Cornelius Stanton (plaintiff/ appellant) v Patrick O'Toole (defendant/ respondent).

Criminal Law - Extradition - Whether a corresponding offence - Whether unjust, oppressive to deliver the plaintiff up - Extradition Act 1965, as amended - Criminal Law (Rape) Act 1981 - Criminal Law (Rape) Act 1990.

The Supreme Court (the Chief Justice Mr Justice Keane, Mrs Justice Denham and Mr Justice Murray); judgments delivered 9 November 2000.

Pursuant to the Extradition Act 1965, as amended, an order should not be made for the rendition of a person if it appeared to the court that the offence specified in the warrant did not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months. When considering whether the offence is a corresponding offence, the court must look at the factual elements of the offence to see if they would constitute an offence in Ireland. When it comes to the words in the warrant, by which the factual content of the specified offence is identified, the correct rule is that those words should prima facie be given their ordinary or popular meaning unless they are used in a context which suggests they have a special significance.

The Supreme Court so held in dismissing the appeal and affirming the District Court order for delivery, including its recitation that the corresponding offence is rape, contrary to section 2 of the Criminal Law (Rape) Act 1981, as amended.

Feichin McDonagh SC and Iseult O'Malley BL for the plaintiff/ appellant; Diarmaid McGuinness SC and Sara Moorhead BL for the defendant/ respondent.

Mrs Justice Denham said that this was an appeal from the High Court whereby the plaintiff had sought his release pursuant to section 50 of the Extradition Act 1965, as amended.

In September 1993 the plaintiff had been arrested and charged with an offence before Glasgow Sheriff Court. In October 1993 he was granted bail subject to conditions, including that he attended for trial. The plaintiff failed to attend at Glasgow High Court on 15 August 1994 whereupon a warrant for his arrest was issued. This was not executed until December 1996 when information was obtained that the plaintiff had a fixed address in Cork. The Procurator Fiscal in Glasgow was instructed by the Crown Office in Edinburgh to the effect that an attempt should be made to bring the plaintiff back to Scotland. The warrant of 15 August 1994 was retrieved and a new warrant for the apprehension of the plaintiff was issued on 13 May 1998 from the High Court of Justiciary, Edinburgh.

The warrant was endorsed by the defendant, Assistant Commissioner of the Garda, on 19 June 1998 and executed on 22 June 1998 in County Cork. The plaintiff was brought before the District Court in the Dublin Metropolitan District on 2 November 1998 on foot of the warrant. The District Court ordered the delivery of the plaintiff into the custody of a member of the Strathclyde Police for conveyance to the High Court of Justiciary. The plaintiff appealed this order and the High Court held against the plaintiff.

Mrs Justice Denham said that at issue was the rendition of the plaintiff to Scotland and that the relevant statutory law was to be found in Part III of the Extradition Act 1965, as amended. Section 43(1) provided for the endorsing of the warrant for execution. Section 45 provided for the execution of the warrant and the bringing before the District Court. Section 47 provided for the making of an order for delivery by the District Court. Section 47(2) provided that the person should be discharged if it appeared to the District Court that the offence specified in the warrant did not correspond with any offence under the law of the State. Section 50 provided for the release of a person, if the High Court was of the opinion that the offence specified did not correspond with any offence under the law of the State which was an indictable offence or was punishable on summary conviction by imprisonment for a maximum period of at least six months. Section 50(2)(bbb) provided that the court may direct the release of a plaintiff if, by reason of the lapse of time since the commission of the offence, and other exceptional circumstances it would, having regard to all the circumstances, be unjust, oppressive, or invidious to deliver him up.

Mrs Justice Denham held that the documents grounding the application for the rendition of the plaintiff were valid on their face. Consequently, it was correct for the defendant to endorse the warrant.

Mrs Justice Denham said that the next issue was whether the offence was a corresponding offence. An order should not be made for the rendition of a person if it appeared to the court that the offence specified in the warrant did not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months. The District Court judge held that the offence specified in the warrant corresponded with an offence under the law of the State which was an indictable offence, namely section 2 of the Criminal Law (Rape) Act 1981, as amended. On appeal, the High Court judge held that the offence specified corresponded with the offence of rape contrary to the provisions of section 4 of the Criminal Law (Rape) Act 1990. Mrs Justice Denham said that the court on the appeal may determine the corresponding offence and that it was not bound either by the offence identified as the corresponding offence by either the District Court or the High Court.

