THE HIGH COURT
			1998 No. 442 Sp
IN THE MATTER OF THE EXTRADITION ACTS, 1965-1994
BETWEEN
ANDREW MARTIN
			PLAINTIFF
AND
NOEL CONROY AND MICHAEL JONES
			DEFENDANTS
AND
THE HIGH COURT
			JUDICIAL REVIEW
			1998 No. 401 JR 
BETWEEN
ANDREW MARTIN
			APPLICANT
AND
JUDGE MIRIAM MALONE AND THE ATTORNEY GENERAL
			RESPONDENTS
JUDGMENT of Mr. Justice Herbert delivered the 1st day of May, 2001.
THE FACTS:
	It is alleged against the Plaintiff in these proceedings that in a 47 day period between the 4th November, 1988 and 22nd December, 1988, in England, he had in his possession or under his control an explosive substance, in the form of a movement activated improvised explosive device, with intent to thereby to endanger life or cause serious injury to property in the United Kingdom or to enable any other person so to do.  It is further alleged that in the same period the Plaintiff conspired with Nicholas Robert Neil Mullen and others to cause, by explosive substances, explosions of a nature likely to endanger life or cause serious injury to property in the United Kingdom.
	In giving oral evidence relating to his application for a Certificate under the Attorney General’s Scheme, the Plaintiff stated that he returned from London, where he had gone in the summer of 1988, to Ireland, sometime in November 1988.  Though no evidence in that behalf was given by the Plaintiff, either orally or on Affidavit, it was accepted by both sides, - or at least the arguments proceeded upon the basis, - that whenever the Plaintiff returned to Ireland he lived here openly.  The Plaintiff is now about 35 years of age, he is an unemployed general operative and is unmarried.  His father is living in the greater Dublin area.  He has three siblings whose addresses were not given to the Court.
	In June, 1990 Nicholas Robert Neil Mullen was convicted of offences similar to those alleged against the Plaintiff in these proceedings and was sentenced to a term of 30 years imprisonment.  Eamon Wadley was acquitted on related charges.
	The Plaintiff was arrested in this State on the 29th June, 1994 at Swanlinbar, in the County of Cavan, and was charged with the unlawful possession of firearms contrary to the provisions of Section 30 of the Offences Against the State Act, 1939.  He was subsequently convicted of this offence and sentenced to a term of 5 years imprisonment.
	On the 22nd August, 1994, by Statutory Instrument 220 of 1994, the Extradition (Amendment) Act, 1994, (No. 6 of 1994), became operative in this State.  This Act provided that certain offences where no longer to be regarded as ‘political offences’ or ‘offences with a political connection’ for the purpose of extradition to territories which included the United Kingdom.
	In July, 1995 the Crown Prosecution Service for England and Wales received from the Metropolitan Police a file relating to the Plaintiff.
	In December, 1995 the Crown Prosecution Service for England and Wales determined that there was a realistic prospect of obtaining a conviction against the Plaintiff.
	On the 18th December, 1995 warrants were issued by Bow Street Magistrates Court in England for the arrest of the Plaintiff pursuant to the provisions of Section 3(a) and Section 3(b) of the Explosive Substances Act, 1883, as amended by Section 7 of the Criminal Jurisdiction Act, 1975, (England), in respect of the aforementioned allegations.
	On the 22nd March, 1996 an Assistant Commissioner of An Garda Siochána authorised the execution of these warrants in this State.
	On the 28th March, 1998 the Plaintiff was released from Portlaoise Prison on the expiry of his sentence and was immediately re-arrested on foot of these warrants.
	On the 10th April, 1998 at Belfast an Agreement was concluded between the Government of Ireland and the Government of the United Kingdom of Great Britain and a Northern Ireland which has become popularly known as the “Belfast” or “Good Friday” Agreement.
	Consequent upon the provisions of this Agreement, whereby both Governments agreed to enact appropriate legislation to provide for an accelerated programme for the release of certain, “qualifying prisoners”, the Criminal Justice (Release of Prisoners) Act, 1998 (No. 36 of 1998), came into operation in this State on the 13th July, 1998.
	On the 23rd June, 1998, District Judge Malone made Orders pursuant to Section 47(1) of the Extradition Act, 1965, (as substituted by Section 12 of the Extradition (Amendment) Act, 1994), for the delivery of the Plaintiff into the custody of a member of the Constables of the Metropolitan Police for conveyance to Bow Street Magistrates Court, England.
	On the 24th June, 1998 the Plaintiff issued a Special Summons pursuant to the provisions of Order 98 of the Rules of the Superior Courts, 1986, seeking his release in reliance upon the terms of Section 50 of the Extradition Act, 1965.  On the 29th October, 1998 by originating Notice of Motion pursuant to the provisions of Order 84 Rule 18 of the Rules of the Superior Courts, 1986, the Plaintiff sought, consequent upon the leave granted in that behalf by the Order of the High Court, (Mr. Justice McCracken), made the 19th day of October, 1998;
     1.	An Order of Certiorari by way of an application for Judicial Review of the Order of  District Judge Malone made on the 23rd day of June, 1998 directing the extradition of the Applicant to England on a charge of conspiracy with others between the 4th November, 1988 and the 22nd December, 1988 to cause explosions likely to endanger life or property.
     2.	An Order of Certiorari by way of an application for Judicial Review of the Order of District Judge Malone made on the 23rd day of June, 1998 directing the extradition of the Applicant to England on a charge of possession of an explosive substance with intent to endanger life or property between the 4th November, 1988 and the 22nd December, 1988.
     3.	An Order consolidating these proceedings with proceedings taken by the Applicant in this Honourable Court seeking his release pursuant to the provisions of Section 50 of the Extradition Act, 1965-1994, which proceedings had been given the Record No. 442 Sp - 1998 and are entitled “Between:- Andrew Martin, Plaintiff and Noel Conroy and Michael Jones, Defendants”.
     4.	An Injunction restraining District Judge Malone and the Attorney General from delivering up the Applicant for extradition on foot of the Order made in that connection by District Judge Malone on the 23rd June, 1998.
     5. 	Such further and other relief as to this Court may seem meet and just.
These reliefs were sought upon the ground that:-
	“The first named Respondent, Judge Miriam Malone erred in law and exceeded her jurisdiction in ordering the extradition of the Applicant to England in that there was no, or no sufficient evidence, before the first named Respondent that the Applicant was the person described in the warrants dated the 18th December 1995”.

