Armstrong v. A.G. & Anor [2002] IEHC 132 (18 January 2002)

HC132 Armstrong v. A.G. & Anor [2002] IEHC 132 (18 January 2002)

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Cite as: [2002] IEHC 132

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THE HIGH COURT

JUDICIAL REVIEW

Record No. 107 JR 1999

BETWEEN

MATTHEW ARMSTRONG

APPLICANT

AND

HIS HONOUR JUDGE PETER SMITHWICK AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE HIGH COURT

Record No. 621Sp 1998

IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACT, 1965 AS AMENDED

BETWEEN

MATTHEW ARMSTRONG

PLAINTIFF

AND

NOEL CONROY

DEFENDANT

JUDGMENT of Mr. Aindrias Ó Caoimh delivered on the 18th day of January 2002

THE JUDICIAL REVIEW PROCEEDINGS

By Order of the 22nd March, 1999 the applicant Matthew Armstrong was given leave by this Court (Mr. Justice O'Higgins) to apply by way of an application for Judicial Review for the relief of certiorari quashing an order of the first named respondent made on the 24th September, 1998 that the applicant be delivered into the custody of the Metropolitan Police pursuant to a warrant purporting to have issued on the 19th January, 1995 by a Magistrate sitting at Highbury Corner Magistrates' Court in the Inner London area. The grounds upon which leave was granted are as follows:-

1. The first named respondent erred in law in proceeding with the hearing of the extradition proceedings against the applicant in circumstances where the second named respondent indicated in writing to the applicant that the second named respondent was no longer relying upon the affidavit of Detective Constable Edwards which exhibited the warrant upon which the proceedings were based. In the circumstances there were no proceedings before the Court.

2. The first named respondent acted contrary to natural and constitutional justice in that he failed to grant to the applicant the opportunity to cross-examine Detective Constable Paul Edwards when the second named respondent indicated that he was relying upon the warrants as exhibited in the affidavit of Detective Edwards.

3. The first named respondent acted contrary to natural and constitutional justice in that he failed to grant to the applicant an adjournment for the purpose of obtaining a transcript of the trial of one Joseph Sherry who had been acquitted of the offence for which the applicant's extradition was being sought.

4 .That the reason given by the first named respondent for failing to grant the adjournment i.e. that the Metropolitan Police were not required to prove their case in the District Court amounted to a failure by the first named respondent to ensure due regard for the applicant's right to due process and to fairness of procedures. Furthermore, in refusing the adjournment for the said reason the first named respondent failed to have due regard to his constitutional obligation to ensure that the applicant's constitutional rights were vindicated.

5. In the circumstances the refusal of the opportunity to cross-examine Detective Edwards and the effective denial of the right to cross-examine Sergeant Johnson by virtue of the refusal to adjourn the said proceedings amounted to a denial of the applicant's right to audi alterantpartem.

The applicant has sworn an affidavit in the Judicial Review proceedings. On the 12th May, 1995 he was arrested at Bray, County Wicklow by Sergeant Kieran Kelly of the Crime and Security Branch, Garda Headquarters, Phoenix Park under a warrant which purported to have been issued by a Magistrate and Justice for the Inner London area at Highbury Corner Magistrates' Court on the 19th January, 1995. This warrant was backed by Assistant Commissioner Conroy with his apparent authorisation for the execution of the warrant by any member of the Garda Siochana on the 6th March, 1995. On the warrant it is alleged that on the 29th June, 1992 within the jurisdiction of the Central Criminal Court for England and Wales the applicant had in his possession a controlled drug of class A, namely 15.10 kilograms of brown powder containing diamorphine (heroin), with intent to supply it to another in contravention of Section 4(1) of the Misuse of Drugs Act, 1971 contrary to Section 5 (3) of the Misuse of Drugs Act, 1971. '

The applicant denies the offence alleged and when arrested he responded to the reading of the warrant by saying "completely untrue". He says that he was shocked to find that it is the intention of the Metropolitan Police in England and Wales to charge him with this offence. He says that subsequent to his arrest in May of 1995 he was granted bail by the High Court on the 31st May, 1995. In the course of the bail hearing Detective Constable Edwards gave evidence. It is stated that part of his evidence was that a warrant for the applicant had been issued in England in October of 1992 and that dealings between the officers of the two Attorneys General had caused delay. The applicant says that Detective Constable Edwards gave evidence that the warrant was subsequently withdrawn and the warrant of the 19th January, 1995 was subsequently issued. He says that the application for the hearing of the application for extradition was delayed because proceedings pending in the State against him were being processed and these were ultimately ended by entry of a nolle prosequi on the 15th July, 1997 by the Director of Public Prosecutions. The case against the applicant came on for hearing before the President of the District Court on the 12th February, 1998. Shortly before the hearing the applicant was served with an affidavit sworn by Detective Sergeant Simon Johnson of the Metropolitan Police on the 10th February, 1998. The applicant says that his counsel objected to the commencement of the hearing of the case on the basis that time was needed for the consideration of matters arising from the affidavit. It is pointed out that counsel for the Attorney General objected to the adjournment. In the circumstances the President of the District Court commenced hearing the extradition proceedings with the proviso that if it became necessary to grant a further adjournment on the hearing that same would be granted.

On the 12th February, 1998 Sergeant Kelly gave evidence similar to that which he had given on the 12th May, 1995. The applicant says that this witness was cross-examined by counsel on his behalf. Sergeant Kelly said that he was not aware when Assistant Commissioner Conroy had received the warrant. He said that he was only aware of the date that he had signed it, that is, the 6th March, 1995. Sergeant Kelly said that he himself only received the warrant on the 1 lth May, 1995 but he said that from the 6th March, 1995 to the 11th May, 1995 the warrant was in Garda Headquarters in that it would have been received by the Extradition Section. Sergeant Kelly said that he was aware that the applicant would be in Bray that day and he had seen him for about ten minutes before he arrested him. The applicant said that upon being asked by counsel to explain the delay in serving the warrant Sergeant Kelly said that he had no explanation. Sergeant Kelly said that he was not aware what steps were taken before the 11th and 12th May, 1995 to execute the warrant. He said that his function on that day in Bray was to execute the warrant.

Detective Sergeant Johnson gave evidence that he was involved with the South East Regional Crime Squad in Operation "Zulu Cricket". He gave evidence of having occasion to see the applicant on the 9th June, 1992 at the Churchill Hotel in Putnam Square. He saw the applicant with others in the street at Old Brompton Road that day. He identified the applicant as the person named in the warrant. It is alleged that he said that on a later date he went to County Fermanagh to liaise with the RUC about the applicant. (It was agreed in the hearing before me that the reference to the 9th June, 1992 in the applicant's affidavit should read the 29th June, 1992.)

Sergeant Johnson was cross-examined by counsel and said that he never spoke to the applicant and that his knowledge about him came from what he was told by others and from documents he had seen. He indicated that the only person arrested on the day of the alleged offence was an Alan Johnson. Sergeant Johnson said that he had travelled to France to interview one Joseph Sherry. Joseph Sherry had been acquitted of the offence alleged against the applicant. Sergeant Johnson indicated that he gone to Northern Ireland on the day after the arrest of Alan Johnson to deal with evidence in the case and not in fact to seek the applicant. He could not say exactly when they first began to seek the applicant but said that it was within six months of the 29th June, 1992. It was indicated that the police were certainly seeking the applicant by January of 1993 and possibly before that time. Sergeant Johnson said that he was not aware of the exact enquiries that had been made as to the location of the applicant. He furthermore was not aware of an earlier warrant which had issued for his arrest. He had no information on the enquiries or details on the issuing of the warrant in this case. The proceedings in the District Court were adjourned on the application of counsel for the applicant for further consideration of the matters arising out of the affidavit which had been served on the applicant on that same day and the matter was adjourned to the 28th May, 1998 for continued hearing.

A week after this hearing, on the 19th February, 1998 the applicant's solicitor wrote to the Chief State Solicitor enclosing a notice to cross-examine Sergeant Johnson and Detective Constable Edwards. The letter contained a request to be furnished with the documents referred to in paragraph 3 of Sergeant Johnson's affidavit and a request for information on how to obtain a copy of the transcript of the trial of Joseph Sherry. The Chief State Solicitor replied to this letter stating that the Attorney General would not furnish the statement and exhibits as requested. The letter also stated that as the application was no longer based upon the affidavit of Detective Constable Edwards he would not be made available at the continued hearing. On the 17th April, 1998 the Chief State Solicitor wrote to the applicant's solicitor with details concerning the transcript of the trial of Joseph Sherry. The letter indicated where the applicant could obtain a copy of the transcript in London. In the earlier letter from the Chief State Solicitor it was indicated that Sergeant Johnson would be available for cross-examination on the adjourned date.

The applicant says that his solicitors were unsuccessful in obtaining a copy of the transcript of Joseph Sherry prior to the adjourned date for the District Court hearing. No detail is given in this regard. He says that on the 28th May, 1998 counsel on his behalf applied for an adjournment on the basis that in the absence of the transcript it would not be possible to conduct a meaningful cross-examination of Sergeant Johnson. He contends that this information was highly relevant in light of the nature of the allegation that was being made against him, that is that he was the person who had negotiated the terms of the transaction and he was to receive the purchase money. The applicant points out that the President of the District Court refused the application on the ground that the police (and the Attorney General on their behalf) were not required to prove their case in the District Court.

The applicant further says that an application was made by counsel, firstly in relation to the fact that the Attorney General was not seeking to rely upon the affidavit of Constable Edwards and therefore that there were no proceedings before the Court as the warrant formed an exhibit to his affidavit and, secondly, that if they were relying on the warrant then Constable Edwards should be available for cross-examination. He says that counsel for the Attorney General informed the Court that they were relying upon the warrant but that in light of Sergeant Johnson's affidavit nothing further was to be gained from Constable Edwards. He says that despite objection by counsel on his behalf, the President of the District Court refused to allow a cross-examination of Constable Edwards.

The applicant points out that on the 31st May, 1995 during a bail hearing in the High Court Constable Edwards gave evidence to the Court to support an objection to the granting of bail. He says that there was no reason advanced by or on behalf of the Attorney General as to why Constable Edwards was unavailable for cross-examination in the District Court except for the proposition that they no longer were relying on his affidavit. He says that at that time Constable Edwards gave evidence that an earlier warrant had in fact issued for his arrest.

The applicant says that as no transcript was available his counsel was unable to proceed with a cross-examination of Sergeant Johnson. In this regard he contends that he was denied an opportunity to have his case placed before the District Court by virtue of the failure to adjourn the matter. The applicant further complains that as a result of the ruling by the first respondent

a) cross-examination of Constable Edwards was not permitted,

b) the Attorney General had earlier indicated that he was no longer relying on the affidavit of Constable Edwards,

c) that this position was reversed when Constable Edwards was not produced, and

d) as a result of the failure to make the relevant documents available his counsel was unable to effectively cross-examine Sergeant Johnson at all.

The applicant says that as a result of the rulings and the procedures adopted the only argument that counsel could make against his extradition at this point in time concerned a lack of correspondence between the offences alleged and the offences of possession with intent to supply a controlled drug in this jurisdiction. He says that the respondent judge ruled that there was correspondence and that he was making an order for extradition. The respondent judge indicated that he intended to remand the applicant in custody but his counsel referred him to the terms of the bail granted by the High Court on the 31st May, 1995. He indicates that at a later date the question of bail was clarified in the High Court where it was indicated that bail should continue pending the determination of these proceedings. He says that he returned to the District Court for the purpose of the making of the final Order by the President of the District Court. On several occasions the President was not sitting in the particular court or on the date. However, on the 24th September, 1998 an order for his extradition was made. Thereafter proceedings were commenced by the applicant under Section 50 of the Extradition Act. The applicant says that he is advised that he is not entitled to raise any question of fair procedures within the context of the Section 50 proceedings.

