The High Court has refused to allow the extradition to the US of a Cork couple for the alleged aggravated kidnapping of their then nine-year-old grandson.
Mr Justice Michael Peart said yesterday that because Ethel and Timothy Blake would face a mandatory minimum sentence of six years if convicted in Illinois, their extradition would expose them to a sentencing regime which, if it existed in Ireland, would be regarded as unconstitutional.
On that basis, he declined to make the extradition order.
Their solicitor said later they were relieved the proceedings were over and were looking forward to going home to Cobh and "getting on with their lives".
The extradition of the Blakes, both aged 60, Lr Midleton Street, Cobh, was sought by the state of Illinois for the aggravated kidnapping of their grandson from his home in Chicago, Illinois, without his mother's consent, two years ago. It is alleged they knowingly by deceit enticed the child under 13 years of age to go to Dublin.
The Blakes were arrested at their home after it was alleged they had committed the offence.
The boy was later returned to his mother, who lives in the US with her husband and four other children. The mother, who is the Blakes' daughter, had opposed her parents' extradition.
In his reserved judgment, Mr Justice Peart said the issue was whether the mandatory sentence for the offence would expose the Blakes to a trial process in the US which would, if it was provided for in this State, be in violation of constitutional rights.
As sentencing was part of the trial process itself, a mandatory minimum sentence regime has an impact on the question of a fair trial itself, that being a fundamental right of the highest importance in the hierarchy of rights under the Constitution, he said.
The Oireachtas would have had to have specifically provided for extradition to such a sentencing regime, he said. The extradition treaty with the US clearly obliges this State to extradite but only subject to the law of the State.
This was an unusual case with "none of the ingredients which one might usually expect to exist in an aggravated kidnapping such as ransom demands, injury, use of firearms etc". Aggravated kidnapping in Illinois was a class X felony carrying a minimum of six years in prison and a maximum sentence of 30 years.
The court could not refuse extradition simply on the basis that if convicted they would receive a harsh sentence, Mr Justice Peart stressed.
Nor should the courts here express a view on the fact there was a mandatory minimum sentence for the crime, "even if it would be tempting to form a view that the particular circumstances of this case and those concerned would justify a judge being able to exercise some discretion to impose a penalty which fell well short of that which is legally possible".
The issue was not whether the regime in Illinois was harsh in relation to aggravated kidnap, when compared to what might occur here. Most so-called right-thinking people would regard the offence of aggravated kidnap at first glance to be one which should attract a severe punishment as the offence immediately conjured up images of violence, terrorising people, concealing people, including children, and ransom demands.
However, to require that severity to be indiscriminately imposed in respect of every offender whose crime fitted the definition of aggravated kidnap by way of mandatory minimum sentence, and to ignore the particular circumstances and the particular offender and all the circumstances relevant to sentence, gave rise to other issues here when considering an application for extradition for such an offence, he said.
He rejected other arguments advanced against the extradition and made clear his decision was based on the sentencing point.
He said the Blakes had enjoyed each other's company and care over many years since they were married and to be separated in such circumstances as would arise if detained in the US "would represent for each of them an appalling vista".