Supreme Court dismisses appeal on extradition delay grounds, affirming High Court order for delivery to UK.

THE SUPREME COURT

Record No. 415/06

Geoghegan J.

Fennelly J.

Macken J.

IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACT 1965 (AS AMENDED)

BETWEEN/

ROBERT LLOYD HEYWOOD

Applicant/Appellant

-and-

THE ATTORNEY GENERAL

Respondent/Respondent

JUDGMENT of Mr. Justice Fennelly delivered the 29th day of October 2008

1. For more than ten years the United Kingdom has been attempting to extradite the Appellant to face trial in England on

serious charges of conspiracy to supply drugs and assault. There have been two sets of warrants and several earlier appeals

to this Court. By the most recent judgment on 26th October 2006 in the High Court, Peart J refused the Appellant’s

application for release on the ground of delay pursuant to section 50(2)(bbb) of the Act of 1965, inserted by section 2(1)(b)

of the Extradition (Amendment) Act, 1987 (hereinafter “paragraph (bbb)”). This is the appeal from that judgment.

2. The most recent judgment of this Court relating to paragraph (bbb) was that in Bolger v O’Toole [2008] IESC 38 (17th

June 2008). As I explained in my judgment in that case, it is necessary on an application of this kind to consider all the

circumstances of the case. Furthermore, this Court must consider that matter independently of the view formed by the High

Court judge. It must form its own view as to whether the facts justify a conclusion that it would be unjust, oppressive or

invidious to deliver the Appellant.

3. Accordingly, I must recount the history of the attempts of the West Mercia Constabulary to have the Appellant delivered

for trial to the jurisdiction of England and Wales pursuant to the Extradition Act, 1965 (the “Act of 1965”). That history

must include the first set of warrants and the various legal proceedings concerning them.

Chronology

4. Three warrants for the arrest of the Appellant were issued on 21st October 1998 by Telford Magistrates’ Court in the

West Mercia Commission area in England. Warrant “A” alleges that between 1st August 1995 and 7th August 1996 the

Appellant conspired together with four named persons to supply a controlled class A drug diamorphine (heroin). Warrant B

alleges that between January 1996 and the 1st May 1996 he unlawfully caused grievous bodily harm to one Lee Price with

intent to do him grievous bodily harm. Warrant “C” alleges that between the 1st day of March 1996 and the 31st day of

March 1996 he committed a similar offence against one Andre Clee. The last two offences are laid as being contrary to

Section 18 of the Offences against the Person Act 1861 and are alleged to have been committed at Telford, Shropshire,

England.

5. Detective Sergeant Jane Williamson of the West Mercia Constabulary, in her information on oath provided for the original

District Court hearing, described the underlying facts alleged against the Appellant as follows. The conspirators targeted

vulnerable heroin addicts to sell drugs for them. They used threats and other forms of intimidation and violence to achieve

their goals. One of their dealers was Lee Price who ran up large debts as a result of his addiction. He said that he had lost 25

bags of heroin; they were flushed down the toilet. He and Andre Clee were taken to a flat in Telford. Lee Price was

viciously assaulted by the Appellant and another conspirator. They twisted his ear and finger with pliers, attempted to drill

into his head with a cordless power drill and punched him.

6. Clee was allegedly assaulted on a later occasion: he was tied up by the Appellant and another. They viciously assaulted

him with a baseball bat. Other particularly cruel acts are alleged to have been committed upon him.

7. The Appellant says that he has never been questioned about or charged with any of these offences and that he moved to

Ireland in 1997. In January 1998, the West Mercia Police learned that the Appellant was living in Ireland. These

circumstances were investigated at the time of the Appellant’s first High Court proceeding in 1999 and 2000.

8. As already stated, the first set of warrants was issued by a judicial authority in England and Wales on 21st October 1998.

They were duly endorsed for execution in the State. The applicant was arrested at his then place of residence in Dundalk in

Co. Louth on 19th January 1999 and taken into custody.

9. The application for his delivery came before the District Court. On 5th May 1999, the necessary orders were made

pursuant to section 47(1) of the Act of 1965 by District Judge Mary Devins in the Dublin Metropolitan District Court for the

delivery of the Appellant into the custody of a member of the West Mercia Constabulary.