The only affidavit sworn by Detective Constable Paul Edwards relied upon by the applicants in the application for extradition is one sworn on the 19th January, 1995 in which he deposes as follows:-

1. "I was present and witnessed the signing by Anthony Evans Metropolitan Stipendiary Magistrate and Justice for the Inner London area, of the warrant which was issued at Highbury Corner Magistrates' Court, 51 Holloway Road, London N78JA, England on the 19th January, 1995 for the arrest of Matthew Henry Armstrong also known as Matthew Armstrong also known as Matt Armstrong now produced and shown to me and marked with the word and letter' warrant A' for which for the purpose of identification I have signed my name before making this affidavit.

2. The Metropolitan Police is the force for the place in which the said warrant was issued.

3. I make this affidavit from facts within my own knowledge."

Sergeant Kieran Kelly, a member of the Garda Siochana has sworn affidavit filed the 1st June 1999. In his affidavit he states that on the 10th May, 1995 Detective Inspector Kenneth Lambe of Bray Garda Station arrested the applicant on foot of a warrant issued by Judge Ballagh at Bray District Court on the 9th May, 1995. Detective Inspector Lambe then brought the applicant to Naas District Court where he charged him with the offences set out in Greystones Sheet 23/95 and the applicant was then remanded in custody to appear at Bray District Court on the 12th May, 1995. He says that he was informed by Detective Inspector Lambe that the applicant was appearing at Bray District Court on the 12th May and that there was a possibility that he might be granted bail. Consequently he went to Bray on that day for the purpose of executing the United Kingdom warrant referred to in these proceedings. He confirmed that Mr. Armstrong, the applicant herein, was then granted bail and was arrested by him on foot of the warrant. On the 18th July, 1997 a nolle prosequi was entered in respect of the charge the subject matter of Greystones charge sheet 23 of 1995. In the mean time on the 15th June, 1995 the rendition request by the United Kingdom in respect of the applicant was set down for hearing on the 30th November, 1995.

On the 30th November, 1995 counsel for the applicant applied for an adjournment on the ground that there were ongoing criminal proceedings in this jurisdiction and that it would be futile for the Court to embark upon a hearing when rendition could not in fact take place until those proceedings were determined. The solicitor appearing on behalf of the Attorney General objected to the adjournment, pointing out that the case had been set down for hearing five and a half months previously and that in the meantime the State had received no notification of an application for an adjournment and consequently had brought a witness from the United Kingdom. The solicitor for the State conceded that the State's position would not necessarily be prejudiced if an adjournment was granted. In these circumstances the presiding judge granted the adjournment sought and the rendition proceedings were then adjourned to the 25th January, 1996 for mention only. On the 25th January, 1996 the matter was again adjourned to the 22nd February, 1996 for mention only and on that date the matter was further adjourned to the 25th July, 1996 again for mention only. On the 25th July the case was yet again adjourned to the 6th November, 1996 for mention only and upon that date it was further adjourned by consent to the 18th February, 1997 upon which date it was yet again adjourned by consent for mention to the 3rd May, 1997. On the later date a bench warrant was issued for the applicant but was cancelled later in the day by the District Judge when the applicant turned up at about 3.50pm and the matter was adjourned for mention only to the 18th November, 1997 upon which date it was adjourned to the 25th November, 1997 to fix a date for hearing. On the 25th November, 1997 the rendition proceedings were finally fixed for hearing on the 12th February, 1998.

It is stated that all the adjournments were on the applicant's application save those expressed to be by consent.

The matter was substantially heard by the President of the District Court on the 12th February, 1998 and the matter was again adjourned upon the application of counsel for the applicant. At a resumed hearing on the 28th May, 1998 counsel for the applicant again made an application for a further adjournment on the ground that they were seeking a transcript of an associated trial and on the ground that they wished to cross-examine the maker of the affidavit verifying the signature of the magistrate who issued the warrant seeking the applicant's rendition which is part of Exhibit A in the affidavit of the applicant. It is stated that the President of the District Court refused this application for an adjournment and in doing so he referred to the applicant's counsel seeking a transcript of another trial and observed that it is not a requirement that the United Kingdom have to prove their case in the District Court. As regards the application to cross-examine the maker of the verifying affidavit he ruled that the applicant was not entitled to have oral evidence from the maker of the said affidavit. Counsel for the Attorney General then read the affidavit of Detective Sergeant Johnson, exhibit B in the applicant's affidavit, to the Court and in compliance with the applicant's notice to cross-examine the deponent, Detective Sergeant Johnson was tendered for cross-examination but was not cross-examined by counsel for the applicant.

The learned President of the District Court then ruled that there was a clear correspondence between offence in the warrant and Section 15 of the Misuse of Drugs Act, 1997 as amended. In his ruling the President also referred to paragraph 4 of the affidavit of Detective Sergeant Johnson. He then made an order for the applicant's rendition and directed that the fugitive be handed over to an officer of the Metropolitan Police after the expiry of fifteen days. The applicant was then informed of his right to appeal under the Extradition Act or to bring habeas corpus proceedings and he was also informed of his right to consent to his rendition. As there was an apparent ambiguity in the bail order of the High Court the learned President, at the request of the applicant's counsel refrained from making an order there and then and adjourned the matter to the 18th June, 1998.

Sergeant Kelly says, in case that there is any ambiguity about the matter, that at the hearing on the 12th February, 1998 the court was informed that an affidavit as to facts made by Detective Constable Edwards, in identical terms to the affidavit of Simon Johnson and exhibited in the applicant's affidavit was being withdrawn and the affidavit of Detective Sergeant Simon Johnson substituted therefore. Sergeant Kelly points out that the application for judicial review was delayed until two days before the expiry of the six months time limit for applying for an order of Certiorari. He says that in the premises that the averment in the applicant's affidavit in these proceedings for the hearing the application for extradition was delayed because proceedings pending in the State against him were being processed is grossly misleading. He says that the dilatoriness with which the rendition proceedings were processed were solely and exclusively a function of the applicant's procedural manoeuvering to stave off an order for his delivery to the United Kingdom. Sergeant Kelly says that the District Court was never told by anyone appearing on behalf of the Attorney General that the State was not relying upon the affidavit of Constable Edwards verifying the magistrate's signature on the warrant and if the applicant's affidavit is meant to convey otherwise, it is grossly misleading. He says that he cannot recall any such application being made by counsel for the applicant as that referred to in Section 14 of the applicant's affidavit. This relates to an alleged application to the affect that there were no proceedings before the court as the Attorney General was not seeking to rely upon the affidavit of Constable Edwards. He says that the State was at all material times relying upon both the affidavit of Constable Edwards, sworn on the 19th of January, 1995 witnessing and verifying the signature on the warrant and the affidavit as the facts sworn by Detective Sergeant Simon Johnson and dated the 1 Oth of February, 1998. He says that counsel for the applicant merely wanted to cross-examine Constable Edwards in relation to verification of the magistrate's signature and which was a further procedural manoeuvre to delay the proceedings. He says that the learned President of the District Court ruled as a matter of law that the applicant's counsel could not cross-examine Detective Constable Edwards in relation to his affidavit verifying the signature of the magistrate on the warrant for the applicant's arrest.

It appears that in the course of the proceedings in the District Court, a belief existed that a second affidavit, namely one with the facts sworn by Detective Constable Edwards and dated the 17th May, 1995 had been served upon the applicant's solicitors. It appears, however, that this belief was in error and in fact the affidavit had never been served and insofar as a letter had been sent to the applicant's solicitors it relied upon this mistaken belief in circumstances where it was proposed to rely upon an affidavit of Sergeant Johnson as to facts rather than the affidavit prepared by Detective Constable Edwards which was never served upon the applicant's solicitors. This position is verified by an affidavit sworn by Mr. Robert Eager, Solicitor, and an affidavit of the applicant sworn on the 23rd of July, 1999.

A replying affidavit of Michael Heffernan, Sergeant of the Garda Siochana, attached to the Extradition Section based at Garda Headquarters, Phoenix Park, Dublin 8 has been sworn on behalf of the respondents. In his affidavits he indicates that the affidavit sworn by Detective Garda Simon Johnson is identical in terms to the affidavit previously

sworn by Detective Constable Edwards. The affidavit of Detective Constable Edwards was sworn on the 17th of May, 1995 and has been referred to as 'the second affidavit'. He says that on the 12th of February, 1998 before the commencement of the rendition proceedings Sergeant Kelly personally served the affidavit of Detective Sergeant Simon Johnson on the applicant. He indicates in effect that the second affidavit of Detective Constable Sergeant Paul Edwards was not in fact served on the applicant.

It is clear that the District Court was informed that the State was relying on the affidavit of facts sworn by Detective Sergeant Simon Johnson. He expresses his belief that before the hearing of the case it was patently clear to everybody that the verifying affidavit of Detective Constable Paul Edwards and the affidavit as to facts tendered by Detective Sergeant Simon Johnson were the documents upon which the State was relying. He points out that Sergeant Kelly had tendered to the District Court the affidavit of Detective Constable Paul Edwards verifying the magistrate's signature together with the warrant and certificate of the magistrate's clerk. He says that on the 12th of February, 1998 Sergeant Kelly again gave evidence of having handed the applicant at the time of his arrest, copies of the warrant, the certificate and the verifying affidavit of Detective Constable Paul Edwards. He points out that Sergeant Kelly was not cross-examined on this aspect nor did he at any stage state or infer that the affidavit of Paul Edwards, verifying the magistrate's signature, had been withdrawn or replaced.

In the statement of grounds of opposition, filed on behalf of the Attorney General, it is submitted that the applicant's counsel was not entitled to have oral evidence in relation to the affidavit verifying the magistrate's signature and that the decision of the respondent judge was correct in law by virtue of provisions of Section 54 and 55 of the Extradition Act, 1965 as amended. It is clear that Sergeant Johnson was made available for cross-examination but not withstanding this fact the applicant declined through his legal representatives to cross-examine the said Sergeant Johnson.

Section 55 of the Extradition Act 1965 provides inter alia as follows;

55.- (1) In any proceedings, unless the court sees good reason to the contrary:

(a) A document appearing to be a warrant issued by judicial authority in a place in relation to which it is Part applies for the arrest of a person for an offence may, if the signature on the warrant is verified as indicated in subsection (1) of section 54, be admitted in evidence as such warrant and as having been duly signed and issued by a judicial authority in accordance with the law of that place;

(b) ...

(c) A certificate appearing to be given in accordance with subsection (2) of section 54 may be admitted as evidence of the matters certified therein,
without further evidence.

Section 54 (1) and (2) read as follows:

54. - (1) Where the Commissioner receives a document appearing to be a warrant issued by judicial authority in a place in relation to this Part applies, together with an affidavit verifying the signature on the warrant and appearing to be sworn before a person duly authorised to take affidavits by the law of that place, the Commissioner may, without further evidence, accept the document as being such warrant and as having been duly signed and issued by judicial authority in accordance with the law of that place and as evidence that the offence for which the warrant was issued is an offence under the law of that place and that the affidavit has been duly sworn before a person so authorised as aforesaid.

(2)A certificate appearing to be given by the authority or the clerk or other officer of the authority by which a warrant was issued, that the offence to which it relates is, by the law of the place concerned an indictable offence and not also a summary offence, or that it is a summary offence punishable by a specified maximum period of imprisonment may, without further evidence, be accepted by the Commissioner as evidence of the matters so certified.

