant's claim being dismissed.

83. I hold that there has here been a lapse of time since the commission of the offences specified in the warrant but since the bulk of it is attributable to the Applicant's own conduct either of commission or omission he cannot legitimately complain under this heading. Lest, however, I am wrong in that conclusion I will now go on to consider if there are other exceptional circumstances in which it would having, regard to all of the circumstances be unjust, oppressive or invidious to deliver the Applicant up under section 47 of the Act. In considering this aspect of the matter I will assume (contrary to what I have just held) that he is entitled to rely upon the "lapse of time" provision of the Act.

84. Two particular circumstances have been urged upon me as amounting to "other exceptional circumstances" or constituting circumstances which would justify the making of an order under section 50. The first of these relates to the publicity that the Applicant has attracted in the media in the United Kingdom and the second relates to the Criminal Justice (Release of Prisoners) Act, 1998. I will consider each in turn.

85. This aspect of the matter falls to be considered both under the application for release under section 50 of the Extradition Act and in the context of the separate judicial review proceedings which were brought by the Applicant but which were tried at the same time.

86. In essence it is suggested that if the Applicant were to be extradited he would not be able to obtain a fair trial on account of the massive and sustained prejudicial publicity which has been generated in England.

87. There can be no doubt but that there was huge publicity given to inter alia the Applicant's arrest at Stonehenge in October 1990, his charging and Court appearances thereafter, the Brixton escape which took place in July 1991 and the report of Judge Tumin, Her Majesty's Inspector of Prisons, into that escape. Subsequently, between August and November, 1991, there were reports concerning a prison officer who was allegedly working for the Special Branch and who was involved in the escape. There were also television programmes dealing with all of these topics. There was then coverage in January and February, 1992, of the trial of the Applicant's co-accused. He was acquitted and that in turn achieved publicity.

88. In April, 1993, there was extensive coverage of the Applicant's arrest in Ireland. There was also coverage of the bail applications and trials which followed. There was then speculation in the press in 1994 and 1995 concerning the possible early release and other developments. There was coverage in November and December of 1995 of the Applicant's release and re-arrest. This coverage was not confined to the print media but there was extensive radio and television coverage also and all of these have been deposed to in affidavits and many of the press reports have been exhibited. In addition in the course of the hearing I also viewed a video tape concerning much of this material.

89. The publicity was universally antipathetic to the Applicant. It would not be feasible to reproduce it here in any extensive fashion since to do so would make an already long judgment unwieldy. However, it can be said that many of the press reports carried headlines which referred to the Applicant as one of "an I.R.A. pair", "I.R.A. escapers", "provos" and even "mad dogs". Posters which were issued by the police showed the Applicant and McCauley under the heading "terrorism - wanted for escaping from Brixton Prison".

90. In the light of this extensive and sustained prejudicial publicity the Applicant says that it would now be impossible to find a jury in England whose views had not been coloured or influenced by such publicity thereby rendering a fair trial impossible. This publicity he believes assumed and asserted that he was guilty of the charges which had been made against him and upon which he is now sought to be rendered to the United Kingdom authorities. He says that the amount of prejudicial publicity has been so great and damaging and has continued over such a long period of time that it is not capable of being countered by a charge from a trial judge and there is, therefore, a grave risk of a breach of his rights under the Constitution and in particular his right to a fair trial. Indeed in the judicial review application it is asserted that even at the time of the Applicant's initial arrest in October, 1990, there was such extreme and prejudicial publicity concerning him that the then Attorney General in England wrote to the media seeking to restrain the publication of such material lest it might prejudice criminal proceedings against the Applicant.

91. In pressing this part of his case the Applicant relied heavily upon the judgment of Flood J. in Magee v. O'Dea [1994] 1 I.R. 500 at 510-512. There Flood J. in dealing with the question of a fair trial free from bias said as follows:-

92. Flood J. then considered the prejudicial aspect of the newspaper coverage. He then went on to say (at 512):-

93. There can be little doubt but that the publicity in this case is every bit as lurid if not more so than that which obtained in Magee's case. It was also very extensive and carried on for a long period of time. Much of it was contained in the tabloid press but not by any means all of it.

