THE SUPREME COURT

Keane C.J.
Murray J.
Geoghegan J.
82/99

BETWEEN:

M. B.

Plaintiff/Respondent    

and

ASSISTANT COMMISSIONER NOEL CONROY

Defendant/Appellant  

JUDGMENT delivered the 1st day of  March 2001 by Keane C.J.

	The plaintiff in these proceedings was convicted at Manchester Crown Court on the 9th November 1992 of an offence of indecent assault, which was alleged to have occurred on a day between 1st December 1988 and 31st March 1990, and to which he pleaded guilty.  His case was remanded until 7th December 1992 for the preparation of a probation report.  However,  the plaintiff failed to appear in court on that date:  he had left Manchester and returned to Ireland where he had been born and brought up.
	On the 4th December 1995, the Manchester Crown Court issued a warrant for the arrest of the plaintiff for the offence in question and that warrant was endorsed for execution within the State on 3rd January 1996.  It was executed on the 8th January 1996 and on the 18th April 1996 the District Court made an order for the delivery of the plaintiff into the custody of the Manchester police, pursuant to the provisions of s. 47(1)  (contained in Part III) of the Extradition Act, 1965 (hereafter “the 1965 Act”).

	The plaintiff then instituted these proceedings by special summons on the 19th April 1996, seeking an order for his release pursuant to s. 50 of the 1965 Act as amended.  The case was not heard until the 9th February, 1999, some part at least of the delay being attributable to the illness of the plaintiff.  In a written judgment delivered on the 5th March 1999, McCracken J. held that the plaintiff was entitled to an order directing his release.  From that judgment and order, the defendant now appeals to this court.  

	It would appear from affidavits sworn by members of An Garda Siochana that the offence which was the subject matter of the present proceedings first came to the attention of the Irish police in August 1995 when they were investigating a complaint of a sexual assault allegedly committed by the plaintiff on another person when he (the plaintiff) was living in Tallaght in 1990/91.  The investigating garda had asked that a statement be obtained in Manchester from the plaintiff’s stepdaughter and then learned, during a conversation by telephone with a member of the Manchester police, that the plaintiff had left the United Kingdom having pleaded guilty to an assault on the stepdaughter.

	An English police officer deposed on affidavit that, as a result of the failure of the plaintiff to appear at Manchester Crown Court for sentence on 7th December 1992, a warrant for his arrest was issued and he was circulated as wanted on the police national computer to alert police forces within the United Kingdom.  She further deposed that, as far as she was aware, knowledge of his whereabouts in Ireland was only received following the telephone conversation to which I have already referred between an Irish garda and an English police officer on the 16th August 1995.  

	The plaintiff in an affidavit said that he had pleaded guilty to the charge of indecent assault at the Manchester Crown Court having taken the advice of his lawyers.  He denied that he had in fact committed the assault and said that he had returned home to Ireland without awaiting sentence because he did not want to go to prison for something that he claimed he had not done.  The plaintiff further deposed that, on his return to Ireland,  he lived initially with his parents and claimed the disabled persons’ maintenance allowance.  In September 1993, he moved into his own flat in Kilmainham and notified the Department of Social Welfare of his change of address.  He said that at no time since he returned to Ireland had he attempted to hide his whereabouts and that information as to his address would have been easily obtainable.  He said that, although he was separated from his wife since 1990, he believed that his parents’ address would have been well known to her.  

	The plaintiff also said that for many years now he had been chronically ill with a severe steroid dependent asthma and had a separate condition of insulin dependent diabetes mellitus.  He said that he had been admitted to hospital on numerous occasions both in Ireland and in England as a result of his diabetic condition and that most admissions had been in life threatening situations.

	The plaintiff’s evidence as to his medical condition was confirmed by Dr. Luke Clancy, a consultant respiratory physician attached to St. James’ Hospital.  He said that, since the commencement of these proceedings in January 1996, the plaintiff had been admitted to hospital on three occasions and that on each occasion his condition was critical and life threatening.  He said that, should the plaintiff be extradited from this country, it was his opinion that this would have grave implications for his health and might pose a serious threat to his life.  

	The case essentially made on behalf of the plaintiff in the High Court and again in this court was that he was entitled to be released pursuant to 
s. 50(2)(bbb) of the 1965 Act which provides that a direction may be given by the High Court for the release of a person whose extradition is being sought to the United Kingdom when the court is of the opinion that
“By reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named and described therein of that offence and other exceptional circumstances it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under s. 47.”