A central issue in these proceedings is whether, having regard to the provisions of section 54 and section 55, the District Court was entitled to rely upon the warrant exhibited in the proceedings or whether it was incumbent upon the District Court to permit the applicant through his legal representatives to cross-examine the relevant officer who swore the affidavit verifying the signature on the warrant, namely, Detective Constable Edwards.

On behalf of the applicant it is submitted that the provisions of section 54 and section 55 as amended are not provisions on which the respondent can rely on for the failure to allow the cross-examination of Detective Constable Edwards. It is submitted that section 54 simply refers to documentation that the Garda Commissioner may accept without need for further proof, while section 55 allows the court to accept certain documents without further proof unless the court sees good reason to the contrary. It is submitted that the documents referred to in the sections do not include the affidavit verifying the signature. In support of his submissions counsel for the applicant refers this court to the provisions of Order 29 Rule 11 of the District Court Rules which provides as follows;

"In any proceedings brought before the court under the Extradition Acts, 1965 -1994 (other than an application for the issue of a warrant of arrest) the court may at any time, for such reasons as it thinks fit and on such conditions it thinks reasonable, permit the evidence of any witness to be given by affidavit and permit the affidavits of such witness to be read at the hearing. The court shall not, however, grant such permission when it appears that any party to the proceedings bona fide requires the production of the witness for cross-examination and that such witness can be produced."

It is submitted that Order 29 Rule 11 shifts the onus onto the person who is attempting to give evidence by way of affidavit to persuade the court that "for such reasons as it thinks fit" that the procedures should be adopted. In the circumstances of the instant case it is submitted that the second named respondent made no such application but incorrectly assumed an entitlement to give evidence on affidavit. Order 29 Rule 11 goes on to say that such permission shall not be granted where the person is bonafide required and that such witness can be produced. It is submitted that in the instant case the Detective Sergeant was bonafide required for cross-examination and no apparent reason was given why he could not give evidence at the particular time. It is further submitted by counsel that no inquiry was made as to whether the officer concerned could be available for cross-examination.

At the outset counsel for the applicant submitted that there was a failure to abide by the requirement that the procedures in the extradition proceedings be fair and in this regard reliance is placed upon the fact that the State did not furnish to the applicant the documentation referred to at paragraph 3 in the affidavit of Detective Sergeant Simon Johnson where in paragraph 3 he states that as a result of inquiries he and his colleagues obtained statements and exhibits from which he deposed to the matter set out at paragraph 4. At paragraph 4 it is stated "In association with others Armstrong was in possession of a quantity of heroin (diamorphine) which he had arranged to sell to another person for £650,000. Armstrong's role in the commission of the offence was to meet the buyer and to negotiate the terms of the transaction, and afterwards to receive the purchase money".

In support of the contention that fair procedures must prevail counsel has referred this court to the decision of the High Court in the case of The State (Gary McFadden) -v- The Governor of Mountiov Prison No. 11 [1981] ILRM 113. It is clear that the documentation referred to at paragraph 3 in the affidavit of Simon Johnson was not provided to the applicant at any stage. In particular counsel refers this court to the portion of the judgment of Barrington J. at p. 116 of the report where he states as follows:-

"The first thing a lawyer retained to represent a client in extradition proceedings will want to see would be the documents on foot of which the extradition proceedings were instituted, and he would want to have copies of these documents for study."

Further on the same page Barrington J. stated as follows:-

"The matters on which a District Justice must satisfy himself when exercising his jurisdiction under the Extradition Act were discussed in The State (Holmes) -v- Furlons /1967] IR 210. See in particular, the judgment of Walsh J., at p.223. The point on which he must satisfy himself would appear to include the following: (1) the validity of the warrant and associated documentation. (2) that the person who has been arrested is in fact the person named or described in the warrant, (3) that the offence described in the warrant corresponds with any offence under the law of the State which is an indictable offence or if punishable, on summary conviction, by imprisonment for a maximum period of at least six months. (4) If he is satisfied on the above points, he should then consider the question of the point of departure from the State."

It is submitted in the instant case that the refusal of the Attorney General to allow the documents or exhibits or even to ask the English authorities to consider supplying them means that the applicant in the instant case was never properly informed of the nature and the substance of the accusation and was rendered impotent in examining the issue of correspondence in the District Court by way of submission or by way of cross-examination. Further in his judgment Barrington J. referred to the decision of the then President of the High Court Finlay P. in the case of The State (Lane) -v~ Delap and to a report made by the President to the Supreme Court in that case dated the 25th July, 1979. At p.l11 of the report of this case a portion of the report of the President is quoted as follows:-

"On the face of the order for delivery dated 16th May, 1979, it appeared that the offence with which the prosecutor was charged corresponded with the offence of receiving, contrary to s.33 of the Larceny Act, 1916. Any decision to the contrary made by the learned District Justice would have been incorrect in law. In my view, therefore, even if it were established that the prosecutor had been deprived of an opportunity to make a legal submission to the contrary, this would not, in my view, constitute a want of natural justice. In reaching this conclusion I distinguish between the necessity to afford an opportunity to take evidence, cross-examine witnesses or make submissions of fact, and the necessity to afford an opportunity to make a legal submission on a point of law which only admitted of one conclusion."

In referring to the conclusion of Barrington J. in that case that the procedure followed fell short of constitutionally acceptable standards of fairness, with the result that the order made by the District Justice on foot of those procedures is invalid, counsel submits that in the instant case a similar conclusion should be reached that there was a procedure followed which fell short of constitutionally acceptable standards of fairness with the result that the order made by the President of the District Court should be quashed.

Counsel further referred this court to a portion of the judgment of Walsh J. in the case of Ellis -v- O'Dea [1989] I.R. 530 where at p.537 of the report he indicated that what was invoked in that case was the undoubted residual jurisdiction of the District Court to protect the constitutional rights of any person appearing before it. In that case Walsh J. stated at the end of p.537 that there must not only be a correspondence of offences but also a correspondence of fair procedures. He stated that no procedure to which the extradited person could be exposed may be one which if followed in this State, would be condemned as being unconstitutional. It is to be noted that in the case of Ellis and O 'Pea (supra) the Supreme Court rejected the submission that the applicant should have been furnished with the swom information on which the warrant for his extradition was grounded. It is to be noted also that in that case the Supreme Court held that the State authorities were not obliged to furnish the applicant's legal advisers with a sworn information so as to assist them in testing the validity of warrants which were presumed by statute to have been duly issued.

Dealing with the factual matters of the case the first issue raised is the failure on the part of the District Court to adjourn the hearing before it to allow the transcript of the trial of Joseph Sherry to be obtained. It is submitted in this regard that the applicant was entitled to seek to explore what facts were alleged against the applicant and in particular with a view to having a fair opportunity to prepare his defence and to consider the extent to which it would be possible to argue the issue of correspondence. It is submitted that the learned President of the District Court failed to respect the applicant's right to fair procedures and in refusing an adjournment did so on a wrong basis, namely, on one relating to submissions that had never been made. In this regard it is submitted that the President declined an adjournment on the basis that it was not necessary for the United Kingdom authorities to prove their case in the District Court.

It is submitted that in the instant case the warrant did not set forth sufficient facts to deal with the issue of correspondence and this necessitated the further affidavit of Simon Johnson. The next issue addressed by counsel for the applicant related to the withdrawal of the affidavit of Detective Constable Edwards. It is clear in the instant case that as a matter of fact the second affidavit of Constable Edwards was not served on the applicant or his legal representatives. The applicant's solicitor by letter of the 19th February, 1998 sought the cross-examination of Constable Edwards on his affidavit of the 19th January, 1995.

It is further submitted that the second named respondent has raised the issue that no submission was made to the first named respondent that the second named respondent was no longer relying on the affidavit exhibiting the warrant. It is submitted that this is a contested matter of fact for this court to decide. It is submitted that on the facts of the instant case it may be that the parties were at cross-purposes as to what was being relied upon and that where the learned President of the District Court could not have been aware of the true position of each of the parties that there had been a breach of the right to fair procedures. It is submitted that the letter received by the applicant's solicitor induced him to believe that the Attorney General was not relying on the verifying affidavit of the 19th January, 1995 sworn by Detective Edwards. It is stated that the matter became more confusing later on when it was indicated that the Attorney General was indeed relying on the affidavit of the 19th January, 1995 verifying the warrant and exhibiting same. It appears that the second affidavit of Detective Edwards which was not served is one that corresponds with the affidavit sworn by Simon Johnson and dated 12th February, 1998.

With regard to the letter suggesting the withdrawal of an affidavit of Detective Edwards it is submitted that the request to cross-examine him on his affidavit conveyed in the letter of the 19th February was a bona fide request. It is submitted, insofar as the learned President of the District Court made an order, the effect of which was to permit the admission of the affidavit but to preclude cross-examination of the deponent, that it did not address the requirements of the rules of the District Court and it is submitted that the order made was bad. It is submitted that the confusion in the case was compounded by the State's actions and that this court could not reasonably conclude that it did not have an effect on the making of the order by the learned President of the District Court refusing to allow counsel to cross-examine Detective Edwards.

Particular reliance was placed by counsel on the fact that Detective Edwards was described as the case officer. He was intimately involved with the entire proceedings and it was he who had apparently sought earlier warrants. He had attended the bail hearing in the High Court and gave evidence before that court in relation to the earlier matters. It is submitted that this court cannot conclude that the President impliedly found that the request to cross-examine was not a bona fide request.

In reply to the submissions made by counsel for the applicant Mr Patrick McCarthy, S.C. for the Attorney General has submitted that in the first instance there was no want of fair procedures in the proceedings in the District Court against the applicant. He points to the fact that the applicant while served with the affidavit of Simon Johnson on the 12th February, 1998 did not seek to cross-examine that deponent at a later stage when he was available for cross-examination on his affidavit. It is submitted that as a matter of fact the affidavit verifying the warrant and the warrant itself were in court at the time. The warrant was duly endorsed and all the appropriate statutory requirements that applied to it were carried out. It is submitted that there was no issue as to jurisdiction, there was no issue as to identification and that Sergeant Johnson was tendered and gave evidence in court and was available for cross-examination.

Counsel submitted that insofar as it was indicated to the District Court that the second respondent in these proceedings, i.e. the Attorney General relied on the affidavit of Constable Edwards, verifying the warrant, that this is an affidavit which carries the statutory presumptions. It is submitted, on the facts of the case that the first ground upon which the applicant moves, namely, that there were no proceedings before the District Court is inappropriately based. With regard to the alleged failure to allow the cross-examination of Detective Constable Paul Edwards on his affidavit it is submitted that insofar as this affidavit was only dealing with the verification of the signature, cross-examination was clearly not appropriate as it carried the statutory presumption and that there was no bonafide reason such as one going to jurisdiction that required cross-examination. Counsel for the Attorney General relies four square on the provisions of sections 54 and 55 of the Extradition Act.

With regard to the third complaint that the proceedings were not adjourned to permit the applicant to obtain a transcript of the trial of Mr Sherry, it is submitted that it is not the function of the District Court to examine the transcript in question or to obtain the transcript. In this regard it is submitted that there is no requirement that the requesting State has to prove its case in the District Court. Accordingly, it is submitted that there has been no failure on the part of the first respondent and that he did not act contrary to natural and constitutional justice in refusing to grant to the applicant an adjournment for the purposes of obtaining a transcript of the trial of one Joseph Sherry.

With regard to the fourth ground advanced that the reason given by the first named respondent for failing to grant the adjournment is that the Metropolitan Police were not required to prove their case in the District Court and that this amounted to a failure by the first respondent to ensure due regard to the applicant's right to due process and to fairness of procedures and further that in refusing the adjournment for the said reason the first respondent failed to have due regard to his constitutional obligation to ensure that the applicant's constitutional rights were vindicated, it is submitted that what was the true position is that the applicant was properly before the court, the warrant for his extradition continued to be relied upon and had been duly endorsed and that fair procedures in the circumstances were adhered to and that Sergeant Johnson was available for cross-examination.