	At the hearing before me, Counsel for the Applicant informed the Court that the Applicant was no longer relying upon this ground and an application was made to the Court, pursuant to the provisions of Order 84 Rule 23(2) of the Rules of the Superior Courts 1986, for leave to amend the grounds upon which relief was sought by the substitution of the following grounds:-
	“The first named Respondent, Judge Miriam Malone erred in law and exceeded her jurisdiction in ordering the rendition of the Applicant in that:
     (i)	there was no, or no sufficient evidence that the offences specified in the warrants were committed at all or that they were committed by the Applicant.
     (ii)	The Orders made by the first named Respondent Judge Miriam Malone, are defective on their face in that they fail accurately to set out offences known to the law or which correspond to offences under the law of England and Wales and they fail accurately to describe and identify the Applicant and are not made in accordance with law in that:
          (a)	There is no Section 3(1)(a) or Section 3(1)(b) of the Explosive Substances Act, 1883;
          (b)	The Statement of Offence in each case fails to correspond to the wording of the 1883 Act particularly in relation to mens rea;
          (c)	In the second last paragraph the Applicant is mis-described.”

	Having heard legal argument by Counsel representing the Applicant and Counsel representing the Respondents, in an extempore Judgment delivered on the occasion I refused the relief sought, in summary, upon the grounds that:-
     1.	The first proposed substituted ground was without substance and was one which would not have been permitted at the stage of seeking leave to apply for Judicial Review as it was not a matter which could properly have been addressed by the learned District Judge in exercise of her Jurisdiction, and further, that insufficiency of evidence before the Inferior Tribunal is not a basis for relief by way of Judicial Review, (Shannon -v- Ireland (1984) I.R. 548:  Lennon -v-  Clifford, (1992) 1 I.R. 382).
     2.	That there had been substantial delay since the Order of the High Court, (Mr. Justice McCracken), made on the 19th October, 1998 granting leave to seek Judicial Review upon the now abandoned ground.
     3.	That no “exceptional circumstances” were shown to exist by Affidavit or in Argument before the Court as to why the proposed amendments should be permitted notwithstanding this delay, (McCormack -v- Garda Siochána Complaints Board (1997) 2 I.R. 489, per Costello, P., and O’Leary -v- The Minister for Transport, (2000) 1 I.L.R.M. 391, per Kelly J.).
	In these circumstances the only issue remaining to be determined by this Court is the Application by way of Special Summons for relief pursuant to the terms of the extradition Acts, 1965-1994.
	