	In the High Court, the learned trial judge concluded that the relevant period of delay to be considered was the period between the plaintiff’s failure to appear in Manchester Crown Court and the date of the hearing of these proceedings in the High Court.  He said that the delay in this case had been from December 1992 to February 1999 and that he was quite satisfied that this was a delay of the type which could be taken into consideration under s. 50.  (It should be noted, in passing, that s. 50 does not refer to a  “delay” but to “lapse of time”, a difference in wording to which I shall return.)

	Having pointed out that the length of time which had elapsed between the commission of the offence and the hearing of the proceedings in the High Court was a matter which had to be considered in conjunction with the other factors referred to in the section, and not in isolation, the learned trial judge said that there were two factors in the present case which might be regarded as “exceptional circumstances”.  The first was that the plaintiff had been living openly in Dublin since he left the United Kingdom and indeed initially resided with his parents, that he was in the social welfare system from an early stage and that the victim of the alleged assault was the daughter of his estranged wife.  The latter would have known his parents’ address and could have made it available to the police in Manchester.  The second was the deterioration in the health of the plaintiff.  The trial judge said that, taken on its own, the fact that the plaintiff had lived openly in Ireland would probably not be an exceptional circumstance.  He said, however, that the health of the plaintiff was “a very serious matter” and said that he had no doubt that this was an exceptional circumstance within the meaning of s. 50.

	Having regard to the plaintiff’s plea of guilty, the learned trial judge concluded that it would not be unjust to deliver him up under the 1965 Act.  However, because of the exceptional circumstances, he considered it would be oppressive and invidious so to do.  He accordingly ordered the release of the plaintiff.

	The provisions of s. 50(2)(bbb) of the 1965 Act have been considered by this court in two recent decisions.  In the first, Fusco .v. O’Dea No. 2 (1998) 3 IR 470, it was made clear that this court, in reviewing the decision of the trial judge, was entitled, and indeed bound to, draw its own inferences from the primary facts and to form an independent opinion as to whether it would be unjust, oppressive or invidious to allow the rendition of the plaintiff, while giving due weight to the conclusion of the trial judge.

	While it was not so expressly decided in that case, it seems clear, and indeed was not seriously disputed on behalf of the plaintiff in the present case, that the expression “lapse of time ... and other exceptional circumstances” is to be read conjunctively.  It follows that it is not sufficient for a plaintiff whose extradition would be otherwise justified to show that a significant period of time has elapsed since the commission of the offence referred to in the warrant or his conviction:  he must also satisfy the High Court that there are other exceptional circumstances which would render it unjust, oppressive or invidious to allow the extradition to proceed.  As Denham J. put it in her judgment
“The section requires that in addition to the lapse of time that there be ‘other exceptional circumstances’ such as to enable the exemption to apply.  It is for the plaintiff to prove that the exemption applies on the balance of probabilities.”

	Denham J. went on in that case to consider the significance which should be attached to the use of the expression “other exceptional circumstances” rather than “other circumstances” in the section.  She was of the view, with which I respectfully agree, that the use of the adjective “exceptional” reflects the policy of the legislation, i.e. that where extradition or rendition agreements exist between two countries and the legislature has passed the requisite legislation, extradition becomes mandatory, subject to the law and the Constitution.  

	Both Geoghegan J. in the High Court in that case and Denham J. in this court were of the view, with which I again respectfully agree, that the words “unjust, oppressive or invidious” have meanings which to some extent overlap.

	The provisions were further considered by this court in Kwok Ming Wan .v. Conroy (1998) 3 IR 527.  It is clear from the judgment of Hamilton C.J. in that case that, although the expression “lapse of time” is used rather than “delay”, the court is entitled to have regard to where the responsibility lies for the lapse of time, since that may affect the court’s conclusion as to whether it would be unjust, oppressive or invidious to deliver up the person whose extradition is sought.  He cited with approval the following passage from the speech of Lord Edmund-Davies in Kakis .v. Republic of Cyprus, (1978) 1 WLR 779 at p. 785:-

“... The answer to the question of where responsibility lies for the delay may well have a direct bearing on the issues of injustice and oppression.  Thus, the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time ...”

	The question as to what constituted “other exceptional circumstances” was also considered by Hamilton C.J. in that case.  There, the plaintiff had made no effort to conceal his presence in this jurisdiction and had lived and worked openly in Dublin.  He was also in contact with the gardaí and immigration authorities and had in fact applied for and obtained from the British Embassy an extension of his passport.  Hamilton C.J. was of the view, with which the other members of the court agreed, that these constituted “exceptional circumstances” which, taken in conjunction with a significant lapse of time, due in part at least to the dilatoriness of the prosecuting authorities and all the other circumstances of the case entitled the plaintiff to the order sought.  The other circumstances included the fact that the plaintiff in that case had married since his arrival in Ireland and had a family. 