It is submitted by counsel that the learned President of the District Court was correct in law, having regard to the provisions of s.47 of the Extradition Act, 1965 as amended, which provides that the District Court is only concerned with the offences specified in the warrant, and dealing with the procedure he has to be concerned with the matters referred to in the judgment in the case of Ellis-v-O'Pea (supra) and in the case of The State (McFadden) -v- The Governor of Mountjoy Prison (supra). Counsel submits that the matters to be addressed are (1) the validity of the warrant and associated documentation, (2) that the person who has been arrested is in fact the person named or described in the warrant, (3) that the offence described in the warrant corresponds 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 six months and (4) If the court is so satisfied on the above points that the court should then consider the question of the point of departure from the State. On this basis it is submitted that the learned President of the District Court was correct in law in refusing the adjournment sought and that the request for the obtaining of the transcript was to address matters other than that to be addressed by the District Court.

With regard to he fifth ground relied upon by the applicant, namely, .hat the refusal of the opportunity to cross-examine Detective Constable Edwards and the effective denial of the right to cross-examine Sergeant Johnson by virtue of the refusal to adjourn the proceedings amounted to a denial of the applicant's right to audi alterampartem, counsel, having already addressed the issue of the cross-examination of Detective Edwards, submits that with regard to the cross-examination of Detective Sergeant Johnson that as a matter of fact he attended the District Court on the 28th May, 1998 in light of the notice to cross-examine him and was tendered for cross-examination. The applicant's counsel had no questions to ask of the witness on this occasion. It is submitted that it is inconsistent with such an approach for the applicant now to complain about failure to enable the cross-examination of Detective Sergeant Johnson to take place.

Conclusions in relation to the Judicial Review

In the first place dealing with the aspect as to whether the State was relying upon the initial affidavit of Detective Constable Edwards it is dear ma, while the letter from the Chief State Solicitor's Office may have given the impression that it was not intended to rely upon this affidavit it, must have been abundantly clear when the matter came before the District Court that the letter was in error insofar as it may have suggested otherwise. I am accordingly satisfied that there were in fact proceedings before the court upon which the grounding affidavit of verification of Detective Constable Edwards was in evidence in support of the application for extradition of the applicant. I am satisfied that if there was any misapprehension in relation to this matter that it did thereafter become abundantly clear that the State sought, to rely upon this affidavit. If it was understood that the only verifying affidavit of the signature of the magistrate was not being relied upon this would be tantamount to the State indicating that it was not proceeding with the application for the extradition of the applicant. This clearly was not the tenor of the letter from the Chief State Solicitor and accordingly it must have been abundantly clear that there was an apparent error in the letter from the Chief State Solicitor's Office. The affidavit of Detective Constable Edwards verifying the signature of the magistrate was an essential proof that had already been proved before the District Court in the extradition application prior to the letter in question from the Chief State Solicitor's office. Accordingly, I believe that this ground must fail.

With regard to the second ground namely that the respondent, the President of the District Court, acted contrary to natural and constitutional justice in failing to grant the applicant the opportunity to cross-examine Detective Constable Edwards I am satisfied in the first instance, that insofar as his affidavit was concerned, it was essentially in support of the warrant and it was an affidavit coming within the terms of s.55(l)(a) of the Extradition Act, 1965 and it was one upon which the District Court was entitled to rely unless it was to see good reason to the contrary. The affidavit effectively verified the signature of the magistrate issuing the warrant. I am satisfied in the circumstances that these sections apply to same. The District Court Judge was entitled to rely upon the affidavit and there was no necessity to permit the deponent to be cross-examined in relation to same and in fact, no matter has been put before this court calling into question the essential matter deposed to, namely, the verification of the signing by Anthony Evans, Metropolitan Stipendiary Magistrate and Justice for the Inner London Area of the warrant issued at Highbury Corner Magistrates' Court on the 19th January, 1995 for the arrest of the applicant. It is clear from the evidence that at no time was any case made that the matters deposed to by Constable Edwards were in issue in the proceedings in the District Court and, furthermore, in the proceedings before this court no case has been made that these averments are incorrect.

With regard to the third point relied upon namely the submission that the respondent Judge of the District Court acted contrary to natural and constitutional justice when he failed to grant to the applicant an adjournment for the purpose of obtaining a transcript of the trial of one Joseph Sherry, who had been acquitted of the offence for which the applicant's extradition had been sought, I am satisfied that the applicant had sufficient time if he wished himself to pursue a course of obtaining this transcript. I am furthermore satisfied that there was no obligation on the part of the State to obtain the transcript or furnish it to the applicant or his legal representatives. I believe that the matter is similar to that pertaining in the case at Ellis vO'Dea (supra) where it was asserted that the applicant in that case was entitled to a sworn information. In that particular case the Supreme Court rejected the particular submission. I am furthermore satisfied that there is no substance to the case that this transcript was necessary for the court and the defendant in the proceedings before the District Court to address the issue of correspondence of offences. In light of this fact I believe that the learned President of the District Court was correct in refusing to adjourn the case for the purposes of obtaining this transcript as this transcript would at best serve the purpose of indicating the evidence that might available to the prosecution in the prosecution proposed against the applicant.

This leads to the fourth ground, namely, the assertion that the reason given by the first named respondent for failing to grant the adjournment, that is, that the Metropolitan Police were not required to prove their case in the District Court amounted to a failure by the first named respondent to show due regard for the applicant's right to due process and fair procedures and furthermore, in refusing the adjournment, the first named respondent failed to have due regard to the constitutional obligation to ensure the applicant's constitutional rights were vindicated. I am satisfied that the only purpose for which the transcript could have been used by the applicant in the District Court would be to address the evidential basis of the charges against him and in no way has it been shown to me that this was necessary to deal with the issue of the correspondence of offences. I am, therefore, satisfied that the applicant was accorded due process and fair procedures in the District Court and that his constitutional rights were vindicated by the respondent judge.

The final ground relied upon is that the refusal of the opportunity to cross-examine Detective Constable Edwards and the effective denial of the right to cross-examine Sergeant Johnson by virtue of the refusal to adjourn the proceedings, amounted to a denial of the applicant's right to audi alterantpartem. I am satisfied that the refusal of the opportunity to cross-examine Detective Constable Edwards did not give rise to any violation of the applicant's right to a fair hearing in the District Court. I am furthermore satisfied that the applicant was given a full right to cross-examine Sergeant Johnson on his affidavit. I am satisfied that this right was not availed of in the circumstances where he was tendered for cross-examination. I am satisfied that there was no obligation to adjourn the hearing further to enable the applicant to get a copy of the transcript of the proceedings of the trial of Mr Sherry.

In conclusion I am satisfied that in all the circumstances this application by way of Judicial Review must fail and that notwithstanding the clear error in the letter from the Chief State Solicitor's Office relating to the affidavit of Constable Edwards that the applicant cannot succeed in this application and I refuse same.

THE SECTION 50 PROCEEDINGS

With regard to the s.50 proceedings the plaintiff advances two grounds of application to this court by reference to s.50(2)(bbb) and subsection (2)(c). The first of these relates to an alleged lapse of time since the commission of the offence specified in the warrant and other exceptional circumstances. It is submitted that it would, having regard to all the circumstances, be unjust oppressive or invidious to deliver up the plaintiff under s.47 of the Act and by reference to subsection (2)(c) it is pleaded that the offence specified on 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 six months.

The essential facts in this case are as follows:

On the 12th day of May, 1995 the plaintiff was arrested at Bray, County Wicklow by Sergeant Kieran Kelly under a warrant which purported to have been issued by a London Magistrate on the 19th January, 1995. This warrant alleges that on the 29th June, 1992 within the jurisdiction of the Central Criminal Court for England and Wales the plaintiff had in his possession a controlled drug of class A, namely 15.10 kilograms of brown powder containing diamorphine (heroin) with intent to supply it to another in contravention of s.4(l) of the Misuse of Drugs Act, 1971.

The plaintiff is a native of Northern Ireland and was in fact a member of the Royal Ulster Constabulary. He asserts that he is not guilty of the offence alleged against him or any other offence relating to the possession or supply of drugs. He says that he was shocked to find that it is the intention of the Metropolitan Police in England and Wales to charge him with this offence. The plaintiff details the fact that he joined the RUC but left the RUC in about 1967 or 1968. He says that he became a motor dealer in Belfast and stayed in this trade for a number of years having left the RUC. He became involved in running a number of public houses in Portadown and in Tempiepatrick in County Antrim. In 1978 he sold the pubs and moved to Dublin. He has an Irish passport and has had one for the last twenty years. It appears that the plaintiff lived in Spain for about eleven years, after which he moved back to Ireland. He was involved in a business in Enniskillen which apparently failed. He believed that he had been defrauded by others and that in due course he would receive substantial compensation. He took High Court proceedings which came on for trial in 1994 and ran for a period of three weeks at the end of which he was unsuccessful. He says that during and after the trial there was much publicity and his name and address was referred to in the national newspapers and magazines.

In his affidavit the plaintiff gives his own version of events in relation to dealing with other individuals, Alan Johnson and Joseph Sherry. He states that he kept Superintendent Conroy of the RUC in Belfast informed of his involvement with Johnson and Sherry. He says that on the 29th June, 1992 Johnson had agreed to meet with an individual called Miguel and states that he was supposed to collect £650,000 from an individual called Carlos. He says that on that occasion he got a lift in a lorry to Ireland. He believed that the individual Carlos was working with one of the authorities. He says that he did not believe that he was a criminal and that he had no real spending money. He believed that the individual Miguel had been involved in 'a sting' and he had introduced Johnson to Miguel.

Mr Johnson was apparently arrested on the 29th June, 1992 and the plaintiff states that he believes that on that date the Metropolitan Police came to Enniskillen where they searched his home and his business premises. He says that at no time did the police go near his home or his business. He says and believes that many people connected with Johnson were questioned except his family. He was aware that Johnson was arrested. He was living in Dublin and Sherry came to see him and he was panicking. He maintained contact with Sherry and also with Superintendent Conroy. His business was gone and his marriage was in difficulty. He says he visited Enniskillen on a number of occasions but was never arrested or spoken to by the local police. Johnson pleaded to an offence of possession of heroin with intent to supply during the course of his trial. Joseph Sherry was acquitted of the offence of possession with intent to supply. The plaintiff says that he remained in Dublin from 1992 onwards and began to settle here with another business selling cars. He says that during this time he was not in any way hiding but in fact maintained a quite public face through the court case as mentioned. He says that his photograph appeared in local newspapers as well as the Farmers Journal.

The plaintiff says that his case for extradition came on for hearing before the President of the District on the 12th February, 1998. He says that shortly before the hearing he was served with an affidavit sworn by Detective Sergeant Simon Johnson of the Metropolitan Police on the 10th February, 1998. He states that in the course of the District Court proceedings Sergeant Kelly gave evidence but indicated that he was not aware when Assistant Commissioner Conroy, the defendant herein, received the warrant in question. He said that he was only aware of the date that he had signed it, namely, the 6th March, 1995. He points out that Sergeant Kelly said that he himself only received the warrant on the 11th May, 1995 and indicated that from the 6th March, 1995 to the 11th May, 1995 the warrant was in Garda Headquarters in that it would have been received by the Extradition Section. Sergeant Kelly was aware that the plaintiff would be in Bray on the date that he was arrested and had seen him for about ten minutes before he arrested him. He states that Sergeant Kelly offered no explanation for the delay in serving the warrant. Furthermore, he was not aware if the plaintiff had been in this jurisdiction for some time and what steps if any had been taken before the 11th and 12th May, 1995 to execute the warrants.