10. The Appellant remained in custody with consent to bail from the date of his arrest and so continued following the

making of the District Court order. He was unable to provide an independent surety to satisfy the terms of bail. He spent a

period of two years and four and a half months in custody after his arrest in January 1999.

11. On 11th May 1999 the Appellant issued a Special Summons in the High Court seeking his release pursuant to section

50(2)(bb) or (bbb) of the Act of 1965. He has placed before this Court all the pleadings and affidavits from those

proceedings, culminating in their dismissal by Finnegan J on 14th November 2000.

12. He said that he was a British citizen of Jamaican descent and of Afro-Caribbean ethnicity. In his grounding affidavit, he

alleged multiple acts of assault and harassment upon him by members of the West Mercia Constabulary. He claimed to have

been the victim of racial prejudice at their hands, and relied on paragraph (bb). Some of these events were linked to his

failure to observe a barring order which had been obtained against his wife (an Englishwoman to whom he was married in

1990). He claimed that he would not get a fair trial if returned to the jurisdiction of England and Wales.

13. Upon his arrest in Dundalk in January 1999, he said that he had not been arrested or charged in England. He said that in

January 1997 he had enough money to go to Ireland to “my girlfriend and my two children.”

14. In an affidavit in reply, Detective Sergeant Jane Williamson said that “on 8th September 1996, [the Appellant] was

circulated in the United Kingdom as being wanted in accordance with normal police procedures.” He was arrested in the

London Metropolitan Area in that month, but was released before his true identity was established. He was released on bail.

15. The Appellant was cross-examined at the hearing before Finnegan J, who rejected his complaint of prejudice by reason

of race pursuant to paragraph (bb). He made the following findings of fact:

“In breach of bail conditions the Plaintiff left Telford in late June or early July 1996 and went to London. In

January 1997 he came to Ireland where his girlfriend and two children were then living. While his girlfriend

lived in County Antrim the Plaintiff lived first in Wexford for some 15 months and thereafter in Dundalk. He

regularly visited his girlfriend in County Antrim.”

“With regard to the first mentioned offence the Plaintiff claims that he was unaware of any police activity in

relation to the alleged co-conspirators Messrs Thomas, Flanagan and Thomas until he read of their trial in

May 1997 and that in January 1997 he was not aware that the trial was pending. On the balance of the

probability I do not accept this. The Plaintiff's girlfriend is a sister of Flanagan and she was in contact with

the Plaintiff between January and May 1997 and as a matter of probability brought it to his attention. Again

as a matter of probability I find that the accused was aware that the police were anxious to make contact with

him in relation to the offences with which he is charged. The most likely reason for his deciding to live first in

Wexford and then in Dundalk and to make visits to his girlfriend in Co. Antrim rather than to live in County

Antrim was to reduce the possibility of him being arrested in Northern Ireland and being brought to trial. In

any event while on a visit to his girlfriend in County Antrim in February 1998 an occasion arose when he had

to give his name and address to the Police and he was informed by his girlfriend that the day following the

police were looking for him. Thereafter he remained in this jurisdiction as he told me in evidence he thought

he could not be arrested in this jurisdiction.”

16. The learned trial judge also rejected the complaint pursuant to paragraph (bbb) He concluded:

“In all the circumstances I am satisfied that the lapse of time from early September 1997 to date was due to

the Plaintiff having decided from September 1997 to remain out of the jurisdiction of the United Kingdom,

apart from visits to his girlfriend in County Antrim, with a view to avoiding arrest.”

17. The Appellant thus failed in his application for discharge pursuant to either paragraph (bb) or (bbb).

18. The Appellant served notice of appeal to this Court against the judgment and order of Finnegan J. On 31st May 2001,

he gave notice of withdrawal of that appeal. He had remained in custody with consent to bail at all times since his arrest in

January 1999.

19. No steps were then taken, as they should have been, to have the Appellant delivered pursuant to the District Court order

of 5th May 1999 within the period of one month provided pursuant to section 53 of the Act of 1965. The reason was that a

charge of assault was pending against him in the District Court.