94. When looking at this of course I must have regard to the "fade factor" referred to in the judgment of Flood J. Because of the lapse of time many years have passed since this publicity was generated. Furthermore, there is evidence which was placed before me which was not before Flood J. demonstrating the considerable safeguards which exist in English law and practice so as to ensure that the right to a fair trial is preserved. The evidence of Mr. Clive Nicholls Q.C. demonstrates that these take a number of forms. They are:

95. Insofar as the first of these is concerned it is open to an accused who alleges that his trial will be unfair because of adverse media publicity to apply to the trial judge for the proceedings to be stayed as an abuse of process. Whilst the jurisdiction is regarded as exceptional and to be used sparingly and only for compelling reasons the fact is that it has been operated in a number of cases of adverse pretrial publicity.

96. Insofar as jury selection is concerned Mr. Nicholls gave evidence that in certain trials a practice was adopted of providing the jury with a written questionnaire. In cases involving terrorist offences it has been the practice of trial judges to compose a list of appropriate questions and to address them orally to the panel of jurors from which the jury for the case is to be drawn. They are directed inter alia to matters which may form the basis of potential bias arising from adverse publicity. In the course of his evidence he gave examples of the sort of questions that are posed to deal with such a risk.

97. As was recognised by Flood J. judicial directions are given in the course of the trial and in the summing up so as to ensure a fair trial. Just as the Supreme Court here has made clear, it is not to be assumed that jurors would treat such directions lightly or would be incapable of following them. Neither should the ability of a jury to adjudicate solely on the evidence adduced before it be underestimated.

98. Mr. Nicholls evidence makes it clear that it is open to an accused who alleges that his trial has been rendered unfair by means of adverse publicity either before or during the trial to appeal to the Court of Appeal, Criminal Division and to have his conviction quashed or to apply for a re-trial. He gave examples of cases where such orders were in fact made.

99. In the present case, he pointed out that the offences alleged in the warrants include offences in respect of which the Applicant had been committed for trial by a magistrate and stands indicted and offences in respect of which he had not been committed or indicted. If the Applicant is rendered to the United Kingdom authorities he will face committal proceedings before a magistrate and, if committed for trial, be tried in respect of the offences dealt with in Mr. Bartle's warrants. He points out statutory restrictions concerning the reporting of the committal proceedings.

100. Mr. Nicholls was cross examined by Mr. Forde. I am satisfied on the basis of his evidence that the rights which an accused person has in England and Wales and outlined by him in his evidence are rights of substance which have been enforced by the English Courts in the past. I do not accept that these rights are honoured more in the breach than in the observance or that they pay lip service only to the principles in question. The case law cited by Mr. Nicholls demonstrates the principles being put into action. Indeed it seems to me that the rights in question are broadly similar to the rights which an accused person would have in this jurisdiction.

101. Finally, it should be noted that notwithstanding the assertions concerning adverse publicity, the Applicant's co-accused was tried and acquitted in respect of the offences dealt with on Judge Verney's warrants.

102. In these circumstances I have come to the conclusion:

103. I have therefore come to the conclusion that the Applicant has failed to make out under this heading either exceptional circumstances or circumstances which would render it unjust, oppressive or invidious to deliver him up.

104. Furthermore, I am satisfied that he is not entitled to the relief claimed in the judicial review proceedings which I have already outlined.

105. The next part of the case which is made by the Applicant relates to an agreement reached in multi-party negotiations at Belfast on 10th April, 1998 (Good Friday) concerning the situation in Northern Ireland. In that agreement there is a section entitled "Prisoners". It makes provision:

106. The agreement provides for a review process to advance or accelerate the release dates of prisoners who qualify for consideration under the scheme. Such prisoners are those convicted of scheduled offences or their equivalent. The section goes on to provide that:

107. The Applicant contends that the offences in respect of which it is sought to extradite him are "similar offences" to scheduled offences and the Plaintiff if convicted of them would be "a qualifying prisoner" under the terms of the agreement.

108. The evidence is that all qualifying prisoners who formerly resided in the State and who were convicted in England and Wales have been transferred to prisons in the State. Many have availed themselves of the provisions of the appropriate legislation which gave effect to this agreement. That is the Criminal Justice (Release of Prisoners) Act, 1998.

109. Evidence has been given of a substantial number of prisoners convicted of serious offences in England and Wales who have now been released under the accelerated release scheme contemplated in this Act.

