Neutral Citation Number: [2004] IRLHC 339
THE  HIGH  COURT
2002 No. 9 Ext

Between:
The Attorney General
Applicant

And

Peter Doyle
Respondent

THE  HIGH  COURT
Between:
Peter Doyle
Plaintiff

And

Michael Murphy
Defendant

Judgment of Mr Justice Michael Peart delivered the 21st day of October 2004:

Having already made my order in each of the above proceedings, stating my reasons only briefly at the time, and indicating that I would set out my reasons in more detail in a written judgment. 

The first mentioned proceedings consist of an application by the Attorney General for an order under s.47 of the Extradition Act, 1965 as amended for the rendition of the respondent to Northern Ireland. It appears that on the 30th April 2002 he was convicted of an offence that on the 7th November 1998 he had with him an imitation firearm with intent to commit an indictable offence namely armed robbery or to resist arrest or to prevent the arrest of another person while he had the said imitation forearm with him. He was sentenced to 2 years imprisonment, and that on release he was to be under the supervision of a probation officer for a period of 2 years. This sentence was ordered to run concurrently with two other sentences of 2 years imprisonment imposed on the same date. In respect of one of the latter, some months later on the 4th August 1999 he was temporarily released from prison at Magilligan in the County Court Division of Londonderry, Northern Ireland until 13.13 hrs on the 11th August 1999 for the purpose of home leave. He failed to return to Magilligan Prison on the 11th August 1999 and thereby became an offender unlawfully at large.

On the 20th March 2002 warrants for his arrest were issued by a Resident Magistrate in Northern Ireland in respect of these offences for the purpose of enabling him to be returned to prison in order to complete his sentences.

On the 8th July 2002, two warrants (A and C) were endorsed by an Assistant Commissioner of An Garda Siochana for execution, and on the 28th August 2002, Sergeant Martin O’Neill arrested him at the Four Courts, Dublin, and having complied with the required formalities as to arrest under the 1965 Act, as amended, in the manner set forth in his affidavit sworn herein on the 19th November 2002, he brought the respondent before the High Court on the same date. He was thereu0pon remanded in custody. An application for bail was later refused.

In respect of each warrant there is the usual affidavit from a witness to the signature of each warrant by the Resident Magistrate on the 20th March 2002, and also a Certificate in respect of each which certifies that each offence surpasses the necessary level of gravity for the purposes of the Act. There is no issue taken as to the fact that the offences for which he was sentenced in Northern Ireland correspond to offences in this jurisdiction.

I am completely satisfied that there is no reason why the requested order ought not to be made under section 47 of the 1965 Act, as amended.

The real issue for determination was whether the respondent is entitled to whether the respondent should be entitled to relief under the provisions of section 50 of the said Act on the basis that it would be unjust, invidious or oppressive to return him to Northern Ireland for the purpose of completing the said sentences of imprisonment. 

In the s.50 proceedings, commenced by way of Special Summons, the respondent is the plaintiff, and I shall refer to him as such from this point onwards in my judgment. The grounds upon which the plaintiff seeks this relief are set out in an affidavit of Terence Lyons, the solicitor acting on his behalf, which is sworn on the 10th December 2002. He states that in relation to the plaintiff’s failure to return to Magilligan Prison on the 11th August 1999, the fact is that he was in custody in Pearse Street Garda Station on that date having been arrested in Dublin on the previous day at about 10.50am, and was remanded in custody to appear in the Circuit Court on the 11th August 1999, and furthermore that he was represented by solicitor and counsel on that date. Mr Lyons states that the plaintiff instructed him to write on his behalf to the Northern Ireland authorities, and that he did so. In that letter it was noted that the plaintiff was due to return on that date to complete his sentence, and informed them that he was in custody here pending charges here being dealt with, and that the letter concluded as follows:

	“Please feel free to contact us should you have any inquiries.” The Governor of Magilligan Prison responded by letter dated 16th August 1999 stating that “it would be helpful if you could update us on developments in his case, particularly if a term of imprisonment is recommended upon sentence.” The letter went on to state that in the event of such a sentence being imposed his “unlawfully at large” status would have to be reviewed.