SUBMISSIONS
	The Plaintiff in seeking his release relies principally upon the passage of time between the date of the alleged offences in November and December 1988 and the date of the execution of the warrants on the 28th March, 1998, a period of 9¼ years, which his Counsel submit is contrary to the terms of Section 50(2)(bbb) of  the Extradition Act, 1995.  His Counsel submit that a delay of this magnitude renders it unjust, oppressive or invidious that he should be delivered up to the Requesting Authority.  They further submit that it is a denial of the right of the Plaintiff to fair procedures as guaranteed by Article 40.3.1. and Article 38.1. of the Constitution of Ireland, 1937 and Article 6.1., of the European Convention on Human Rights.  They also submit that this Court has an inherent jurisdiction as exemplified by the case of Quinlivan -v- Conroy and Sreenan, (1999) 1 I.R. 271, (Supreme Court) per O’Flaherty, J., page 280, apart from and in addition to Section 50 of the Extradition Act, 1965, to refuse a request for extradition upon considerations of justice and equity, and that this jurisdiction should be exercised in favour of the Plaintiff.
	Additionally, the Plaintiff relies upon what he alleges are defects on the face of the Warrants and the Orders of the District Court which have the effect that correspondence is not established between the offences specified in the warrants and offences under the Law of this State, so that he is entitled to be released having regard to the provisions of Section 50(2)(c) of the Extradition Act, 1965.
It is submitted on behalf of the Respondents that:-
     1.	At the time the warrants were issued by the Relevant Authorities in the United Kingdom, and transmitted to the Authorities in this State the Plaintiff was in custody in the State and remained in custody until the 28th March, 1998 when, upon his release, the warrants were executed.  In these circumstances Counsel submitted that there was no “lapse of time”, such as to trigger the possible application of Section 50(2)(bbb), of the Extradition Act, 1965.
     2.	The requirements of Section 50(2)(bbb) of the Extradition Act, 1965, are cumulative and in addition to establishing “lapse of time” within the meaning of the subsection, the Plaintiff must establish the existence of other “exceptional circumstances” such that it would, “having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under Section 47”.
     3.	No “exceptional circumstances” are established by the material before the Court.  That none of the matters adverted to in the Plaintiff’s Affidavits come anyway close to establishing any of the matters recognised as constituting such “exceptional circumstances”, nor any other matter or circumstance that would render his return to the United Kingdom “unjust, oppressive or invidious”.
     4. 	In the case of Ellis -v- O’Dea, (1991) I.L.R.M. 346 at 370/72, the Supreme Court had held expressly that the very offences alleged in the instant case, (namely offences under Section 3(a) and Section 3(b) of the (United Kingdom), Explosive Substances Act, 1883 correspond to offences in this Jurisdiction, namely, the equivalent offences under the same Act, which, (as amended) remains in force in this State).

THE LAW
	Section 50, subsection 1 and subsection 2 of the Extradition Act, 1965, amended with regard to the latter subsection by Section 9 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, (No. 1 of 1987), by the insertion of an additional subparagraph, “(bb)”, and by Section 2(1) of the Extradition (Amendment) Act, 1987, (No. 25 of 1987), by the insertion of a further subparagraph, “(bbb)”, provides as follows:-
  50-(1)	A person arrested under this part shall be released if the High Court or the Minister so directs in accordance with this section.
       (2)	A direction under this section maybe given by the High Court where the Court is of opinion that -
            (a)	The offence to which the warrant relates is -
	(i) a political offence or an offence connected with a political offence, or 
	(ii) an offence under military law which is not an offence under ordinary criminal law, or
	(iii) a revenue offence, or
           (b) 	There are substantial reasons for believing that the person named or described in the warrant will, if removed from the State under this Part, be prosecuted or detained for a political offence or an offence connected with a political offence or an offence under military law which is not an offence under ordinary criminal law, or 
           (bb)	There are substantial grounds for believing that the warrant was in fact issued for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinion or that his position would be prejudiced for any of these reasons, or
           (bbb)	By reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under Section 47, or 
           (c)	The offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least 6 months.
	The provisions of Section 50(2)(bbb) of the Extradition Act, 1965, were subjected to a careful consideration by Denham, J., in the course of her Judgment in Fusco -v- O’Dea, (No. 2), (1998) 3 I.R., 470, (Supreme Court), where she held as follows, (page 508 of the report):-
	“The section requires that in addition to the lapse of time that there should be “other exceptional circumstances” such as to enable the exemption to apply.  It is for the Plaintiff to prove that the exemption applies on the balance of probabilities.  The section requires that there be “other exceptional circumstances”, not “other circumstances”.  The fact that the exemption is defined so strongly is in keeping with the nature of extradition where once the executive branch of Government has made a policy decision that extradition or rendition agreements exist between two countries and the legislature has passed the requisite legislation, extradition becomes mandatory subject to the law and the Constitution. Thus, it is understandable that exemptions are so strongly defined in the legislation.  However, they must be strictly construed.  The word “exceptional” indicates that the exemption will be rare, will be the exception, unusual.  The words “unjust, oppressive or invidious” have meanings which overlap to some extent.  However, they too are words imbuing a sense of force or power.  I do not intend to attempt to give a definitive definition of these terms.  However, it appears to me that they suggest certain concepts.  Thus, “unjust” suggests, inter alia, unfairness, a lack of fair treatment.  “Oppressive” indicates actions that, inter alia, are oppressing a person, or a group of persons, treating them badly, or cruelly, keeping them in subservience.  While “invidious” raises the concept of circumstances likely to cause a resentment, anger or envy, such situations may arise if there is, for example, discrimination.
	The exceptional circumstances must be identified.  It is clear that the learned Trial Judge considered the exceptional circumstances to be:  the decision of the authorities in 1981 to prosecute in Ireland on the escape offences and not to proceed with extradition on the murder and other offences, that this had in effect being communicated  to the Plaintiff, that the Plaintiff had a belief that he would not be extradited after his term of imprisonment in Portlaoise, that he had relied on it, that he had not been informed that he would be in jeopardy of extradition proceedings after his prison sentence.  The High Court held that these circumstances, together with his family circumstances, were exceptional circumstances so as to render his extradition unjust, oppressive or invidious.  The learned Trial Judge did not find it necessary to apply the issue of credit being granted in Northern Ireland for the time served in Portlaoise.”
	