110. It is said that if the Plaintiff were extradited to England and convicted of the charges against him he would be entitled to apply for transfer to this State. He would expect to be so transferred in accordance with the practice developed in relation to qualifying prisoners. On transfer to the State the question of accelerated release for the Plaintiff would fall to be considered under the statutory provisions. It is for the Minister for Justice, Equality and Law Reform to designate him as a "qualifying prisoner". It is said that the Minister has already accepted the Plaintiff as the equivalent of a qualifying prisoner because he granted him early release from imprisonment in 1995, after he had served just over two years of the four year sentence imposed in October, 1993, by the Special Criminal Court. It is further said that all qualifying prisoners who have not been released under this scheme will be released on or about 13th July 2000. If, therefore, the Applicant is extradited and convicted of the offences for which his extradition has been ordered, he will as a matter of probability be transferred back to the State and would be released on 13th July of this year if not before then. Accordingly, it is said that it is now a fruitless exercise to extradite the Applicant.

111. It is said on behalf of the authorities that it cannot be anticipated in advance what decision the Minister might make in any particular case or what advice he might receive from the Release of Prisoners Commission. It is for the Minister to specify in any particular case whether a prisoner is to be identified as a "qualifying prisoner" or not. It is submitted that it would not be a fruitless exercise to extradite the Applicant in respect of the offences for which his extradition has been ordered. The person who swore to this latter piece of evidence is Mr. John Kenny, an acting Principal Officer in the Department of Justice, Equality and Law Reform. He was cross examined on his affidavit. The following exchange took place between him and counsel who cross examined him.

112. Later in the cross examination these various "ifs" were explored further in order to demonstrate the probability of transfer and release in the event of rendition, trial and conviction for the offences in suit.

113. For reasons which I will advance in a moment, it does not appear to me to matter much whether the course suggested by the Applicant is a possibility or a probability. First, it is to be noted that the benefits of this agreement are applicable only to convicted persons. Conviction is a prerequisite to the operation of the scheme. It does not seem to me that the scheme attempts to interfere with or dilute the notion that persons accused of offences should be tried for them. Neither does the scheme attempt to interfere in any way with the rendition of persons in respect of whom an extradition request has been made under Part III of the 1965 Act. It would not be appropriate for this court to extend the terms of the 1998 Act and the scheme in effect to persons awaiting trial. The 1998 Act does not provide for this and it should not be expanded so to do by the court.

114. Even if the benefits of this scheme are applicable and available to the Applicant in the manner suggested, that does not appear to me to be a good reason for refusing rendition. The entitlement of the requesting State to have a person accused of serious criminal offences tried is a benefit which is not to be measured in the context of an application for rendition. If, as a result of arrangements made by the requesting State, the penalty imposed by the courts of that State (if a conviction is recorded) will be foreshortened, is not a reason for ordering release, thus denying to the requesting State an ability to have a trial in respect of the offences. I do not accept the notion that a release should be ordered because any custodial sentence which might be imposed will be served only in part.

115. In the course of the testimony of Mr. Kenny it was made clear that releases of transferred prisoners pursuant to this agreement and legislation have all been effected under the 1960 Criminal Justice Act. The effect of this is that the prisoners are released subject to conditions. The conditions are that they keep the peace, be of good behaviour and do not in any way cause distress or annoyance to victims of their crimes. A breach of these conditions leaves them liable to immediate arrest and committal to prison. Given that the release is in these terms and not absolute, it seems to me that it cannot be said that the Applicant's extradition would be futile simply because the custodial sentence to be served by him would be likely to be the subject of an early release.

116. It was also suggested that it would be unjust, unfair, oppressive and invidious to order the rendition of the Applicant in circumstances where as a matter of likelihood he will be remanded in custody in England to await his trial in circumstances where if he is convicted he will be released shortly thereafter. I do not see how it can be said that that is unjust, oppressive, unfair or invidious to the Applicant given his history. Finally there is in my view nothing in the suggestion that is made to the effect that it would be discriminatory to require him to go through a trial process where it is likely that he will be released shortly after conviction (if such occurs) whilst other persons who have actually been convicted are already released on licence. The Applicant will be dealt with in precisely the same way as the other persons if he is convicted. There is no discrimination as between convicted persons. Persons who have not yet been convicted cannot avail themselves of the terms of the agreement but must proceed to trial.

117. For the reasons which I have already given, I have therefore come to the conclusion that the Applicant is not entitled to his release and has not demonstrated to me that the conditions of Section 50 (2) (bbb) have been made out.

118. Insofar as the Court has an inherent jurisdiction over and above the statutory provisions I do not here find any circumstances which would render it improper, oppressive, unfair or otherwise inappropriate that the Applicant should not be rendered up to the appropriate authorities. Neither is there anything present which would warrant an order for the release of the Applicant by reference to his constitutional rights. I therefore refuse the reliefs which were sought both in the Special Summons and in the Judicial Review proceedings. These applications are dismissed.