Mrs Justice Denham said that the court must look at the factual elements of the offence to see if they would constitute an offence in Ireland. The particulars as set out in the warrant were full and graphic. She said that, in effect, the elements of the offence of the requesting State must be elements of an offence in Ireland.

Mrs Justice Denham said that in the warrant seeking the plaintiff there were words setting out particulars which concluded with the words "and rape her". She stated that it would not be sufficient to use the name by which the crime is known: Wyatt v McLoughlin [1974] IR 378.

Mrs Justice Denham said that in this case the requesting jurisdiction sought to set out the factual elements of the offence as charged in the warrant. The question was whether the factual elements as set out in the warrant would constitute particulars of an offence in Ireland. It could be any offence covered by the Extradition Acts and the ordinary meaning should be given to the words: Wilson v Sheehan [1979] IR 423. Mrs Justice Denham said that the word "rape" was used in the warrant. The ordinary meaning of the word "rape" was forcible sexual intercourse with a woman without her freely given consent. It was a common and freely used word which had this commonly understood meaning. She said that taking all the case law, the requirement to look at the constituents of the offence, the importance of the facts and the ordinary meaning of the words, the most relevant precedent was found in Harris v Wren [1984] ILRM 120. The issue of consent was not dealt with expressly on the warrant yet the offence of rape in Ireland includes an element of lack of consent. The word "rape" is one of unambiguous meaning.

Mrs Justice Denham was satisfied that if there was any room for ambiguity in the meaning of the word "rape" the particulars of what is alleged to have been done all add up to an accusation of sexual intercourse with that person without her consent, including factual elements relevant to the plaintiff's state of mind. The alleged offence was clear from the ordinary and unambiguous meaning of the words contained on the warrant. Mrs Justice Denham said that she was satisfied that alleged was the offence of rape contrary to section 2 of the Criminal Law (Rape) Act 1981, as amended.

Mrs Justice Denham said that the fact that there were many possible offences in the particulars did not invalidate the warrant. The certificate referred to an indictable offence. Clearly, while other offences could have been alleged in this case one alone was being prosecuted. As the documents referred to "an offence" it was appropriate to assume that the plaintiff would be prosecuted for the one offence alleged and certified. There was no issue of speciality argued in the case.

Mrs Justice Denham said that the conditions required by section 50(2)(bbb) to raise a case for the plaintiff had not been met. The delay in proceeding with the trial in Scotland had arisen because the plaintiff breached conditions of bail and fled. Once he was located in Ireland it was entirely proper for the authorities in Scotland to take steps to establish that after the lengthy passage of time there was still sufficient evidence available on which to prosecute the plaintiff. There were no exceptional circumstances within the meaning of section 50(2)(bbb). The plaintiff put no relevant evidence before the court as to his whereabouts after he fled his trial. This case was very different to the facts as established in Fusco v O'Dea [1998] 3 IR 470 and Wan v Conroy [1998] 3 IR 527. There was no evidence or circumstance put forward by the plaintiff which would establish that it would be unjust, oppressive or invidious to deliver him up.

Mrs Justice Denham said that she would like once again to request that extradition cases are fast-tracked in the High Court and Supreme Court. This required solicitors, counsel and the courts to manage extradition cases accordingly. Mrs Justice Denham said that the length of time it had taken to process this case through the Superior Courts was entirely inappropriate.

Mrs Justice Denham dismissed the appeal and affirmed the District Court Order for delivery, including its recitation that the corresponding offence is rape, contrary to section 2 of the Criminal Law (Rape) Act 1981, as amended.

The Chief Justice, Mr Justice Keane, concurred and indorsed Mrs Justice Denham's observation regarding the length of time taken to process the case through the Superior Courts. He stated that, given the nature of these cases, it was of critical importance that, while all the requirements of justice are met, they should be disposed of in as expeditious manner as is reasonably practicable.

Mr Justice Murray concurred with both judgments.

Solicitors: Garrett Sheehan & Co (Dublin) for the plaintiff/ appellant; the Chief State Solicitor for the defendant/ respondent.

Gillian Reid Barrister