The Garda, English police and Customs and Excise in Britain "colluded" to unlawfully hold Mr John Gilligan (47) in custody in England, his counsel told a House of Lords appeal hearing in London yesterday. He was detained to allow Irish authorities to gather evidence against him on the charge of murdering the journalist Veronica Guerin, the appeal heard.
On the first day of a two-day hearing, Mr Colin Nicholls QC, for Mr Gilligan, told a panel of five law lords that the extradition to Ireland constituted an abuse of process. Mr Gilligan is charged in Ireland with the murder of Ms Guerin, unlawfully importing cannabis and possession of cannabis and firearms.
His trial in England on drugs offences was put on file in September 1997 after a Crown Court ruling that the Irish warrants for his extradition had precedence over the English offences. Mr Nicholls told Lord Browne-Wilkinson that immediately following Mr Gilligan's arrest at Heathrow Airport on October 6th, 1996, English and Irish police colluded with Customs and Excise to unlawfully hold him in custody.
There was no intention on the part of the Crown Prosecution Service to proceed with the prosecution on the English charges and as a result of his detention, Mr Nicholls argued, Irish warrants for extradition were drawn up and backed under the Backing of Warrants Republic of Ireland Act 1965.
The English proceedings continued before his trial was due to begin in 1997 only "to achieve some benefit to the Irish".
Mr Gilligan's arrest in October 1996 was bona fide, Mr Nicholls conceded, and he was committed for trial on the English charges. At the same time, however, he was under suspicion for Ms Guerin's murder in Ireland and his custody ceased to be bona fide "at the Crown Court stage or thereabouts" when the English authorities no longer intended to proceed against him on the English charges, Mr Nicholls said.
Furthermore, he argued that Mr Gilligan was held in custody while the extradition request was perfected. "The extradition request was in bad faith and was a manipulation of the court process."
Mr Gilligan is also challenging his extradition on the basis that the charge of murder on the Irish extradition warrant does not correspond to the same offence in English law.
In dealing with the specific charge of murder, Mr Nicholls argued that a magistrate in England must be satisfied that the corresponding offence - or double criminality - existed in English law before he could order Mr Gilligan's delivery to the Garda. The allegation against Mr Gilligan was that he "procured the killing of Veronica Guerin by supplying to another person the means for that person to do the killing with the result that that person was killed". However, using the example that the charge of embezzlement could amount to larceny in another country, Mr Nicholls argued that because the Irish warrant did not set out the conduct of the murder charge, and that the element of double criminality had not been satisfied, the warrant was "defective".
Yesterday's House of Lords hearing also considered a challenge against extradition in the case of Mr Edwin Ellis (42), an Irish man who is charged with unlawful carnal knowledge of an underage girl in Co Clare. Both cases are being heard in the Lords because each raises the issue of correspondence of charges set down in Irish and English law.
Mr Clive Nicholls QC, for Mr Ellis, said the test of correspondence had not been satisfied. In English law, carnal knowledge was defined as full or partial penetrative sex, but when the magistrate in Mr Ellis's case asked if that meant rape, he was told it did not.
The Irish warrant specified sexual assault but the nearest equivalent in English law, Mr Nicholls said, was indecent assault which had a wide definition including an unsolicited kiss or a pat on the bottom. Both hearings continue today.