	I adopt this succinct and elegant analysis of the law as expressed in Section 50  subsection (2), (bbb) of the Extradition Act, 1965.
	In considering whether by reason of the lapse of time since the commission of the alleged offences in November-December, 1988, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver up the Applicant on foot of the  warrants executed on the 28th March, 1998, in my judgment, I must have regard not alone to the extent of the delay but also to the reason or reasons for it.  It could scarcely have been the intention of the Legislature in framing this subsection that this Court should weigh in the balance in favour of an Applicant a lapse of time which was wholly or substantially due to the conduct of that Applicant.  In my judgment the only lapse of time to which this Court may have regard in considering the subsection is such as is not attributable to any significant extent to the Applicant or is due to some unnecessary or blameworthy delay on the part of the Relevant Authorities in the Requesting state and additionally or alternatively the Relevant Authorities in this State.
	In considering the actual 9¼ year lapse of time in the present case, I adopt the methodology indicated by Denham J., in Dalton -v- The Governor of the Training Unit and Others, (29th February, 2000) (Supreme Court: No. 29/99: unreported/Judgment available), a case of a delay of approximately 2 years and 9 months following the issue of domestic default warrants and their execution, where at page 10 of the Judgment the learned Judge held as follows:-
	“The President divided up the delay into ........ periods of time for analysis.  This is an appropriate approach to the analysis of an alleged delay.  However, in addition, the overall delay may be considered either as a single time frame or in conjunction with an analysis of particular sections of the time in issue.  Thus, the learned Trial Judge did not err in his approach to the matter.”

