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1. The Plaintiff issued a Special Summons on 11th May, 1999 the relief claimed being an order directing his release pursuant to the terms of Section 50 of 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). Section 50 as amended provides as follows:-

2. The Plaintiff seeks his release pursuant to the provisions of Section 50 (2) (bb) and (bbb). He claims that there are substantial grounds for believing that his position would be prejudiced by reason of his race and in addition or in the alternative that by reason of lapse of time since the commission of the offence specified in the warrants and other exceptional circumstances it would having regard to all the circumstances be unjust, oppressive or invidious to deliver him up under Section 47 of the Act.

3. The Plaintiff is a British citizen of Jamaican decent and of Afro-Caribbean ethnicity. He is from Telford in Shropshire. In support of his claim under subsection 2 (bb) he relies upon the following matters. In 1990 he married an Englishwoman by whom he had one child. In 1992 the marriage was in difficulty and a barring order was obtained against him but not withstanding this he continued to visit his wife regularly. On one such visit he had an argument with his wife and the police were called and he was ordered by a police officer to leave the house after which the police officer returned into the house. Thereafter the Plaintiff continued to visit his wife but on one such visit received no reply although there was a light in the living room and he could hear music playing. He pulled aside the living room curtain through an open window and saw his wife and the same police officer naked on the floor. A fight with the police officer ensued and the police officer left. Later that day other police officers arrived and assaulted him. He was taken by them to the police station and left in a cell with two police dogs. In spite of requests he was refused access to a solicitor and a doctor. He was sentenced to three months imprisonment for breach of the barring order.

4. Following on from this incident the Plaintiff alleges that he was harassed by the police. On one occasion he was arrested for armed robbery and alleges that three police officers pointed guns to his head; he was told by one of them to run and that they would put a hole in him; he was called “a dirty black bastard”. During 1994 and 1995 he claims to have been harassed by the police in respect of other offences which he had not committed and in respect of which charges were not brought. During this time he was subjected to racial abuse by the police. In 1995 he was arrested for drunk driving in circumstances in which he says he had not been driving the car but had returned to the car during the course of a party for the purposes of obtaining a tape; he was charged, convicted and banned from driving for 18 months and put on probation for 12 months.

5. In December 1995 he was attacked by a group of men and wounded about the face with a stanley knife. He was told at the time that a police officer had sent a man to attack him.

6. The Plaintiff was cross-examined. From his evidence given in cross-examination it is clear that while in prison for breach of the barring order he made a complaint against the police officer involved with his wife. He was visited in prison by police officers enquiring into his complaint but he declined to assist them at that time preferring to wait until he had finished his sentence. Because of this the investigation of his complaint did not proceed and he did not seek to reactivate it. While he was refused access to a solicitor in the police station he said that this was because he refused to give his name and that one was ultimately provided for him. On all his court appearances he had been legally represented.

7. Having considered the Plaintiff’s affidavit and the evidence given by him in cross-examination I am not satisfied that there are substantial grounds for believing that his position would be prejudiced on account of his race by reason of antagonism towards him by individual members of the Telford police or the Telford police as a whole. Accepting the Plaintiff’s evidence the antagonism which exists between himself and members of the Telford police must have originated as a matter of probability out of incidents involving the police officer and his wife and the fight which ensued and is not predicated on race. I am not satisfied on the evidence as a matter of probability that there are substantial grounds for believing that his position would be prejudiced for reason of his race even if it is the case that the Telford police have an antagonism towards him. The antagonism is however a circumstance relevant to my consideration of the application under Section 50 (2) (bbb).

8. In breach of bail conditions the Plaintiff left Telford in late June or early July 1996 and went to London. In January 1997 he came to Ireland where his girlfriend and two children were then living. While his girlfriend lived in County Antrim the Plaintiff lived first in Wexford for some 15 months and thereafter in Dundalk. He regularly visited his girlfriend in County Antrim.