20. On 6th July 2001, the Appellant was released from custody by order of O’Neill J, following an inquiry pursuant to

Article 40.4.2 of the Constitution. It was held that he had been in unlawful custody since 1st June 2001. It is common case

that he had been unlawfully detained for a period of five or six days.

21. The District Court charge which had been the basis for failure to deliver the Appellant following the withdrawal of his

appeal in May 2001 was disposed of on 22nd January 2002. The Appellant was acquitted.

22. On 9th February 2002, the Appellant was arrested for a second time and taken into custody on foot of the original

English warrants issued in 1998. An application was made to the High Court (O’Caoimh J) pursuant to Article 40.4.2 of the

Constitution for his release. This was dismissed. On 15th February 2002, the Supreme Court allowed the Appellant’s appeal

against the High Court order and ordered the Appellant’s release. In effect, the arrest of the Appellant on the original

warrants had been spent on 30th June 2001, when he had not been delivered within the period of one month following the

withdrawal of his appeal to this Court.

23. The original warrants now having been spent, new but identical warrants were issued by the Telford Magistrates’ Court

on 28th November 2002, a delay of more than nine months. These were received here by registered post on 9th December

2002 and sent to the Attorney General on 11th December 2002 so as to enable him to give a direction pursuant to section 44

of the Act of 1965. No documentation was available to the Attorney General for that purpose until 7th February 2003. The

warrants were approved by the Attorney General on 8th July 2003. They were endorsed for execution on 29th August 2003

by an Assistant Commissioner of An Garda Síochána. The Appellant was arrested at his place of residence in Dundalk on

1st September 2003.

24. On 18th September 2003, the Appellant applied to the High Court pursuant to Article 40.4.2 of the Constitution on the

ground that, following his release from custody on 15th February 2002, he could no longer be extradited for trial on the

offences named in the warrants. On 23rd September 2003, Herbert J dismissed that application.

25. The Appellant appealed to this Court against the order of Herbert J. The appeal was dismissed on 24th October 2003.

According to the Appellant’s written submissions, this Court remarked that the case had had an unfortunate history and

mentioned that the Appellant might have a case under paragraph (bbb).

26. On 5th December 2003, the Appellant issued a Special Summons pursuant to section 50 of the Act of 1965, relying on

lapse of time pursuant to paragraph (bbb). That is the present proceeding.

27. The Attorney General, following the Supreme Court decision of 24th October 2003, applied to the High Court for an

order pursuant to section 47 of the Act of 1965 for the delivery of the Appellant to England pursuant to the warrants. That

application was heard in February 2004 by Peart J together with the Appellant’s application pursuant to paragraph (bbb).

The learned judge held that the Attorney General had not established that any of the offences described in the three

warrants corresponded with an offence under the law of the State. He made an order dismissing the application of the

Attorney General. Accordingly, he held that it was unnecessary for him to deal with the application pursuant to paragraph

(bbb). The Appellant was released.

28. The Appellant had been in custody with consent to bail after his arrest on 1st September 2003 until 24th February 2004,

when he was released following the judgment of Peart J.

29. The Attorney General appealed the decision of Peart J to this Court, which allowed the appeal, following an extempore

judgment, on 14th March 2006. This Court, by order of 22nd March 2006, remitted to the High Court the application

pursuant to section 47 of the Act of 1965.

30. On 11th April 2006, MacMenamin J made an order varying the terms of bail previously set. The Appellant was able to

meet the revised terms and was released on bail for the first time on 28th April 2006.

31. The application pursuant to paragraph (bbb) was re-entered before Peart J. The Appellant filed further affidavits in

respect of his complaint of delay.

32. In particular, he introduced material concerning his personal life upon which strong reliance was placed at the hearing of

the appeal. It is best to quote the Appellant’s evidence on this point in full:

“I …say that it is significant that my personal circumstances have changed markedly since I last applied to the

High Court to have my terms of bail varied in November 2003 and more recently since the determination of

the extradition proceedings before the High Court. Since the end of 2002 I have been in a relationship with a

woman [name given]. On the determination of the substantive extradition proceedings before the High Court

in February 2004, I moved back to [an address in Dundalk] and in or about July or August 2004, I moved into

[another Dundalk address] with [her]. We have both now moved into [a third Dundalk address] which is

[her] father’s house. On 6th December 2005, she gave birth to our daughter….”