The plaintiff points out that Detective Sergeant Johnson gave evidence in the District Court that he was involved with the South East Regional Crime Squad in an operation entitled Zulu Cricket. He gave evidence of having occasion to see the plaintiff on the 29th June, 1992 at the Churchill Hotel in Putnam Square. He also gave evidence that he saw the plaintiff with others in the street at Old Brompton Road later that day. He identified the plaintiff as the person named in the warrant. He states that on a later date he went to County Fermanagh to liaise with the RUC about the person named in the warrant. Sergeant Johnson indicated to the court that the only person arrested on the day of the alleged offence was Alan Johnson. Sergeant Johnson thereafter travelled to France to interview Joseph Sherry. It appears that Sergeant Johnson indicated to the District Court that he had gone to Northern Ireland on the day after the arrest of Alan Johnson to deal with evidence in the case and not in fact to seek the plaintiff in these proceedings. He could not say when the English police first began to seek the plaintiff but it was within six months of the 29th June, 1992. At the time he said he was not aware if an earlier warrant had issued for the plaintiff's arrest. He had no information on the enquiries or details on the issuing of the warrant in this case.

The plaintiff points out that the proceedings in the District Court were adjourned to the 28th May, 1998 for continued hearing.

The plaintiff gives details of the proceedings in the District Court and indicates that counsel on his behalf argued that from the allegations as made to the court by Sergeant Johnson it was submitted that no correspondence was shown between the offences alleged and the offence of Possession with Intent to Supply a Controlled Drug in this jurisdiction. He points out that the President of the District Court ruled that there was correspondence and that he was making the order for the extradition of the plaintiff. An issue arose as to whether the plaintiff was entitled at this point to continue to be at liberty on bail. It was then agreed that the matter should be returned to the High Court for further clarification of a bail order that had previously been made. It appears that the matter was mentioned before the High Court and it was ordered that the bail should continue pending the determination of these proceedings.

The matter was then returned to the District Court for the purpose of making a final order by the learned President of the District Court. The plaintiff states that on several occasions the President was not sitting in the particular court or on the particular date. He states that on the 24th September, 1998 the order for his extradition was made. The plaintiff states that since 1992 his wife and he have separated and they are now divorced. He says that he has been living in this jurisdiction quite openly. He says that for the last two and a half years he has become involved in another relationship and that he planned to get married in March of 1999. It now appears that the plaintiff has again remarried. The plaintiff contends by reason of the foregoing, including the lapse of time since the commission of the offence specified in the warrant, the issue of the earlier warrant in October of 1992 and the failure to proceed thereon, the delay in the processing of it, the fact that he believed that he was assisting the police in a sting, by reason of ongoing contact with the police in the matter, by reason of the fact that he was not arrested or contacted by the police in the aftermath of the alleged offence and the fact that he was living openly in this jurisdiction, that it would be unjust, oppressive or invidious to deliver him up under the provisions of s.47 of the Extradition Act, 1965 as amended.

The plaintiff further says that he is advised and believes on the basis of the facts as alleged by Sergeant Johnson that there is no correspondence with the offence as set out in the warrant herein and any offence within this jurisdiction.

A replying affidavit has been sworn by Kieran Kelly, a sergeant of An Garda Siochana. He states that at all material times he was attached to the Extradition Section based at Garda Headquarters, Phoenix Park, Dublin 8. He complains that the plaintiffs affidavit is disingenuous and evasive as regards the issue of delay. He says that on the 10th May, 1995 Detective Inspector Kenneth Lambe of Bray Garda District arrested the plaintiff on foot of a warrant issued by Judge Ballagh at Bray District Court on the 9th May, 1995. He brought the plaintiff to Naas District Court where he charged him with certain offences set out in Greystones sheet 23/95. The plaintiff was then remanded in custody to appear at Bray District Court on the 12th May, 1995. He says that he was informed that the plaintiff was appearing at Bray District Court on the 12th May and that there was a possibility that he might be granted bail. Consequently he went to Bray on that date for the purpose of executing the United Kingdom warrant referred to in these proceedings. He points out that the plaintiff was in fact granted bail and was arrested by him on foot of the warrant. He says that ultimately on the 18th July, 1997 a nolle prosequi was entered in respect of the charge the subject matter of Greystones charge sheet 23/95.

On the 15th June, 1995 the rendition request by the United Kingdom in respect of the plaintiff was set down for hearing on the 30th November, 1995. He points out that on this date counsel for the plaintiff applied for an adjournment on the grounds that there were ongoing criminal proceedings in this jurisdiction and that it would be futile for the court to embark upon a hearing when rendition could not in fact take place until those proceedings were determined. He points out that the solicitor appearing on behalf of the Attorney General objected to the adjournment pointing out that the case had been set down for hearing five and a half months previously and that in the meantime the State had received no notification of an application for an adjournment and consequently had brought a witness from the United Kingdom to Dublin. The solicitor for the State conceded that the State's position would not necessarily be prejudiced if an adjournment was granted. In the circumstances he points out that the presiding judge of the District Court granted the adjournment sought and that the rendition proceedings were then adjourned to the 25th June, 1996 for mention only.

It appears that the matter was thereafter adjourned from time to time for mention only in the District Court and ultimately was adjourned on consent to the 12th May, 1997. On this occasion it was adjourned again for mention to the 18th November, 1997 and on this later date the matter was adjourned to the 25th November, 1997 to fix a date for hearing in the circumstances where the other charge pending against the plaintiff had at this stage been the subject matter of a nolle prosequi. On the 25th November, 1997 the rendition proceedings were finally fixed for hearing on the 12th February, 1998.

He points out that the various adjournments were on the plaintiffs application or consent. It was pointed out by the witness that the matter was substantially heard by the President of the District Court on the 12th February, 1998 when the matter was again adjourned upon the application of counsel for the plaintiff. He points out that on the 28th May, 1998 counsel on the plaintiffs behalf made an application for a further adjournment on the ground that the plaintiff was seeking the transcript of an associated trial and on the ground that he wished to cross-examine the maker of the affidavit verifying the signature of the magistrate who issued the warrant seeking the plaintiffs rendition. He points out that this application was refused and pointed out that the President of the District Court in refusing the application and noting the fact that the plaintiff was seeking the transcript of another trial observed that it was not a requirement that the United Kingdom have to prove their case in the District Court. It appears that the presiding judge also indicated that the plaintiff was not entitled to have oral evidence from the maker of the affidavit.

He points out that Sergeant Johnson was tendered for cross-examination but was not cross-examined by counsel for the plaintiff. It was pointed out that the learned President of the District Court then ruled that there was a clear correspondence between the offence in the warrant and s.15 of the Misuse of Drugs Act, 1977 as amended. It appears that in his ruling the President also referred to paragraph 4 of the affidavit of Detective Sergeant Johnson.

An affidavit has been sworn by Simon Johnson a detective sergeant in the Metropolitan Police of Organised Crime Group, New Scotland Yard, London in which he says that he is a detective sergeant stationed in New Scotland Yard at the Organised Crime Group. He states that he was previously posted to no. 9 Regional Crime Squad (Drugs Wing) which became the Regional Crime Squad now known as the National Crime Squad. He says that all relevant times to these proceedings he was stationed at New Southgate Branch Office. He was one of the police officers involved in the investigation of the matter for which the plaintiffs extradition is sought on foot of the warrant issued on the 19th January, 1995. He says that a warrant was first issued for the plaintiffs arrest in this matter by Highbury Corner Magistrates Court in London on the 21st October, 1992. This warrant was for conspiracy to supply heroin. On the same day at the same court a warrant was also issued for the arrest of Joseph James Sherry in connection with the same offence. He points out that from the date of the issue of the first warrant and onwards the plaintiff has been continuously sought for the aforesaid offence. He says that on that date the fact that he was wanted on warrant was circulated within the United Kingdom on the police national computer in accordance with normal practice.

He says that continual efforts were made to locate the plaintiff with the intention of arresting him. He says that liaison was maintained with the informant 'Miguel' and various agencies both within and outside the United Kingdom. These agencies included the Garda Siochana, the Drug Enforcement Agency, French Gendarmes, Police de I'Air et des Frontieres (PAF) and the Jamaican Police. Sergeant Johnson points out that the decision to arrest the plaintiff was made following advice from the Crown Prosecution Service in October, 1992. By April, 1993 police investigating the matter became aware that the plaintiff was located in this State. He points out that on or about the 17th April, 1993 papers were submitted to the Special Case Work Division of the Crown Prosecution Service in London which deals with the preparation of papers for the return to the United Kingdom of accused persons. He points out that the preparation of papers for the extradition proceedings commenced for both the plaintiff and Joseph Sherry. On the 4th August, 1993 Mr Sherry was arrested in France by the PAF. The preparation of case papers for this State ceased in respect of Sherry only and extradition proceedings commenced with the authorities in France. He points out that French legislation does not have a compatible offence of conspiracy. To facilitate the French extradition on the 5th August, 1993 at Highbury Corner Magistrates Court the warrant for Sherry was withdrawn and immediately replaced with a warrant for the offences of possession with intent to supply the drug and being concerned in the supply of the drug. For the sake of maintaining the status quo in respect of the charges against both men the same procedure was undertaken in respect of the warrant for the plaintiff which had issued on the 21st October, 1992.

The witness further states that the preparation of the extradition papers in respect of the plaintiff continued and on the advice of the Crown Prosecution Service on the 19th January, 1995 the warrant of the 5th August, 1993 was withdrawn and immediately replaced with a warrant for the single offence of possession of the drug with intent to supply. He points out that this warrant was hand delivered to the Gaida Siochana on the 26th January, 1995. He points out that the offences for which the plaintiff has been sought are all arrestable offences and as such it is not necessary for a warrant to be in existence in order to arrest the plaintiff within the United Kingdom jurisdiction. He says that the length of time from the date of locating the plaintiff in Ireland and the delivery of the warrant to the Garda Siochdna is about one year and nine months. He says that he understands that part of this time was taken up by the Crown Prosecution Service in resolving queries about the matter.

A further affidavit has been sworn by the plaintiff in these proceedings which is essentially argumentative and takes issue with a number of the averments in the affidavit of Kieran Kelly. He points out however, that he remarried on the 12th March, 1999.

An affidavit has been sworn by Sergeant Michael Heffernan who is attached to the Extradition Section of An Garda Siochana based in Garda Headquarters, Phoenix Park, Dublin 8. He points out that before the hearing on the 12th February, 1998 that it was patently clear that the verifying affidavit of Detective Constable Paul Edwards and the affidavit as to facts tendered by Detective Sergeant Simon Johnson were the documents upon which the State was relying.

He points out that after the arrest of the plaintiff on the 12th May, 1995 Sergeant Kelly had tendered to the District Court the affidavit of Detective Constable Paul Edwards verifying the magistrate's signature together with the warrant and the certificate of the magistrate's clerk. It was pointed out that at the hearing before the learned President of the District Court on the 12th February, 1998 Sergeant Kelly again gave evidence of having handed Matthew Armstrong at the time of his arrest copies of the warrant, the certificate and the verifying affidavit of Detective Constable Paul Edwards. He points out that Sergeant Kelly was not cross-examined on this aspect nor did he at any stage state or infer that the affidavit of Paul Edwards verifying the magistrate's signature had been withdrawn or replaced. It is pointed that the notice to cross-examine the deponents in the instant case before the District Court was dated the 19th February, 1998 when the case was still pending in the District Court and after the affidavit of Detective Sergeant Simon Johnson was served. He submits that this serves to confirm that the plaintiff and his solicitor were at all times aware that the relevant affidavits were the verifying affidavits of Detective Constable Paul Edwards and the affidavit as to facts of Detective Sergeant Simon Johnson.