	The Plaintiff, in the verifying Affidavit sworn on the 10th November, 1998 grounding the Special Summons avers that the warrants seeking his extradition were issued on the 18th December, 1995, that is 7 years after the latest date of the alleged offences in respect of which his extradition is sought and 18 months after his arrest at Swanlinbar, County Cavan, on the 29th June, 1994 on charges of unlawful possession of firearms.   He states that to his knowledge no attempt was made to execute these warrants in the state until the 28th March 1998.  He complains that what he describes as, “a very lengthy” delay would seriously disadvantage him in the conduct of his defence against the charges made against him in England.  
	Richard Edwin Glenister, Barrister, of the Crown Prosecution Service in a replying Affidavit sworn by him on the 3rd February, 1999, offers no explanation whatever for this delay of 7 years in issuing the warrants, that is between the 22nd December, 1988 and the 18th December, 1995.  I must view this unexplained delay in the context of mr. Mullen and Mr. Wadley having been brought to trial in England in or prior to June, 1990;  in the context of contacts between the London Police and the Zimbabwe Central Intelligence Organisation on the 6th January, 1989 and thereafter to secure the summary deportation of Mr. Mullen from Harare to London and in the context of the conviction of Mr. Mullen on the 8th June, 1990 at the Central Criminal Court.  The foregoing facts I have ascertained from the Judgment of Lord Justice Rose, in R. -v- Mullen, (1999) 2 Cr. App. Rep 143.   It is also averred by the Plaintiff in his Affidavit sworn on the 10th November, 1998 and not controverted, that Mr. Wadley was jointly charged with Mr. Mullen, “on some counts” and was acquitted.
	This delay of 7 years in the issuing of the warrants is the first section of time which requires to be addressed in this case.
	In his Affidavit sworn on the 3rd February, 1999 Mr. Glenister avers that the warrants were issued by Bow Street Magistrates Court on 18th December, 1995 and delivered to An Garda Siochána, “shortly afterwards” and much in advance of the Plaintiff’s release from prison in March, 1998.  This is not disputed by or on behalf of the Defendants.  Detective Sergeant Michael Heffernan, in an Affidavit sworn on the 4th February, 1999, avers that there was no delay on the part of An Garda Siochána or any other relevant Authorities in this State in dealing with the request for extradition.  He avers that at the time the request for extradition was received the Plaintiff was a convicted person serving a sentence of imprisonment.  He further states that notwithstanding the granting of periods of temporary release to the Plaintiff it was the opinion of An Garda Siochána that the warrants could not be executed until the Plaintiff had fully served his sentence and was at liberty.
	Mr. Forde, Senior Counsel for the Plaintiff, argued at the hearing before me, that this was an error of Law on the part of An Garda Siochána and that the failure to execute the warrants as shortly as possible after they had been received amounted to an unnecessary and blameworthy delay on the part of the Relevant Authorities in this State which was seriously prejudicial to the Plaintiff.  This delay of shortly in excess of 2 years and 3 months, between the 18th December, 1995 or shortly thereafter, when the warrants were received by An Garda Siochána and the 28th March, 1998 when the warrants were executed upon the release of the Plaintiff from Prison having served the sentence imposed upon him, constitutes the second section of time to be addressed in this case.
	The overall delay between the 22nd December, 1988 being the latest date for the commission of the alleged offences charged in the warrants and the 28th March, 1998, the date of execution of the warrants, amounts to a period of slightly in excess of 9 years and 3 months.
	In my judgment it is not necessary for me to make any determination as regards the second section of time at issue in this case.  However, I would not in any event take this period of time into account as a “lapse of time” for the purpose of Section 50(2)(bbb) of the Extradition Act, 1965,  if it was the only period of delay involved in this case, because the detention of the Plaintiff in prison during this period was a consequence of his own acts.  But also, I have not been convinced that the Judgment of Hamilton, C.J., in Fusco -v- O’Dea, (No. 2), (1998) 3 I.R. 470 at 501 and 502, is authority for the proposition that extradition warrants may be executed at any time, however remotely, before the actual expiry of a prison sentence.  The Plaintiff has failed to satisfy me, the onus being on him, that what Denham, J., at page 525 of the Report in that Case, described as the, “normal practice to seek extradition of a prisoner at determination of a prison sentence”, is not also, in the vast majority of cases at least, the correct practice.  Indeed, leading Counsel for Mr. Martin accepted in argument that service upon release was the norm, but he submitted that just because it was the norm this could not be used to excuse delay where there was no legal inhibition to a much earlier execution of the warrants and where justice required such earlier execution.  In Ellis -v- O’Dea (1991) 1 I.L.R.M., 346 at 373, the then Chief Justice records that it was conceded on behalf of the Applicant in that case that the extradition warrants could not practicably have been executed until after the completion of the sentence been served by the Appellant.  I also adopt what was held by Denham J., at page 525 of the Report in Fusco -v- O’Dea (No.2) (above cited), where she said:-
	“There is neither injustice, nor oppression nor invidious behaviour in a State not giving notice in advance of an extradition application.  The authorities were not obliged to explain that the Plaintiff might be in jeopardy of future rendition.”