“I say that my reason for coming to Ireland in January 1997 was to be in closer proximity to my then

girlfriend, [name given], and our two children. [She] and I had commenced our relationship in the United

Kingdom and I followed her over here. That relationship was on and off in nature until it finally ended in

January 1999, but I say that I have nonetheless maintained a continuous contact as possible with the children

of that relationship. [She] has been living in County Antrim in Northern Ireland since my arrival in this

jurisdiction. When I first moved to Ireland I lived in Wexford for about fifteen months and I worked while

there……”

33. The entire matter came back before the High Court which made the orders pursuant to section 47 of the Act of 1965 on

11th April 2006.

34. Peart J determined the application pursuant to paragraph (bbb) on 26th October 2006. Peart J held that, while there had

been an exceptional lapse of time of the order of ten years from the date of the alleged offences, there were no other

exceptional circumstances for the purposes of paragraph (bbb). Consequently, he was not permitted to consider the further

and decisive question as to whether in all the circumstances it would be unjust, oppressive or invidious to deliver up the

Appellant pursuant to the orders made under section 47 of the Act of 1965.

35. The Appellant has filed detailed grounds of appeal and written submissions in support.

The principles

36. Section 50 of the Act of 1965, as amended by section 2(1)(b) of the Extradition (Amendment) Act, 1987 by the

insertion of paragraph (bbb) now provides, insofar as relevant:

(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in

accordance with this section.

(2) A direction under this section may be given by the High Court where the Court is of opinion that—

…………………………………………………..

"( bbb ) by reason of the lapse of time since the commission of the offence specified

in the warrant or the conviction of the person named or 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 section 47,

…"

37. In my judgment in Bolger v O’Toole [2003] 4 I.R. 222, cited above, I quoted the definitive dictum of Hardiman J in his

judgment in Coleman v O’Toole, [2003] 4 I.R. 222, at page 228 as follows:

“It will be observed that para. (bbb) involves the following concepts:-

1. (a) the lapse of time;

2. (b) and other exceptional circumstances;

3. (c) such that having regard to all the circumstances;

4. (d) it would be unjust, oppressive or invidious to deliver up the plaintiff under s.47.

The first two concepts are conjunctively, not disjunctively, expressed. As a result of this, in my view, the lapse

of time must itself be exceptional and there must be other circumstances, themselves exceptional, available to

be considered under the section. These circumstances, of lapse of time and otherwise, must be placed in the

context of the entire circumstances of the case. Thus considered, they must be such as render it unjust,

oppressive or invidious to deliver up the plaintiff, before relief can be granted.”

38. This means that there are three stages to the examination. The first is whether there has been an exceptional lapse of

time. That means simply an exceptionally long period. The focus is on the length of the period, in a neutral sense, without

any reference to blame or responsibility. There is no contest on that issue in this case.

39. The second question is whether the lapse of time is accompanied by other exceptional circumstances. At this point, I

note that Peart J expressed the view that, once he had considered lengthy periods of time to be exceptional under the first

heading, to consider them again under the heading of other exceptional circumstances would be “to engage in an exercise

in double counting” and that other exceptional circumstances must consist of matters other than that lapse of time. I do not

think this is in accordance with the statement of Hardiman J, quoted above, or with the analysis adopted in my own

judgment in Bolger v O’Toole. At the second stage, it is permissible to examine individual periods of time with a view to

deciding whether, for any reason, they are exceptional. At the first stage, on the other hand, the Court is not concerned with

the reason for the lapse of time; it simply looks at its length. In M.B. v Conroy [2001] 2 I.L.R.M. 311, Keane C.J., with

whom the other members of the Court agreed, held, at page 318, that “one of the factors which may constitute an

exceptional circumstance is the dilatoriness of the prosecuting authorities….in applying for the extradition of the

plaintiff.”

40. The third stage arises only if the first two requirements have been satisfied, namely the presence of exceptional lapse of

time and other exceptional circumstances. At that third stage, the Court will consider all the circumstances of the case before

it can reach a conclusion that it would be unjust, oppressive or invidious to deliver the applicant pursuant to the order made

under section 47.