In the proceedings before this court a number of the deponents have been cross-examined by counsel on behalf of the plaintiff. Detective Sergeant Simon Johnson has indicated that he was involved in the investigation of the crime alleged against the plaintiff. He was on a team of twelve officers working on this particular investigation and the early gathering of the evidence leading up to the arrest of Mr. Johnson and Mr. Sherry. He pointed out that Mr. Johnson was in possession of 15 kilos of heroin at Gatwick Airport. Mr. Johnson was arrested in an hotel at the airport in the company of an undercover police officer at the time. The witness conceded that the plaintiff was thirty miles away across London in the company of a customs undercover officer. While the police case is that the plaintiff was awaiting a collection of money from the sale of drugs he was not arrested at that time. This was for an operational reason made after consultation with the Crown Prosecution Service, in order to protect both sources of information and precise methodology and in order to enable this type of operation to go forward again without anyone being compromised. There was an opportunity to arrest Mr. Armstrong on this occasion. While Mr. Armstrong did not collect the money on this occasion he would not have been allowed to do so by the Authorities. The police believed that the applicant was there for the purpose of collecting the money after the drugs deal. A portion of the police evidence derives from tape recordings of conversations. In addition to this there are video recordings at a safety deposit centre. The witness identified as 'Miguel' was someone who was working on behalf of the Drugs Enforcement Agency. The witness first saw Mr. Armstrong on the 9th of June at the Churchill Hotel in Portland Square in London. The police became aware of the address of Mr. Armstrong in the Enniskillen area sometime after the arrest of Mr. Johnson. While the police officer in question went to Enniskillen the day after the arrest of Mr. Johnson, this was not for the purpose of looking for Mr. Armstrong because a decision had been made in consultation with the Crown Prosecuting Service and the controlling Senior officers of the operation that to preserve the integrity of the undercover operations, Mr. Armstrong and Mr. Sherry would not be arrested at that stage. While the applicant was not arrested at that time he could have been arrested but the decision had been consciously made not to do so for the reasons stated, namely to preserve methodology, sources of information and to protect those sources. The police evidence suggests that Mr. Armstrong, the plaintiff herein was in control of Mr. Johnson to some extent and that he was exerting a certain amount of control over the whole enterprise. The police evidence is that Mr. Armstrong is the man that brokered the deal and introduced the other participants. The witness indicated his belief that the authorities in this jurisdiction would not have been furnished with a sworn information or information in support of the warrant.

While the initial warrant sought related to an offence of conspiring to supply fifteen kilos of heroin the issue would be a decision that was taken by the senior investigating officer. The initial warrant was issued in October of 1992 and a subsequent warrant was issued in August of 1993 and this was believed to have been issued on the information of Detective Constable Edwards. Sergeant Johnson was nominated to take the place of Detective Constable Edwards in these proceedings in 1998 as it was considered that he was the most appropriate person to actually deal with the identification of the plaintiff Mr. Armstrong. No enquiries were made about the plaintiff with the R. U. C. on the occasion when the witness went to Enniskillen on the 30th of June 1992.

Operation 'Zulu Cricket' commenced on the 9th of June 1992 and the basis for the commencement of the operation was contact from the Drug Enforcement Administration with the information that Miguel had been approached by the plaintiff Mr. Armstrong in relation to the supply of heroin. While Mr. Armstrong in his affidavit suggested that it was Miguel who had approached him, the police information is that the approach had come from Mr. Armstrong to Miguel. It is the police belief that Mr. Armstrong introduced Johnson and Sherry to Miguel. With regard to the procedure adopted in the instance case not to arrest Mr. Armstrong at the first opportunity, the witness indicated that this was an accepted practice by the prosecuting authorities because of the need to protect sources of information and methods of dealing with operations.

When a decision was made in October 1992 to seek the arrest of the plaintiff the circumstances had changed and a decision had been made by the prosecuting authorities in conjunction with the police that he should be sought. The English police believed the Plaintiff to be in Ireland in October of 1992. Liaison took place between the Metropolitan Police, the Garda Siochana, the Royal Ulster Constabulary as well as the French border police and the drugs squad and the Jamaican police and Drug Enforcement Administration, in order to track the Plaintiff down. The police did not know exactly where he was. In June of 1993 at the time when Mr. Johnson pleaded guilty the English police did not know exactly where the applicant was but he was believed to be in Ireland. Enquiries with the Garda Siochana were made in an effort to locate the plaintiff and in September 1993 the English police were made aware that the Plaintiff was in fact at an address in Bray. The witness indicated that Mr. Armstrong was in error in his belief that the witness went to Co. Fermanagh to liaise with the R. U. C. about Mr. Armstrong, He states that he went to Enniskillen to deal with the search of Alan Johnson's premises. The witness indicated that the first liaison with the Gardai was after the decision to arrest the plaintiff in October of 1992.

Mr Sherry was extradited back from France in December of 1994 and he underwent three trials and eventually was acquitted.

The first warrant for the applicant issued in 1992. It was changed in line with that for Mr. Sherry because there was no comparative matter in France to conspiracy. The subsequent warrant of 1993 was changed because, while the 1995 warrant related to the same offence, one does not have on the warrant an indication that the Stipendiary Magistrates is a judicial authority for the purposes of the Extradition Act which is a matter that was added at the bottom of the warrant. The reason for the change of the warrants pertaining to Mr. Armstrong related to the fact that it was intended that both Mr. Sherry and Mr. Armstrong would be facing similar charges.

Sergeant Michael Heffernan was cross examined on his affidavit. He indicated that it would be very common for a local warrant to be withdrawn and to be replaced with extradition documentation which was in a format which would satisfy the requirements of the Act. He stated that this would be normal procedure or certainly usual procedure in this jurisdiction and also in the United Kingdom. Sergeant Heffernan indicated the procedure in relation to extradition. It is the normal practice that the documentation is delivered by hand. He assumed that this was the same in the instant case. The documentation is copied to the Attorney General and to the Chief State Solicitor's office. The Attorney General has the statutory role in inspecting and approving the warrants for endorsement. Where the Attorney General has approved the documentation his comments or his recommendation is conveyed to the Commissioner of the Garda Siochana, who in turn conveys it to the Minister for Justice. The Minister for Justice then has a statutory role whether he will allow the warrant to be endorsed. If the Minister for Justice allows the warrant to be endorsed this information is conveyed to the Commissioner. The warrant is then endorsed, provided that the rest of the statutory requirements apply and the warrant is then executed.

The file in the instant case shows that on the 26th January 1995 the extradition section of The Garda Siochana consulted the Attorney General as to whether the warrant should be endorsed for execution. On the 14th of February 1995 a letter was received from the Attorney General's office indicating that the warrants could be endorsed. This was on a note from Mr. James Hamilton stating "the warrant is in order for endorsement, in accordance with the provisions of the Acts." The witness has also indicated that, from his experience, it is the situation that warrants are delivered very quickly after they are issued in the courts in the United Kingdom. He indicated that there is never any appreciable delay whatsoever in his experience. From an inspection of the file it is suggested that no other documentation other than the warrant, the verifying affidavit and the certificates were received, when they were hand delivered by the United Kingdom authorities, and that these were transmitted to the Attorney General's office, in copy form.

Ms. Ruth Fitzgerald an officer in the office of the Attorney General gave evidence that the extradition file was opened in the Attorney General's office on the 13th of October 1994. Had there been any prior communication in writing or any telephone conversation of any substance prior to that date a file would have been opened. No such file exists. Copies of the extradition documentation including the warrant and the statement of facts, confirmatory note and verifying affidavit and statement of law would have been received from the Attorney General's office in England. The Attorney General performed the functions under the Act in the instant case on the 14th of February 1995. The communication in October 1994 was request for the backing of the warrants from the United Kingdom authorities, that is from the Attorney General's office in London. Submissions of Counsel for the plaintiff

In the first instance Mr. McGuinness addressed the issue of the lapse of time or other exceptional circumstances under which it is submitted that it would be unjust, oppressive or invidious to deliver the plaintiff up under Section 47 of the Extradition Act. It is submitted that the considerations of lapse of time and other exceptional circumstances should be read conjunctively. Based upon the authority of the Supreme Court in the case of B. v Conroy (unreported Supreme Court 1st March 2001) it is conceded that the plaintiff must establish that the exemption contended for applies on the balance of probabilities. Dealing with the lapse of time it is submitted on behalf of the plaintiff that Section 50 does not prescribe a minimum period which must be passed before the High Court, on the application, can consider it sufficient to trigger the operation of the section. There is some distinction made between the case law as to the period to be taken into consideration in calculating the lapse of time. Counsel has referred this Court the authority of Kakis v Republic of Cyprus [1978] 3 WLR 779. in which the House of Lords, under similar legislation, considered the period to be from the date of the offence (or convictions as the case may be) and the date of the hearing in the High Court. This period was confirmed by the Supreme Court in the case of Kwok Mine Wan v Conroy [1998] 3IR 527.

Counsel referred this Court to portion of the judgment of the Chief Justice in the case of B. v Conroy (unreported, Supreme Court, 1st March 2000) where he stated follows on page 10 of his judgment:

"I consider first the lapse of time which has occurred in this case. In Kwok Ming Wan v Conroy. Hamilton C. J. treated the relevant period as that between the date of the commission of the offence or the conviction, on the one hand, and the hearing in the High Court, on the other hand. That was also the view taken by Lord Diplock in Kakis v Republic of Cyprus in which he pointed out that the date of the hearing in the Division Court was the first occasion in which the particular ground for resisting extradition could be raised. That was also the case with our legislation. While it is true that Denham J. in her judgment in Fusco v O Pea referred to the period which had elapsed between the conviction and the commencement of the proceedings, it does not appear that any delay of significance occurred in that case between the issue of the proceedings and the hearing in the High Court and, accordingly, it was not necessary for Denhan J. to address the issue as to which was the appropriate date, since the lapse of time in that case would have been sufficient in any event to trigger the exempting provisions.

That is not the situation in this case where the interval between the institution of the proceedings and the hearing in the High Court was of the order of nearly three years. That is a relevant consideration since it is not in dispute that this was due to the illness of the plaintiff and other factors for which no responsibility attaches to the prosecuting authorities in either jurisdiction.

The relevant lapse of time in this case accordingly is from the 7th of December 1992 to the 19th of April 1996 when the Special Summons was issued."

Counsel submits in the instant case that the relevant period to consider whether there has been a lapse of time is from the date of the alleged offence on the 29th of June 1992 to the 13th of December 2001 a period of nine and a half years. It is submitted that the grounds as to whether the loss of time and other exceptional circumstances will render it unjust, oppressive or invidious to deliver up the plaintiff can only be considered by this Court, and of course, on appeal the Supreme Court. It is submitted that a relevant consideration in this case is the contradictory evidence which has been given on different occasions and before different courts by or on behalf of the defendant with regard to the history of the warrants which were allegedly issued for the plaintiff in this case. It is submitted that Sergeant Johnson has sworn an affidavit before this Honourable Court containing information that he told the District Court that he did not have.

Counsel contends that there has been delay in the conduct of these proceedings by the defendant. It is submitted in this regard that there was a contested motion for discovery which took over six months to resolve at the end of which time the defendant agreed to make an order for discovery on consent. It is further stated that further and better discovery had to be sought and an order granted in that regard. It is further submitted that such a lapse of time is clearly sufficient to trigger a determination by the High Court as to whether there were "other exceptional circumstances." It is submitted that if this Court is of the view that the relevant period is that between the date of the offence and the commencement to the proceedings, that is until the 29th of September 1998, that a period of six years and three months arises for consideration. It is submitted that this period is in any event more than sufficient to trigger the determination. It is pointed out that in the case of B. v Conroy (supra) the lapse of time was three years and four months while in Kakis v Republic of Cyprus the lapse of time was three years and five months up to the date of hearing.