	However, I consider that there is a distinction to be drawn between a lapse of time entirely or substantially occasioned by the deliberate and voluntary actions of a person in seeking to evade discovery and a lapse of time referable to that person serving a term of imprisonment.  In my judgment while the former should always be entirely discounted some regard may be had to the latter in looking at the overall lapse of time, provided always that there is in addition a specific and separate particular lapse of time to be taken into account for which the accused is in no manner to blame or which is due to some unnecessary or blameworthy delay on the part of the Relevant Authorities in the Requesting State or in this State.
	In my judgment there can be no doubt but that the wholly unexplained lapse of 7 years in issuing these warrants, that is between the 22nd December, 1988 and the 18th December, 1995, is the sort of lapse of time envisaged by Section 50(2)(bbb) of the Extradition Act, 1965 as inserted by Section 2(1) of the Extradition (Amendment) Act, 1987.  Such delay is a negation of the right of the Plaintiff to a trial with reasonable expedition.  State (Healy) -v- Donoghue, (1976) I.R. 325 at 336 per Gannon, J.,: State (O’Connell) -v- Fawsitt, (1986) I.R. 362 (Supreme Court).: P.C. -v- The Director of Public Prosecutions, (1999) 2 I.R. 25 at 65, 66 per Keane, J., (as he then was),: B.F. -v- The Director of Public Prosecutions, (22nd February, 2001), (Supreme Court): (unreported - Judgment available), per Geoghegan, J.,).
	Despite this finding, the onus remains upon the Plaintiff to establish in addition some, “other exceptional circumstances”, which would render it unjust, oppressive or invidious to deliver him up.   As was pointed out by Denham, J., in the passage from Fusco -v- O’Dea (No. 2), to which I have already adverted, what is contemplated by this requirement of the subsection is something special and unusual.
	The Plaintiff points to a number of matters which it is submitted constitute such, “exceptional circumstances.”  These matters may be summarised as follows:-
     1.	His own difficulty, at such a remove in time, in recalling events in and prior to November and December 1988 and difficulties in tracing and obtaining witnesses, some of whom might now be dead or unavailable, compounded by the vague and unparticularised nature of the charges;
     2.	The change effected in the law of this State as of the 22nd August, 1994 by the enactment and coming into force of the Extradition (Amendment) Act, 1994, which removed from the category of non extraditable political offences the offences in respect of which his rendition is now sought;
     3.	The terms of the Agreement reached between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland on the 10th April, 1998, (commonly called the “Belfast” or the “Good Friday” Agreement), and the provisions of the Criminal Justice (Release of Prisoners) Act, 1998 under which he would probably have been released on or before the 13th July, 2000; and 
     4.	The probability of a long period awaiting trial in England during which time, he is advised and believes, he would be held in custody as bail is invariably refused in cases involving alleged I.R.A., bomb plots.
	I reject without hesitation the claim of lack of particularity and want of specifity in the charges preferred against the Plaintiff.
	Detective Sergeant Heffernan in an Affidavit sworn on the 4th February, 1999 avers that evidence was put before the learned District Judge which established that there was fingerprint evidence to link the Plaintiff with the offences for which his extradition was sought.  At page 10 of the Written Submission filed on behalf of the Defendants it is stated by reference to an Affidavit of Claire Gilligan, sworn on 4th December, 1998, that Detective Garda Kelly, Detective Garda Canning, Detective Sergeant Benton and Mr. Irvine formally of the Metropolitan Police, gave evidence to the learned District Judge that the Plaintiff was fingerprinted and fingerprints found in a premises in London were identified as belonging to the Plaintiff.  Apart from this I know nothing of the evidence by which the Crown Prosecution Service would propose to establish its case against the Plaintiff.  I want to emphasise, that in referring to these matters I am not seeking to explore or to adjudicate in any way on the merits of the charges against the Plaintiff and I am not drawing any conclusions as to whether the Plaintiff is innocent or guilty in respect of these charges. (Clarke -v- McMahon, (1990) 1 I.R. 228 at 235 per Finlay, C.J.).
	The Plaintiff points to no specific line or lines of defence in the conduct of which he claims to be unfairly prejudiced by the lapse of time in this case.  Unlike the situation in Kakis -v- The Government of the Republic of Cyprus, (1978) 1 W.L.R. 779, H. of L., to which reference was made by both sides during the course of argument; the State (O’Connell) -v- Fawsitt, (1986) I.R. 362, and (though with the material difference that this involved sexual offences against a minor), M.K. -v- Judge Groarke and The Director of Public Prosecutions, (13th September, 2000) (Kearns, J.; unreported; Judgment available), the Plaintiff has not identified or sought to identify any particularly essential witness or indeed any witness who is now unavailable.  While it is generally true that the ability to recall details of time, place, movement, events and people lessens progressively with the passage of time and that some persons capacity of recall fades faster than others, in the words of McGuinness, J., in J.L. -v- The Director of Public Prosecutions, (6th July, 2000), (unreported; Judgment available), “the right of an accused person to reasonable expedition in the prosecution of offences must be balanced with the communities right to have criminal offences prosecuted”, as to which exercise the legal principles have been set out by the Supreme Court in B. -v- The Director of Public Prosecutions, (1997) 2 I.L.R.M. 118.
	In Kakis -v- The Government of the Republic of Cyprus, (above cited), Lord Edmund-Davies stated as follows at page 785 of the report:-
	“The fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and oppressiveness of making an order for his return, whereas the issue might be left in doubt if the only known fact related to the extent of the passage of time, and it has been customary in practice to advert to that factor.”

	Despite the failure of the Plaintiff to demonstrate with any degree of particularity any actual or probable prejudice to his capacity to defend himself by reason of the passage of 7 years since the date of the alleged offences, in my judgment, it would still be unjust to deliver him up after such an unexplained delay.  In my judgment after such an unexplained delay and in the absence of the sort of special circumstances which arise in cases concerning sexual offences against minors, I am entitled in the words of Finlay, C.J., in The Director of Public Prosecutions -v- Byrne, (1994) 2 I.R. 236 at 244, to infer from the excessive length of time itself that the risk of an unfair trial has been established as a reality.
	In the same case the learned former Chief Justice stated the following principle of Law at page 245 of the Report, a principle which found approval with the present Supreme Court in the case of B.F. -v- the Director of Public Prosecutions, (above cited) at page 16, namely:-
	“...... I am driven to the further conclusion that, of necessity, instances may occur in which a delay between the date of the alleged commission of an offence and the date of a proposed trial identified as unreasonable would give rise to the necessity for a Court to protect the constitutional right of the accused by preventing the trial, even where it could not be establish either that the delay involved an oppressive pre-trial detention, or that it created a risk or probability that the accused’s capacity to defend himself would be impaired.  This must lead of course to the conclusion that, on an application to prohibit a trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude the issues which have to be determined.”