9. Warrants were issued for the Plaintiffs arrest on the 21st October, 1998. The Plaintiff was arrested on the 19th January 1999 and ultimately on the 5th May 1999 an order pursuant to the Extradition Act 1965 Section 47 (1) was made for his delivery into the custody of a member of the constables of the West Mercia Constabulary. The offences in respect of which the Plaintiff’s extradition is sought are as follows:-

10. With regard to the first mentioned offence the Plaintiff claims that he was unaware of any police activity in relation to the alleged co-conspirators Messrs Thomas, Flanagan and Thomas until he read of their trial in May 1997 and that in January 1997 he was not aware that the trial was pending. On the balance of the probability I do not accept this. The Plaintiff's girlfriend is a sister of Flanagan and she was in contact with the Plaintiff between January and May 1997 and as a matter of probability brought it to his attention. Again as a matter of probability I find that the accused was aware that the police were anxious to make contact with him in relation to the offences with which he is charged. The most likely reason for his deciding to live first in Wexford and then in Dundalk and to make visits to his girlfriend in Co. Antrim rather than to live in County Antrim was to reduce the possibility of him being arrested in Northern Ireland and being brought to trial. In any event while on a visit to his girlfriend in County Antrim in February 1998 an occasion arose when he had to give his name and address to the Police and he was informed by his girlfriend that the day following the police were looking for him. Thereafter he remained in this jurisdiction as he told me in evidence he thought he could not be arrested in this jurisdiction.

11. The lapse of time relevant to Section 50 (2) (bbb) is that between the commission of the offence and the date of the hearing of this application. The dates specified in the warrants issued in the United Kingdom in respect of the three offences mentioned are between 1st August, 1995 and 7th August, 1996, between 1st January, 1996 and 1st May, 1996 and between the 1st March, 1996 and 31st March, 1996 respectively. On his own evidence the Plaintiff left Telford in breach of probation terms in late June or early July 1996. He was arrested in the Metropolitan Police Area in September 1996 but at that time gave a false name and address and was released from custody before his true identity was established. I do not have sufficient evidence to find it probable that the reason for his failing to disclose his true identity was to prevent his being apprehended at that time in respect of one or more of the offences in respect of which his extradition is sought.

12. In all the circumstances I am satisfied that the lapse of time from early September 1997 to date was due to the Plaintiff having decided from September 1997 to remain out of the jurisdiction of the United Kingdom, apart from visits to his girlfriend in County Antrim, with a view to avoiding arrest. In Kwok Ming Wan -v- Conroy (1998) 3 I.R. 527 Hamilton CJ quoted with approval the following passage from the Judgment of Diplock LJ and Kakis -v- Republic of Cyprus (1978) 2 ALL ER 634/638 :-

13. The lapse of time between the respective dates of the commission of the alleged offences and early September 1997 is not of itself so great as to render the Plaintiff’s extradition unjust, oppressive or invidious. It might however be rendered so by special circumstances. The special circumstances urged upon me by Council on behalf of the Plaintiff were as follows:-

14. I take the circumstances mentioned at 3 and 4 into account also for the purposes of Section 50 (2) (bb) : I have already considered the circumstances at 1 and 2 for the purposes of that provision. In relation to all these circumstances I have an affidavit of David Perry a practising barrister at the Bar of England and Wales as to the safeguards which exist within the Criminal Justice System in the United Kingdom. I am satisfied taking these safeguards into account and giving full weight to the submissions of Counsel for the Plaintiff that the circumstances relied upon as special circumstances even if accepted in full as special circumstances when taken in conjunction with the lapse of time would not justify my forming an opinion that it would be unjust, oppressive or invidious to return the Plaintiff to the United Kingdom. Further with regard to the circumstances at 1 and 2 these are matters which can be dealt with at the trial by the Plaintiff’s Counsel and are pre-eminently matters which are best dealt with by a jury. In these circumstances it is not necessary as the section requires for me to have regard to all the circumstances as all the circumstances urged upon me by Counsel have been considered by me as special circumstances.

15. The Plaintiff has failed to satisfy me on the balance of probability that by reason of the lapse of time since the commission of the alleged offences up to the date of the hearing before me and by reason of other 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 on the basis of Section 50 (2) (bb)

16. For the purposes of Section 50 (2) (bb) I have already considered the circumstances at 1 and 2. With regard to the circumstances at 3, 4 and 5 I am satisfied on the basis of the affidavit of David Perry that there are adequate safeguards within the Criminal Justice System in the United Kingdom. The Plaintiff has failed to satisfy me on the balance of probability that there are substantial grounds for believing that he would be prejudice on account of his race. I refuse the relief claimed on the basis of Section 50 (2) (bb) also.