It is further submitted by counsel on behalf of the plaintiff that section 50 expressly contemplates the granting of relief to those who have absconded from other jurisdictions, for example it provides for relief on grounds of delay even where there has been a conviction. In reference to the case of Wan v. Cortroy (supra) counsel points out that the Supreme Court granted relief to a person who had absconded following conviction. Section 50 relief must be available with even greater force to someone such as the plaintiff who came to this country at a time when there was no warrant out for his arrest. It is submitted that there is no blame attaching to the plaintiff whatsoever in respect of this matter. Counsel further refers to the uncontested evidence put forward by the plaintiff that he visited Enniskillen on a number of occasions after June of 1992.

As against this it is submitted that there is a final fault in the respect of the lapse of time on the prosecuting authorities in the United Kingdom and in this jurisdiction. There is no explanation as to how it took both police so long to locate the plaintiff. Furthermore, it is submitted that having located the plaintiff there is no or no adequate explanation as to the delay that is one year and nine months in seeking a warrant for his extradition. It is submitted that a simple one line reference to part of the time being taken up by the Crown Prosecution Service in resolving queries is insufficient in this context. It is further submitted that there is no explanation as regards the delay in executing the warrant. It is further submitted that there has been delay as regards the proceedings in this jurisdiction, much of which can be placed at the door of the prosecuting authorities.

Having set forth contentions relating to the delay aspect of this case, counsel submits that there are several circumstances which fall to be considered as 'exceptional circumstances' of the purposes of the relevant sub-section of section 50 relied upon. In the first place the plaintiff relies upon what he says was his belief that he was involved in a police sting. He also asserts that he was in constant contact with an RUC Special Branch superintendent with regard to the operation. It is submitted that the plaintiff was being advised by this officer as regards his participation. Further reliance is placed upon the alleged failure to look for the plaintiff or to search the plaintiff's house or business being significant in this context. It is submitted that a conscious decision was taken by the police authorities in England in the first place not to arrest the plaintiff, not to follow him and not to seek to learn about his whereabouts at the initial stage and not to prevent him leaving England. A further factor relied upon on the part of the plaintiff is that he did not seek to conceal his presence or his identity when he returned to Ireland from England. In other words it is pointed out that he lived openly in this jurisdiction. Thirdly, it is submitted that there is no criminality attaching to the plaintiffs departure from the United Kingdom. It is further submitted that the United Kingdom authorities did not act with reasonable expedition in pursuit of the plaintiff. In this regard counsel refers to the fact that a warrant issued for the plaintiff in October 1993 and at that point in time they did not send it to the State for execution. By September of 1993 it is asserted that the United Kingdom authorities knew where the plaintiff was. By September of 1993 the initial warrant had been changed for reasons entirely unconnected with their alleged pursuit of Mr. Armstrong. This relates to the fact that they sought to change the warrant because of the extradition from France of Mr. Sherry, in circumstances where French law did not recognise the offence of the conspiracy. It is submitted that the substitution of the warrants and any delay caused thereby is not a responsibility in any way of the plaintiff Mr. Armstrong and was caused by circumstances entirely outside of his control. Further it is submitted that Mr. Armstrong travelled to Enniskillen on a number of occasions since 1992 and was not arrested. It is further pointed out that the applicant is a sixty year old man who has lived in Ireland since 1992. The plaintiff entered into a third relationship having being divorced for a second time and remarried in 1999.

The plaintiff alleges that there is a lack of correspondence between the offence contained in the warrant and the law in this jurisdiction. It is submitted by counsel that one must know what are the acts alleged in support of the English offence to see if the acts committed here would be a corresponding offence. It is submitted that in the instant case the facts of the offence specified in the warrant do not contain any statement of facts sufficient to make it known what facts are being alleged against Mr. Armstrong so as to make him guilty of the offence of the possession of drugs with intent to supply contrary to English law. It is submitted that the matter could have been and should have been addressed in one of two different ways. It is submitted that there could have been evidence of English law as to what the offence of possession embraced. It is further submitted that there ought to have been a sufficient statement of what acts were alleged against Mr. Armstrong which make him guilty of that offence. It is submitted that this court cannot know or assume what offence of possession contrary to the 1971 Act means and in the absence of being told what Mr. Armstrong is alleged to have done that the warrant cannot convey and does not convey any sufficient recital of facts in this regard. It is further submitted that this is something that appears to have been recognised because the affidavit of Detective Sergeant Johnson was put in and the only material before the District Court judge relevant to this were three lines in paragraph four of that affidavit. It is submitted that this is an insufficient basis for the learned President of the District Court to have concluded that it corresponded with an offence under Irish law.

Submissions made by Counsel on behalf of the defendant

On behalf of the defendant it is submitted by counsel that there was no negligence or invidious delays arising from the failure to arrest the plaintiff on the 29th of June, 1992 and the court must have regard to the explanation given by Sergeant Johnsen in relation to why the plaintiff was not arrested at that time. It is submitted that the reasons given were essentially in the public interest and for the protection of the police force. It is submitted that there was good and sufficient reason given as to why the plaintiff was not arrested at that time. On the 21st of October, 1992 the first warrant was issued, and it is submitted from that time that the police force in England were seeking Mr. Armsteeng. It is accepted that there is no evidence that the warrant of the 5th of August, 1993 nor the earlier warrant of the 21st October, 1992 were ever served on the authorities in this country.

With regard to the domestic proceedings instituted in this jurisdiction against the plaintiff by the Director of Public Prosecutions it is submitted that to allow those proceedings to continue to conclusion prior to the extradition of the applicant was correct in the light of the proper policy supported by judgments in this jurisdiction including the judgment of Kelly J. in the case of Lansan v. O'Dea. (unreported. High Court, 10th October 1997) It is submitted by counsel that insofar as this approach was taken that it cannot give rise to any exceptional circumstance arising under the terms of the section. Counsel concedes that there has been evidence showing a lapse of time but it is submitted that this evidence is not consistent with any negligent delay or any inaction. Counsel referred to the fact that from October, 1992 the English authorities were seeking the applicant and in this regard the circumstances of the delay or passage of time have been justified in respect of the lapse of time up to the issuing of the initial warrant. It is pointed out that the English authorities did not know of the whereabouts of the applicant but it appears to be clear that in or about April or May and certainly prior to July, 1993 there was some communication with the Gardaf. In July of 1993 there was a report seeking evidence and in September of 1993 the English authorities were aware of the plaintiff's address in this jurisdiction. Counsel submits that there cannot be any undue delay in this regard insofar as the English authorities were organising themselves and that this lapse of time is something that is implicit in the section in relation to the extradition period.

The only difference between the warrant of the 15th of January, 1995 relied upon in these proceedings and the warrant of the 5th of August 1993 was a reference that it had been issued by a judicial authority. During the period between August of 1993 and January of 1995 there was some contact in October of 1994 with the Attorney General's office. Counsel submits that during the fourteen month period up to the stage when the Attorney General's office was consulted in Dublin by the English authorities, there was contact with the Crown Prosecution Office and if there was a lapse of time of fourteen months during this period it did not give rise to any exceptional circumstances that would cause the plaintiff to expect some legitimate expectation that there would not be proceedings for his extradition.

While it is conceded on behalf of the defendant that the letter from the Chief State Solicitors' office might have caused confusion in regard to what has been referred to as being the second affidavit of Detective Constable Edwards, it is clear that what was intended to be substituted was an affidavit of facts of Sergeant Johnson for one believed to have been served and sworn by Detective Constable Edwards. It is clear that the District Court was informed that the authorities were relying on the warrant of the 19th January, 1995 and the verifying affidavit of Detective Constable Edwards related to the verification of the signature which was not put in issue at any particular time. It is submitted in the circumstances that on the authority of The State Holmes v. Furlone. the District Court had to be satisfied (a) of the validity of the warrant and other documents prescribed by the Act, (b) that the person named in the warrant is the person arrested and (c) that the offence in respect of which the warrant has been issued is one in respect of which it can make an order under the Act, namely that there is correspondence between the offence alleged and offence under Irish law. Dealing with the corresponding offence aspect, it is submitted by counsel on behalf of the defendant that it cannot seriously be disputed that there is no difference between the ingredients of the offence in Ireland and that in England in relation to possession of heroin. It is submitted by counsel that for the purposes of deciding the correspondence point the court merely has to read the warrant and form a view as to whether the acts alleged constitute an offence in Irish law if committed in this jurisdiction. With regard to the affidavit as to the facts, it is submitted by counsel that this merely indicates the surrounding circumstances. It is submitted that on any reasonable interpretation of the warrant and the said facts conveyed in it, that this shows that the facts would be an offence in Ireland and that there is sufficient correspondence. It is submitted by counsel that the warrant is sufficient in its detail if it conveys the nature of the charge. The learned President of the District Court concluded that section 4(1) of the Misuse of Drugs Act, 1971 in England corresponded with section 15 of the Misuse of Drugs Act, 1977 as amended in this jurisdiction. It is submitted by counsel that the constituent elements of the offence in the United Kingdom and in this jurisdiction are on all fours. The warrant indicates the alleged offence, gives the date, the name of the accused and his address and sets out the nature of the alleged offence. In support of his submissions, counsel has referred this court to a number of authorities including in the first place the case oiHanlon v. Flemrne [1981] I.R. 489 where at page 495 of the report Henchy J. indicated that the relevant decisions of the Supreme Court showed that it is a question of 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 near entirety, would constitute an offence which, if committed in the State, could be said to be a corresponding offence of the required gravity. Included in the cases referred to by Henchy J. is the case of The State (Furlong) v. Kelly [1971] I.R. at 132 where Walsh J. stated at page 143

"The function of the District Justice is to examine the documents set before him and to see whether there is a sufficient statement of the particulars of the ingredients of the offence alleged, to enable him to bear on them his knowledge of the law of this State so that he may determine whether the acts alleged would constitute an offence under the laws of this State."

In the case of Wvatt v. McLouehlin [1974] I.R. 378 at page 395 of the report Walsh J. stated that the courts in this jurisdiction are not concerned with the construction of English law. In that particular case he indicated that it appeared to be quite clear that the wording of the charge as laid in the warrant identified it with the offence of simple larceny in this country. He further stated that whether such wording is contained in the warrant is or is not necessary in England is a matter the court need not concern itself with and it is quite irrelevant. He indicated that the District Court here has to be satisfied that the offence laid in a warrant was sent here and endorsed for execution is so stated as to be recognisable as corresponding with an offence under our law. He further stated:

"It must, therefore, contain such essential factual material as may be necessary to recognise whether or not the acts complained of are ones which, if committed in this country, would amount to a criminal offence"

He continued as follows

"Until there is some reason to believe the contrary, it is to be assumed that a statement of facts such as the one appearing on the warrant executed in this case, or any warrant sent here for execution, is a truthful statement of the facts of the case in respect of which the arrest is sought. If it should transpire in any case that the statement of facts set out in the charge were not supported by any evidence then, of course, a very serious situation would arise and the courts would be obliged to examine such warrants in a completely different light because to set out statements of fact on a warrant for the purpose of giving the charge the appearance of corresponding to an offence under Irish law, when those factual elements are not capable of being born out by evidence, would be to practice a fraud upon the courts of this country. It is not suggested that such is the position in the present case. Whether or not it is necessary to prove all the facts which appear on the warrant for the purpose of establishing the offence under English law is immaterial. What is material is that the facts as stated do amount to an offence in English law. Section 55 of the Act of 1965 deals with the proofs which are normally adequate to establish this point, and such proof has been established in the present case in accordance with that section."

