Appeal by Quinlivan on escape documents dismissed

The Supreme Court yesterday dismissed an appeal by the Brixton Prison escaper, Nessan Quinlivan, against the High Court's refusal to make an order directing the production of documents relating to his escape.

The documents sought by Quinlivan (33), of Knockalisheen Avenue, Ballynanty Beg, Limerick, include unpublished reports on the alleged role of a prison officer and a detective sergeant in the escape of July 1991.

In an affidavit furnished by a UK detective constable for the Supreme Court appeal, there was no denial of Quinlivan's claim that his escape was facilitated in the way outlined by Quinlivan himself, that court noted yesterday.

Quinlivan wants the unpublished reports and other documents in preparation for his impending High Court appeal against a Dublin District Court order for his extradition to Britain.

He is at present on £70,000 bail awaiting that appeal. His extradition is being sought on foot of four warrants alleging conspiracy to murder and to cause explosions, escape from lawful custody and wounding with intent.

In the High Court last March, Mr Justice Kinlen was told Quinlivan will claim his escape from Brixton Prison was encouraged and assisted by a prison officer and a detective sergeant in the hope that he would lead the UK authorities to his "supposed associates" in the IRA.

Quinlivan is claiming that a number of inquiries and disciplinary hearings were held into the role of a named prison officer and British police officers in the Brixton Prison escape but were never published.

Orders for production of these and all documents concerning his "alleged escape" from Brixton Prison, including the reports of all inquiries conducted in its aftermath, were sought by Quinlivan against Deputy Garda Commissioner Noel Conroy and Assistant Commissioner Hugh Sreenan.

The High Court last April refused the application on the grounds that the Garda officers were not, and had not been, in possession, power or custody of the documents sought.

Quinlivan appealed to the Supreme Court and Mr Justice O'Flaherty delivered that court's reserved judgment yesterday.

The judge noted that, in an affidavit filed on behalf of the respondents by Det Constable Clive Robertson of the Metropolitan Police, New Scotland Yard, London, there was no denial of the allegation that Quinlivan's escape was facilitated in the way that he claimed.

The judge said it appeared the issue in the case was the relevance of the documents sought to be discovered in the light of the failure to deny Quinlivan's essential assertion that his escape was facilitated by the authorities.

If that is accepted by the High Court, when it comes to hear the substantive extradition appeal, that may well help to advance his submissions that the offences for which his extradition was sought are political offences, or offences connected with political offences, the judge added.

Mr Justice O'Flaherty said there was "an even more fundamental point". If a requesting authority, through its servants or agents, had facilitated the escape of a prisoner, how could it be said it was entitled to seek his return in all justice and equity?

While the situation was not expressly covered by Section 50 of the 1965 Extradition Act (which deals with political offences), it was within the High Court's inherent jurisdiction to deal with it.

The judge said he wished to emphasise that he regarded a charge against Quinlivan in relation to unlawfully and maliciously wounding a named man at Brixton Hill on July 7th, 1991, as distinct and separate from the other charges. A British police officer had claimed the man was attacked after the prison escape.

Mr Justice O'Flaherty said the High Court had held the documents sought by Quinlivan were not in the possession or power of the Garda officers. The reality of Quinlivan's application was that he had been unable to establish the relevance of the documents sought to any live issue in the litigation. Quinlivan was also unable to establish how any of the documents might advance his case having regard to the absence of conflict on the matters of fact asserted in the affidavit from Det Constable Robertson. Accordingly, he would dismiss the appeal, the judge said.