	In P.C. -v- The Director of Public Prosecutions, (1999) (above cited) it was held by Keane, J., (as he then was), at page 68 of the Report as follows:-
	“Manifestly, in cases where the Court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the Court will be whether it has been established that there is a real and serious risk of an unfair trial; that, after all, is what is meant by the guarantee of a trail “in due course of law”.  The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired.  In other cases, the first enquiry must be as to what are the reason for the delay and, in a case such as the present where no blame can be attached to the prosecuting authorities, whether the Court is satisfied as a matter of probability that, assuming the complaint to be truthful, the delay in making it was referable to the accused’s own actions.
	If that stage has been reached, the final issue to be determined will be whether the degree to which the accused’s ability to defend himself has been impaired is such that the trial should not be allowed to proceed.  That is a necessary enquiry in my view, in every such case, because, given the finding that the delay is explicable by reference to the conduct of the accused is necessarily grounded upon an assumption as to the truth of the complaint, it follows that, in the light of the presumption of innocence to which he is entitled, the Court asked to halt the trial must still consider whether the degree of prejudice is such as to give rise to a real and serious risk of an unfair trial”.

	Though these decisions arose entirely within the framework of domestic law where the Court was been asked to stay criminal proceedings against an accused upon grounds of delay, in my judgment the principles of law above stated are equally applicable to extradition cases.
	In reaching my decision, I am satisfied that the wholly unexplained dilatoriness of the Requesting Authorities in seeking extradition, together with the inferred reality of a real and serious risk of an unfair trial amount to, “exceptional circumstances”, within the meaning of Section 50(2)(bbb) of the Extradition Act, 1965.  This, in my judgment, is so if one considers only the first period of 7 years, but is overwhelmingly so if in addition one has regard to the overall lapse of time of 9¼ years.  (Hogan -v- The President of the Circuit Court, (1994) 2 I.R. 513).  I have noted that in the case of Kakis -v- The Government of the Republic of Cyprus, and other leading cases in Britain which have come before the House of Lords, the time lapse element was less than half that of the 7 years delay in the present case.
	Having so found, it is unnecessary for me to proceed further but as the matters have been extensively argued I propose to deal with each of the other alleged, “exceptional circumstances”.
	In my judgment the submission based upon the loss, by the changes effected in the Law in 1994 during the course of the 7 year delay, of the alleged defence that the offences charged were “political offences”  or  “offences connected with a political offence” is without merit.  No evidence whatever was placed before this Court by the Plaintiff, upon whom the onus lies, from which the Court could be satisfied that either of these offences was a, “political offence” , or “an offence connected with a political offence” (Maguire -v- Keane, (1986) I.L.R.M. 235 at 237.
	In the course of his judgment in Kakis -v- The Government of the Republic of Cyprus, (above cited) at page 785 of the Report, Lord Russell of Killowen said:-
	“Regard must be had to all the circumstances.  Those circumstances are not restricted to circumstances from which the passage of time resulted.  They include circumstances taking place during the passage of time which may (as I think here) give to the particular passage of time a quality or significance leading to a conclusion that the result would be unjust or oppressive.”
	
	However, in Fusco -v- O’Dea, (No. 2), (above cited), Denham, J., held as follows at page 525 of the Report:-
	“The developing law on the political offence exemption cannot be called in aid by the Plaintiff by way of arguing that in 1981/2 he would have benefited from the common law interpretation of the terms “political offence” or “connected with a political offence”.  The applicable law is the current  law.”
	
	And at page 517 of the Report the learned Judge said:-
	“The applicable law is the law when the application for extradition has to be considered.  
	In Bourke -v- Attorney General, (1972) I.R. 36, O’Dailaigh, C.J., at p. 59 stated:-
	“Cassels J., who delivered the first judgment in Kolczynski’s Case said a page 549 of the Report:-
	“The words “offence of a political character” must always be considered according to the circumstances existing at the time when they have to be considered.””
	
	He also noted at p. 55:-
	“The non-extradition of political offenders is primarily based on the fact that the criminal nature of the act is relative, depending on the peculiar conditions obtaining in the places and institutions in which the political offences were committed.”
	
	The law was restated by Finlay C.J., in Magee -v- Culligan (1992) 1 I.R. 223 at 237:-
	“The right of the Plaintiff, as of every other citizen, concerning the question of his delivery into another State for the purpose of serving a sentence lawfully imposed upon him in that State, was, the Court is satisfied, a right at any given time to proper, due and fair procedures concerning an investigation of the validity of the warrant in respect of which he is delivered, and to a fair, proper and due enquiry into the protections available in law, in parenthesis within the State at the time of the application for his delivery, which may afford him a protection arising from the concept of a political offence or from any other of the concepts appropriate to prevent such a delivery.” (the emphasis is mine).

	The application for delivery was made in 1992 so the time to consider the 		meaning of “political offence” or “connected with a political offence” in 		relation to the Plaintiff’s rendition is the current law.
	The learned Trial Judge stated at p. 479:-
	“Nor can the person sought to be extradited be heard to argue that his position cannot be altered or disimproved by reason of a change in the law.”
	“I agree.  The applicable law is the current law, the Plaintiff’s case is determined thereon.  He cannot rely on the older law or on the fact that it has changed.”
	