Walsh J. continued as follows in his judgment

"It is, however, worth drawing attention to the opening words of section 55 which qualify the sufficiency of the proof required by the statute by the words '... unless the court sees good reason to the contrary.' That, for example if a point is raised by the plaintiff to the effect that the facts alleged do not constitute an offence under English law then the court may be forced to embark upon an enquiry as to whether they do or do not."

Later at page 396 of his judgment Walsh J. stated as follows

"The court of the requested country is not normally expected to enter into an inquiry as to whether the acts alleged constitute an offence in the requesting country; that is the purpose of section 55 of our Act of 1965 but it has the saving qualification as I have already mentioned. What the court of the requested country is concerned with is to inquire as to whether the acts alleged constitute an offence under the law of the requested country."

Section 15(1) of the Misuse of the Drugs Act 1977, as amended, reads as follows:-

(1) "Any person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under section 5 of this Act, shall be guilty of an offence."

It is submitted by reference to the ingredients of the offence in this jurisdiction that the constituent elements of the offence in the United Kingdom and the offence within this jurisdiction are on all fours. Further reliance was placed upon the judgment of Denham J. in the case Stanton v. O'Toole (unreported Supreme Court 9th November, 2000) where it is indicated that the court must look at the factual elements of the offence to see if they would constitute an offence in Ireland. In that case Denham J. cited with approval the authority of The State (Furlong) v. Kelly, (supra)

The lapse of time

Counsel on behalf of the defendant acknowledges that there has been a lapse of time in the instant case but submits that the plaintiff has failed to establish any exceptional circumstances which existed. It is submitted by counsel that the provision under section 50(2) (bbb) is activated only if the plaintiff establishes both a loss of time, together with exceptional circumstances and the lapse of time itself may be a factor to be addressed. Counsel indicates that the burden of proof imposed upon a plaintiff in this regard is high and it is related to the gravity of the offence in issue.

With regard to the plaintiff's assertion that he was assisting the RUC in the matter in respect of which his extradition is now sought, it is submitted by counsel for the defendant that this is a matter for the trial itself and is a matter of defence and that it is not a matter giving rise to exceptional circumstances within the terms of the section of the Extradition Act.

With regard to the proceedings in the District Court it is submitted by counsel that at all stages it was the intention of the State to proceed with those matters and no indication was ever given to the plaintiff to the contrary. It is submitted that part of the lapse of time that occurred in the course of those proceedings was partly the applicant's problem and partly that of the State. It was submitted that the State was entitled to have the domestic proceedings out of the way before they sought to pursue the extradition proceedings themselves. It is accepted, however, that in the course of the extradition proceedings, insofar as a misunderstandings arose in relation to the affidavit of Sergeant Johnson and the belief that an earlier affidavit sworn in similar terms sworn by Detective Constable Edwards had been served on the plaintiff, it was incumbent on the court in those circumstances to grant an adjournment to the applicant and this is something that the applicant was entitled to, to ensure that fair procedures prevailed. With regard to the plaintiff living openly, it is submitted that this is not sufficient in itself to create exceptional circumstances. It is submitted that the passage of time is not accompanied by any exceptional circumstance.

In reply to submissions made by Mr.Carthy, Mr. McGuinness contrasts the apparent speed at which the authorities were able to deal with Mr. Sherry to the situation of the applicant and points out that it was not until 1994 that the authorities in this State were ultimately approached with a view to having the applicant extradited from the State to the United Kingdom. Counsel further reiterates that there is no explanation for the delay between the endorsement of the warrant on the 6th March, 1995 and its execution on the 12th of May, 1995. Mr. McGuinness further addressed this court in relation to the refusal to cross-examine Constable Edwards on his affidavit. He points out that the warrant was issued on the information of Detective Constable Edwards, he verified the signature and he swore his own affidavit. He points out that the detective constable was the case officer and that he had previously come to Ireland and gave evidence in the bail application and was well familiar with the case. He submits that the cross-examination goes to one issue which was alive which is the issue of correspondence. Counsel further submits that in relation to the absence of the transcript of the trial of Mr. Sherry that the facts disclosed in that transcript are facts which would be legitimate for the court to consider in relation to the issue of correspondence. It is further submitted by counsel that the warrant itself is insufficient insofar as it sets forth the relevant ingredients of the offence in assessing the issue of correspondence. It is submitted that insofar as the warrant uses the word 'possession' that it is insufficient because there is no evidence as to what the English law of possession embraces within the scope of its control, nor is there sufficient evidence that what is alleged was actually done by Mr. Armstrong.

With further reference to the issue of the passage of time or delay it is submitted by counsel for the plaintiff that the correct test in the instant case is not a test of estoppel.

Conclusions in relation to the Section 50 proceedings

In the first instance dealing with the issue of passage of time or delay I am satisfied that there has indeed been a significant passage of time in this case as indicated by counsel in opening this case. Some of this is clearly explained, other periods of time are not. In relation to the initial period from June of 1992 it appears that a deliberate decision was taken for police reasons in conjunction with the Crown Prosecution Office not to arrest the applicant at the outset at a stage when he was available to be arrested in relation to the matters, the subject matter of this extradition application. The applicant left the jurisdiction of United Kingdom and came to Ireland. It appears that from enquiries made that his whereabouts became known to be in this State and ultimately by September of 1993 his exact address was established. In the meantime by October 1992 a warrant was issued for his arrest. This indicates that it was the intention at an early stage to have the applicant arrested and tried for the offences for which his extradition is now sought.

Undoubtedly, if the police reasons advanced in the context of the protection of sources and identification of informants did not exist the applicant could have been arrested at a very earlier stage and brought to trial in the United Kingdom.

It is clear that the applicant left the United Kingdom believing that he had avoided any suspicion. He apparently lived openly in this jurisdiction at all relevant times. Circumstances prevailed whereby fresh warrants had to be sought, in the first instant arising from the extradition of Mr. Sherry, who was believed to have been involved in the criminal activity with the plaintiff. His extradition from France could only have been obtained after a change in the warrant in light of the fact that there was no corresponding offence in France to one of conspiracy initially laid in the warrant. A corresponding change was made in relation to the warrant pertaining to the plaintiff in circumstances where it was clear that the intention was that both the plaintiff and Mr. Sherry would be tried together. An incidental change was thereafter made to ensure that the warrant contained the necessary endorsement to have him extradited from this jurisdiction to the United Kingdom.

It appears that certain contact was maintained with the Garda Siochana in reference to the plaintiff in July of 1993. It appears, however, that the formal matter of extradition did not arise until late in 1994 when contact was made with the Office of the Attorney General resulting in a file being opened at that time. Ultimately the warrant at issue in these proceedings issued in January of 1995 and while this resulted in an application being made to the authorities in this State for its backing and execution, the provisions of the Extradition Act had to be complied with and the Attorney General had to be consulted. The evidence shows that he made a decision on the 14th of February but the warrant for the arrest of the applicant was not executed until the 12th of May, 1995. Since that time matters have been delayed in the initial stages by domestic criminal charges being preferred against the plaintiff which it was considered appropriate to determine before proceeding with the extradition application. It is clear that this approach was one that was urged upon the District Court by counsel on behalf of the applicant. Accordingly it cannot be submitted that this gave rise to any undue delay. However, those proceedings ultimately were only terminated in July, 1997 when a nolleprosequi was entered.

Thereafter the proceedings for the plaintiff's extradition in the District Court came on for hearing but were themselves ultimately delayed in part by clear confusion in relation to the existence of an affidavit sworn by Detective Constable Edwards. It is clear that the confusion which existed as to whether that particular affidavit had been served on the plaintiff or his legal representatives gave rise to some confusion in the District Court and resulted in the application before the District Court having to be adjourned.

The relevant period of time on the basis of the authorities cited to this court is the time from the 29th of June, 1992, when the plaintiff is alleged to have committed the offence and when he might have been arrested, to the time when these proceedings were instituted on 29th September 1998 or alternatively when this matter came on before this court in December, 2001.

It is clear that time of itself is not sufficient to bring into application the provisions of section 50(2) (bbb) but there must be other exceptional circumstances such that it would be unjust, oppressive or invidious to deliver the plaintiff up under section 41 of the Act.

With regard to the exceptional circumstances alleged, I am satisfied that the fact that the plaintiff lived openly and left the United Kingdom in circumstances where no criminality exists or is alleged do not of themselves constitute exceptional circumstances. I am satisfied that there has been some want of reasonable expedition on the part of the United Kingdom authorities, especially a period of fourteen months since August of 1993 to November, 1994 which has not been explained. The circumstances whereby the plaintiff was not arrested at the outset, nor followed but was allowed to leave the United Kingdom are certainly unusual circumstances but these have been explained by the United Kingdom authorities and I am disposed to except this explanation in circumstances where no submission has been raised to suggest that these were unfounded. The confusion in the District Court has certainly given rise to some delay but of a fairly limited nature. I am satisfied that the circumstances relating to the existence of domestic charges which account for some period of time were not of themselves exceptional and certainly I believe that the time relating to those offences prior to the nolle prosequi being entered is a time for which no blame can attach to the respondent, though equally I am not inclined to apportion any blame to the plaintiff in respect of the same period.

I am prepared to except the plaintiff's evidence that he did go to Northern Ireland on occasions since 1992 and was not arrested, but again these were in circumstances were his visits were apparently of a limited nature and he was generally residing in this jurisdiction. There is no suggestion that he was known to be in Northern Ireland when he was there at any time after the police in Northern Ireland were alerted to the fact that he was wanted and that he should be arrested, notwithstanding publicity attaching thereto.

With regard to the plaintiff's version of events surrounding the 29th of June, 19921 am satisfied that these are essentially matters that must be addressed in the context of any proposed trial of the plaintiff and it is clear from the cross-examination of Detective Sergeant Johnson that the version of events that he had presented to the court is not one that is accepted as true by the police in England.

The fact that the plaintiff has remarried is of course a factor to be considered by the court, but I am particularly influenced by the fact that this remarriage took place at a time after the District Court had made an order for the plaintiff's extradition. In conclusion, I am satisfied that while there has been a lapse of time and there are some circumstances which are somewhat unusual and might be described as exceptional, that it cannot be said that it would be either unjust, oppressive or invidious to deliver the plaintiff up under section 47 at this point of time.

With regard to the issue of the correspondence of offences I am satisfied that the offence as described in the warrant is one relating to possession of a controlled drug in circumstances were the same drug is prescribed in this jurisdiction and possession for the purpose of sale or supply of this drug in this jurisdiction is an offence well known to Irish law. I am satisfied that the warrant on its face sets forth sufficient material to establish correspondence with an offence known to Irish law. I am, furthermore, satisfied that it was not necessary for the District Court to receive evidence of foreign law, namely the law of the United Kingdom as that was not put in issue in the proceedings in the District Court, nor indeed in this court. I am also mindful of the fact that the District Court had additional evidence from Detective Sergeant Johnson, but essentially I am influenced by the terms of the warrant itself and, in circumstances while it has been submitted that the word 'possession' might have a different connotation under the law of the United Kingdom, no evidence has been put before this court in relation to English law calling for enquiry in this regard and on the facts set forth on the face of the warrant I am satisfied that the offence referred to there does correspond to an offence known to the law of this jurisdiction and accordingly I refuse the relief which the plaintiff seeks in these proceedings.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Armstrong v. A.G. & Anor [2002] IEHC 132 (18 January 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/132.html Cite as: [2002] IEHC 132