By letter dated 17th September 2002 Mr Lyons’s office wrote stating that on the `15th September 2002 in the District Court he was sentenced to “ a further six months consecutive to his sentence of fifteen months imposed in the same court on the 18th August 1999”, and informing the authorities that on the 18th October 1999 he was due in the Circuit Court for sentencing, and that he had been sent forward to the same court in respect of separate matters; and that he was remanded in custody in relation to further charges to be dealt with in the Dublin District Court on the 13th October 1999, concluding as follows – “please contact this office if we can be of further assistance.”

The plaintiff was further remanded on the 11th August 1999 and in due course received a six year sentence on the 9th May 2000 with a review date for October 2001. In respect of these Circuit Court offences, he had pleaded guilty having made inculpatory statements. It is stated that without such inculpatory statements it would have been difficult to prosecute those offences. The sentence review was successful, and on the 6th March 2002 the plaintiff was released on condition that he attend the Coolmine Residential Treatment Centre. This placement was due to commence in September 2002 when the plaintiff would have completed another sentence imposed in the Circuit Court in respect of other offences, including one for escaping from lawful custody on the 14th November 1999. Although he pleaded guilty to the latter charge, he had in fact handed himself back into custody.

Mr Lyons also avers that while released by the Prison Authorities on the 17th May 2002 on temporary release, the plaintiff incurred further District Court charges and received a six months’ sentence on the 16th August 2002, which, Mr Lyons avers, was due to expire on the 31st December 2002. It is averred that at the time of the Circuit Court offences referred to the plaintiff was a chronic heroine addict, but that for over three years prior to December 2002 he had maintained a drug-free status, and that he had made every effort to  comply with the conditions imposed in the Circuit Court in order to be successful on the sentence review. It is averred also that while in prison he remained drug-free, was co-operative and completed numerous courses. It was stated also that the plaintiff wished to take up a placement in Coolmine on foot of his review which was to take place on the 16th December 2002, subject to the view of the Circuit Court judge and the Probation services. It is submitted by Mr Lyons in his affidavit that, in view of the lapse of time which occurred before arresting the plaintiff on foot of the warrants, the lapse of time in forwarding an affidavit to the plaintiff’s solicitors, together with other exceptional circumstances, and all the circumstances, it would be unjust, invidious and oppressive to deliver up the plaintiff to the Northern Ireland authorities so that he can there complete his sentence.

The warrants are dated 20th March 2002 at which the plaintiff was in custody in this jurisdiction. In May 2002, as stated already, the plaintiff was temporarily released here but committed further offences for which he received a further six months’ sentence on the `16th August 2002. The warrants were endorsed on the 9th September 2002, and he was arrested on the 28th August 2002. In my view it cannot be said that the period of five months approximately from the issue of the warrants to the 9th July 2002 when they were endorsed for execution is in any way exceptional in the sense of being unusual or excessive. Neither is the period of time exceptional, even if you add to that period the period of time from 9th July 2002 to 28th August 2002 when he was arrested and before the Court. That being so, it is not strictly necessary to go on an consider whether there are any other exceptional circumstances in the case, which if considered together with the lapse of time and all the circumstances, would make it either unjust, invidious or oppressive to deliver the plaintiff up to the Northern Ireland authorities. But, in any event, it is well settled in this jurisdiction that where the delay is caused or significantly contributed to by the plaintiff’s own conduct, he cannot succeed on the ground of the lapse of time caused thereby. Even allowing for the fact that his solicitors wrote to the Northern Ireland authorities to let them know the situation, the plaintiff cannot avail of the period from the 11th August 1999 to March 2002 in his allegation as to lapse of time. 

In view of that, it is unnecessary to consider whether the ability or wish to take up a place at Coolmine in his continuing efforts to rid himself of any remaining drug dependency would constitute an exceptional circumstances to add to the passage of time in order to entitle him to relief under section 50 of the Act of 1965 as amended.

For the above reasons, I have made the requested order under section 47 of the said Act, and refu0se the relief sought under section 50 thereof.     
Approved: Peart J.