41. It is also important to bear in mind the statement of Denham J in Fusco v O’Dea (no. 2) [1998] 3 I.R. 470, at page 508:

“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. The section requires that there be "other exceptional circumstances",not "other circumstances".

The fact that the exemption is defined so strongly is in keeping with the nature of extradition where once the

executive branch of Government has made a policy decision that 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. Thus, it is understandable that exemptions are strongly defined in the

legislation. However, they must be strictly construed.

The word "exceptional" indicates that the exemption will be rare, will be the exception, unusual.”

Consideration of the application

42. It is not in dispute that there has been an exceptional lapse of time since the dates of the alleged offences. That period of

time was of the order of ten years by the date of the hearing in the High Court.

43. At the hearing of the appeal, Ms Aileen Donnelly, Senior Counsel, submitted, on behalf of the Appellant that the

following elements in the history of the case constituted exceptional circumstances;

1. Culpable delay or dilatoriness by both the UK and Irish authorities;

2. The fact that the Appellant had spent a period of three years in detention;

3. That for two, admittedly short periods, the Appellant was unlawfully detained to the extent that his release was ordered,

in one case by the High Court and in the second by this Court;

4. That the Appellant had lived openly in Dundalk and formed a family life in the jurisdiction;

5. The combination of these elements, which can in itself be exceptional.

44. Ms Donnelly laid particular emphasis on the period from May 2001 to September 2003. In my view, she is correct to

focus on this period. The period from 1996 (the date of the alleged offences) or from when the Appellant came to Ireland in

January 1997 was effectively examined by Finnegan J in his judgment of November 2000. The claim of delay pursuant to

paragraph (bbb) was determined against the Appellant. Finnegan J considered that the Appellant had fled from the

jurisdiction of England and Wales. His presence in Ireland was not known to the West Mercia Constabulary until January

1998. Thereafter, there were some delays, but none were exceptional. The Appellant chose to appeal the decision of

Finnegan J, but withdrew his appeal in May 2001. Thus, he can complain of delay in the sense of an exceptional

circumstance only from that date.

45. From May 2001, I am satisfied that there were periods of delay which qualify as exceptional circumstances. Firstly, the

State failed to deliver the Appellant, within the period of one month permitted by section 53 of the Act of 1965 pursuant to

the then existing and enforceable orders, following the withdrawal of his appeal on 31st May 2001. This was based on the

legally unacceptable excuse that there was a pending prosecution in the District Court. All of this led to the unlawful

detention of the Appellant and his release pursuant to the order of O’Neill J, itself an exceptional circumstance.

46. Thereafter, there was delay and dilatoriness by both the Irish and UK authorities. The former believed (wrongly) that

the Appellant could be re-arrested on foot of the 1998 English warrants. This led to a delay until February 2002 when he

was arrested, as it happens, unlawfully. This is a period for which this State is responsible. Even after the misconception

was removed by the Supreme Court order of 13th February 2002, there was further delay, on the English side, until

November 2002 in having new warrants issued. There should have been no delay in issuing the new identical warrants.

47. However, I do not believe that the period between 28th November 2002 (date of issue of new English warrants) and 1st

September 2003 (date of arrest of Appellant) was exceptional. I have set out the various steps in that chronology above. All

steps in the process were normal and required. No doubt, some could have been taken more quickly, but none of them, in

my view, amount to exceptional circumstances.

48. I do not think the detention of the Appellant from his arrest in January 1999 until his release in July 2001, other than the

period of unlawful detention of some six days at the end of that period constitutes an exceptional circumstance. Terms of

bail were set, but the Appellant was unable to meet the terms, in particular he was unable to provide an independent surety.

The length of time does not qualify, for reasons already given. Nonetheless, the fact of detention may be considered, at the

third stage, as part of the entire circumstances of the case.