	In my judgment the argument based upon the provisions of the, “Belfast” or “Good Friday” Agreement and the Criminal Justice (Release of Prisoners) Act, 1998, cannot succeed for the reasons stated by Kelly, J., in the case Quinlivan -v- Conroy and Sreenan, (14th April, 2000) (The High Court: unreported: Judgment available), which I adopt.  The learned Judge held as follows:-
	“........ It does not appear to me to matter much whether the course suggested by the Applicant is a possibility or a probability.  First, is it 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.
	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, this 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........  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.”

	It was sought to distinguish the present case from that case on the grounds that in the latter case the conduct of the Plaintiff prevented the warrants been executed expeditiously, whereas it was argued that in the present case there was no inhibition to the warrants been so executed.  It was argued that if the Authorities here and in the Requesting State so acted the Plaintiff would, on the balance of probabilities, have been eligible for release on or before the 13th July, 2000.
	The Criminal Justice (Release of Prisoners) Act, 1998, came into force on 13th July, 1998.  The warrants were issued on the 18th December, 1995 but for the reasons to which I have already adverted were not executed until the release of the Plaintiff from a prison in this State on the 25th March, 1998.  The warrants were therefore executed prior to the inter Government Agreement of 10th April, 1998.  However, as I understood the argument the Plaintiff contends that if the warrants had been executed, as he says they ought, prior to his arrest, conviction and imprisonment in the State in 1994, and if he had been returned to England and if he had been convicted there, he would probably have been released on or before the 13th July, 2000.
	In my judgment, the fact that the Plaintiff may have to serve a possibly foreshortened sentence, (should that be in fact the case), now or in the future rather than at some time in the past decade, is no basis for refusing rendition.  The decision of the Supreme Court in the case of Sloan -v- Culligan, (1992) 1 I.R. 223 at 267/8, was based upon totally different facts and could have no possible application to the facts of this particular case.
	It was further argued that it would be unjust, oppressive or invidious to permit the rendition of the Plaintiff because it was alleged, he would be remanded in custody in England for more than a year pending trial.  The sole basis for this submission is an averment by the Plaintiff in his own Affidavit sworn on the 10th December, 1999, to the effect that he was aware, 
	“That in the case of Nicholas Mullen and of Eamon Wadley who was accused with Mr. Mullen on certain counts, it took 16 months and 17 months respectively for them to be brought to trial and I believe it would take a similar period for me to be brought to trial.  I further say and an advised and believe that bail in invariably refused in cases involving alleged I.R.A., bomb plots and that I would have to spend more than a year in custody in England awaiting trial.”

	The onus lies upon the Plaintiff to establish, to the satisfaction of the Court, on the balance of probabilities, that he would suffer such a period of pre-trial remand in custody.  In my judgment, this has not been established by what has been offered by the Plaintiff.  Even, however, if I were to proceed upon the basis that these assertions, as not denied in the replying Affidavit of Richard Edwin Glenister, are therefore accepted by the Requesting Authorities as true and accurate, I cannot see how such a delay as this could be said to be an, “exceptional” circumstance so as to render it unjust, oppressive or invidious to deliver up the Plaintiff.
	Finally, on the argument directed to lack of correspondence, in the case of Hanlon -v- Fleming, (1981) I.R. 489 and 495, (Supreme Court) Henchy, J., held as follows:-
	“The third point raises the question whether the specified offence has the required correspondence with an offence under the law of this State.  The relevant decisions of this Court, such as The State (Furlong) -v- Kelly, Wyatt -v- McLoughlin and Wilson -v- Sheehan showed that it is a question looking at the factual components of the offence specified in the warrant, regardless of the name given to it, and seeing if those factual components in their entirety or in their near entirety, would constitute an offence which if committed in this State, could be said to be a corresponding offence of the required gravity.”
	
	In my judgment the factual components of the offences specified in the warrants in this case, that is, the acts alleged, clearly correspond with offences under Section 3(a) and Section 3(b) of the Explosive Substances Act, 1883 as amended by Section 4 of the Criminal Law (Jurisdiction) Act, 1976, which are offences of the required gravity for the purposes of Section 50(2)(c) of the Extradition Act, 1965.  (Ellis -v- O’Dea (1991) I.L.R.M. 346 at 370, 372, (Supreme Court)).  In the absence of evidence which would give me some reason to believe to the contrary I must accept that the facts stated in the warrants are true. (Wyatt -v- McLoughlin, (1974) I.R. 378 at 395 per Walsh, J., (Supreme Court)).
	In my judgment therefore the Plaintiff has not succeeded in establishing any other, “exceptional circumstances” within the meaning of Section 50(2)(bbb) of the Extradition Act, 1965.