	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. The Republic of Cyprus, in which he pointed out that the date of the hearing in the divisional court was the first occasion on which the particular ground for resisting extradition could be raised.  That is also the case with our legislation.  While it is true that Denham J. in her judgment in Fusco .v. O’Dea 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 Denham 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 December 1992 to the 19th April 1996 when the special summons was issued.   While the lapse of time is, accordingly, by no means of the same order as occurred in either Fusco .v. O’Dea or Kwok Ming Wan .v. Conroy, I am satisfied that it was sufficient to trigger a determination by the High Court as to whether there were “other exceptional circumstances” which, coupled with that lapse of time, would make it unjust, oppressive or invidious in all the circumstances to deliver up the plaintiff.
	As is clear from the authorities to which I have referred, one of the factors which may constitute an exceptional circumstance is the dilatoriness of the prosecuting authorities, if established, in applying for the extradition of the plaintiff.  It was, of course, the action of the plaintiff in absconding to this jurisdiction which led to that delay in the first place.  However, it is not in dispute that the only action taken by the Manchester Police to secure the plaintiff’s return was to circulate his name on the police national computer in the United Kingdom.  It is also not disputed that, had enquiries been made with the plaintiff’s estranged wife, who was the mother of the complainant, it should have been possible to ascertain his whereabouts in Ireland.  In these circumstances, I am of the view that the failure of the Manchester Police to take any steps to secure his extradition until the enquiry was made by the Irish garda in August 1995 was an exceptional circumstance which can be taken into account in considering whether his release should have been ordered by the High Court.  

	While it is true that the plaintiff in this case lived openly in Dublin during the period in question, that, of itself, would not constitute an exceptional circumstance within the meaning of the section.  It is to be borne in mind that in Kwok Ming Wan .v. Conroy, the plaintiff had been in contact with both the British Embassy and the Aliens Registration Office during the time he was living in Dublin.  The serious deterioration in the plaintiff’s health, however,  was treated by the learned trial judge as an exceptional circumstance which entitled the plaintiff to be released.  It was that factor which was the principal subject of debate in this court.

	Mr. Edward Comyn, S.C. on behalf of the defendant submitted that, since the state of the plaintiff’s health would not be a relevant consideration in determining whether he should stand trial in this jurisdiction, it followed logically that it could not constitute an “exceptional circumstance” which could be taken into account in applying the provisions in question.  In this case, he said, it could not be suggested that the plaintiff would be physically unable to attend the proceedings or would be incapable of instructing his legal advisers and that, accordingly, it followed that his health was not a factor to be taken into account in determining whether it was unjust, oppressive or invidious to deliver him up under the 1965 Act.  The condition of the plaintiff’s health would be relevant, if at all, to the question of sentence and it was clear that, under the law of the United Kingdom, it could be taken into account by the court in Manchester in imposing sentence.  It was also to be borne in mind, he said, that Part III of the 1965 Act dealt solely with extradition between this country and the United Kingdom and that, accordingly, this court could approach the case on the basis that appropriate hospital and medical facilities would be available to the plaintiff in the requesting jurisdiction.

	I am satisfied that Mr. Comyn is correct in submitting that these considerations, coupled with the plea of guilty, must lead to the conclusion that it would not be “unjust” in the circumstances of the present case to permit the plaintiff’s extradition.  That, however, does not conclude the matter.  Section 50(2)(bbb) has been engrafted onto the original provisions of the 1965 Act so as to enable a person to resist extradition on the ground that the lapse of time coupled with other exceptional circumstances would render his extradition  inter alia oppressive or invidious.  In the present case, had the extradition been effected with reasonable expedition, the plaintiff would have been sentenced and - assuming a custodial sentence was appropriate - would have served at least part of his term of imprisonment before his health began to deteriorate.  In the light of the undisputed evidence as to his present medical condition, I am satisfied that the significant lapse of time in this case, for which the prosecuting authorities in the requesting jurisdiction must bear some responsibility, has led to a situation in which to expose the plaintiff to further legal process in England in his present state of health would, in all the circumstances, be oppressive and invidious.  I am also satisfied that the inaction of the prosecuting authorities and the plaintiff’s state of health were “exceptional circumstances” within the meaning of section 50(2)(bbb) and that the learned trial judge was correct in ordering his release.

	I would dismiss the appeal.