49. The Appellant relies on the decision of this Court in Kwok Min Wan v Conroy [1998] 3 I.R 527 in support of his

argument that he has established a family relationship in this jurisdiction and that this fact should be considered an

exceptional circumstance. Hamilton C.J., at page 537 of his judgment, dealt with the issue in that case as follows:

“The "exceptional circumstances" which appear to me to arise in this case are, that the plaintiff made no

effort to conceal his presence in this country, lived and worked openly within the jurisdiction, was in contact

with the gardaí and immigration authorities and in fact applied for and obtained from the British Embassy an

extension of his passport, there being no evidence of an attempt to conceal his identity.”

50. The significance of that passage is that, at a time when his extradition was being sought by the British authorities, the

British Embassy granted the plaintiff a new passport, while he was resident in this jurisdiction. In addition, the report

discloses that the plaintiff had lived openly in Dublin, made no attempt to conceal his whereabouts, had a number of

contacts with gardaí from the Aliens Registration Office during the course of which he produced his passport, that he had

married and had three children, purchased a house, established a business, which he carried on, and which his wife said that

she could not carry on her own and generally has behaved as a responsible person.

51. In my view, the evidence offered by the Appellant in the present case comes nowhere near qualifying for consideration

as an exceptional circumstance under this heading. He merely alleges that, having come to Ireland to be closer to one

girlfriend, who was in fact living in Northern Ireland, he formed a further relationship with a second woman and had a child

by her. The facts are hugely different from those of Kwok Min Wan v Conroy.

52. Thus, the Appellant has established exceptional circumstances in the form of the delays between May 2001 and

November 2002, combined with two periods of unlawful detention.

53. In my own judgment in Bolger v O’Toole, I adopted a comprehensive approach to consideration of lapse of time. The

time must be assessed as a whole combined with the weight to be attached to individual periods within the period. I said that

consideration of “all the circumstances…… must necessarily encompass the entire of the period of lapse of time. The

applicant is not entitled to cherry-pick, to say that the authorities are to blame for part of the period and to ignore the

rest.”

54. In the present case, the Appellant is entitled to complain about undue delay or dilatoriness for a period of some eighteen

months of the entire period of ten years. That must be set against the initial period from 1996 to May 2001, which was

composed of an initial period dating from his departure (to use a neutral word) from England, the discovery that he was in

Ireland, the issue of the warrants and his subsequent unsuccessful legal challenges up to May 2001. The period following his

arrest in September 2003 has been taken up with unsuccessful legal proceedings in the High Court and Supreme Court.

Admittedly, he was initially successful in his High Court opposition to the making of the orders under section 47, but he

cannot blame the respondent for any delay in that respect.

55. He is entitled to have placed in the balance the two short periods of unlawful detention. He also contended at one stage

that he could not be sure that his periods served in detention would be taken into account upon sentence by an English court

if that were to arise. That is obviously a matter for the English courts. It is well established that our courts will, in the

absence of clear evidence to the contrary, presume that the courts of the jurisdiction seeking extradition will treat the person

sought fairly and, in particular, that he will have a fair trial. To the extent that it is right and fair to allow credit for time spent

in custody, it must be assumed that the English courts will treat the Appellant appropriately and will make such allowance

when imposing any sentence as is just.

56. The final and decisive question is whether it would be “unjust, oppressive or invidious to deliver” the Appellant to the

jurisdiction of England and Wales.

57. That is a balancing operation. The established exceptional circumstances must be placed in the balance in favour of the

Appellant. He has established that he was unlawfully detained for two periods of some six days each and that there were

delays by the authorities of both jurisdictions in the period from May 2001 to November 2002. So far as time and delay are

concerned, I do not believe that the Appellant has shown that a balanced analysis of the entire period of ten years shows

that there is any unfairness or injustice. Furthermore, the Court must and I do, in addition, take into account the nature and

seriousness of the alleged offences. As alleged, they involved drug trafficking of a very serious kind associated with

particularly vicious assaults on two persons involved in that trade.

58. The totality of the circumstances of this case do not persuade me that the Appellant will be unjustly treated or oppressed

if he is delivered, or that it is in any way invidious that he should be delivered to and tried in the courts of England. I would

dismiss the appeal and affirm the order of the High Court, rejecting the application for release of the Appellant pursuant to

paragraph (bbb). Consequently, the orders already made by the High Court pursuant to section 47 of the Act of 1965 are

effective and enforceable.