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In Re Gilligan (Application for a Writ of Habeas Corpus) (On Appeal From a Divisional Court of The Queen's Bench Division) (Conjoined Appeals)
HOUSE OF LORDS
Lord Browne-Wilkinson Lord Steyn Lord Cooke of Thorndon Lord Hope of Craighead Lord Clyde
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
IN RE ELLIS (APPELLANT)
(APPLICATION FOR WRIT OF HABEAS CORPUS)
IN RE GILLIGAN (APPELLANT)
(APPLICATION FOR A WRIT OF HABEAS CORPUS)
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)
JUDGMENT: 5 OCTOBER 1999
REASONS: 18 NOVEMBER 1999
I have read the speeches of my noble and learned friends Lord Steyn, Lord Cooke of Thorndon and Lord Clyde. I agree with their reasons for dismissing both appeals.
On 4 and 5 October 1999 the House heard two conjoined appeals. At the end of the hearing the House dismissed both appeals. This judgment records my reasons for agreeing to that way of disposing of the appeals.
In both appeals orders by magistrates for the return of individuals to the Republic of Ireland under section 1 of the Backing of Warrants (Republic of Ireland) Act 1965 were called into question on the grounds that the offences identified in the Irish warrants do not, as required by section 2(2), "correspond" with offences under English law, which are indictable offences or are punishable on summary conviction with imprisonment for six months. In a judgment given on 12 January 1998 the Divisional Court held in the case of Mr. Gilligan that the requirement of correspondence was satisfied:  2 All E.R. 1. At the same time the Divisional Court rejected a submission on behalf of Mr. Gilligan that the magistrate had erred in law in holding that he had no jurisdiction to entertain an abuse of process application. Applying the reasoning in Gilligan the Divisional Court on 27 January 1998 held in the case of Mr. Ellis that the requirement of correspondence was also satisfied in his case. The brief judgment is unreported.
It will be convenient to start by considering the issue of correspondence in the light of the case of Mr. Gilligan. Thereafter, I will consider the same issue in regard to the case of Mr. Ellis. Finally, it will be necessary to consider the separate issue of jurisdiction to hear an abuse of process application which arose in the case of Mr. Gilligan.
A forensic narrative
On 6 October 1996 at Heathrow Airport a Customs Officer arrested Mr. Gilligan. He was carrying a suitcase containing 330,000 in Irish punts and sterling bank notes. Between October 1996 and February 1997, Mr. Gilligan was charged with various offences contrary to sections 49 and 50(1) of the Drug Trafficking Act 1994. On 19 February 1997 a magistrate committed Mr. Gilligan for trial on three counts, namely, concealing or disguising property representing the proceeds of drug trafficking contrary to section 49(1)(a) of the Drug Trafficking Act 1994; attempting to remove from the jurisdiction property representing the proceeds of his drug trafficking contrary to section 1(1) of the Criminal Attempts Act 1981; and assisting another person to retain the benefit of that other person's proceeds of drug trafficking contrary to section 50(1)(a) of the Drug Trafficking Act 1994. Mr. Gilligan challenged the decision to commit him. On 16 May 1997 the Divisional Court quashed the committal on the first two charges: see Reg. v. Belmarsh Magistrates' Court, Ex parte Gilligan  1 Cr. App. R. 14. On 3 July 1997 Mr. Justice Kay granted leave to prefer a voluntary bill of indictment against Mr. Gilligan. On 11th July 1997 the voluntary bill was preferred.
On 29 August 1997, the Special Criminal Court in Dublin issued 18 arrest warrants against Mr. Gilligan, charging him with:
a) the murder of Veronica Guerin;
b) 5 counts of unlawfully importing cannabis resin into Ireland;
c) 6 counts of possessing cannabis resin for the purpose of selling or supplying;
d) 2 counts of possession or control of firearms with intent to endanger life;
e) 2 counts of possession or control of ammunition with intent to endanger life;
f) 1 count of unlawful possession or control of firearms;
g) 1 count of unlawful possession or control of ammunition.
The Republic of Ireland applied for the warrants to be endorsed in the United Kingdom under the Backing of Warrants (Republic of Ireland) Act 1965. On 3 September 1997 a Stipendiary Magistrate endorsed the warrants.
Mr. Gilligan's trial in England had been fixed for September 1997. On 8 September 1997 in the Crown Court at Woolwich the prosecution stated that it would subordinate the English criminal proceedings to the request for the return of Mr. Gilligan made by the Republic of Ireland. The domestic trial was adjourned and Mr. Gilligan was remanded in custody. On the same day Mr. Gilligan appeared before a Metropolitan Stipendiary Magistrate, under proceedings pursuant to section 2 of the Backing of Warrants (Republic of Ireland) Act 1965. Counsel for Mr. Gilligan asked for and obtained an adjournment. Counsel told the court that there would be a preliminary issue to determine whether the court had jurisdiction to consider allegations of abuse of process as Mr. Gilligan contended that he had been improperly arrested for domestic proceedings in the United Kingdom in an effort to hold him in custody while the extradition request from Ireland could be perfected. Mr. Gilligan contended that the application under the Act of 1965 had been made in bad faith. On 24 September 1997 Mr. Gilligan appeared before another Metropolitan Stipendiary magistrate. The magistrate heard legal argument and held that a submission of abuse of process could not be entertained in proceedings under the Act of 1965. On 22 October 1997 Mr. Gilligan appeared before a third Metropolitan Stipendiary Magistrate. The Irish Government produced evidence of Irish law from a practising member of the Irish Bar, in the belief that it was necessary to do so in order to satisfy the requirements of the Act of 1965. No evidence of the conduct constituting the Irish offences was adduced. On 28 October 1997 the magistrate rejected submissions that the offences specified in the Irish warrants were not shown to correspond with relevant English offences. He ordered Mr. Gilligan to be delivered up to Ireland. On 12 January 1998 the Divisional Court dismissed the Gilligan application for habeas corpus in respect of sixteen offences identified in the Irish warrants but allowed the application in respect of two warrants.
The Backing of Warrants (Republic of Ireland) Act 1965
At the outset the core principles of the Act of 1965, and the differences between the system contained in it and extradition under the Extradition Act 1989 must be explained. There is no extradition treaty between the United Kingdom and the Republic of Ireland. The process for rendition between the two countries of persons accused and convicted is modelled on the backing of warrants system long familiar to English law. Historically, magistrates in England only had local jurisdiction and a warrant was valid only in the jurisdiction of the issuing magistrate. A fresh warrant had to be obtained if an accused went to another county. In due course the practice developed that where an accused left the jurisdiction where a warrant was issued a justice who had jurisdiction in the area where the accused was residing would endorse the warrant so that it could be executed in that jurisdiction. Blackstone observed that "the practice of backing warrants had long prevailed without law": Commentaries on the Law of England, 7th ed., 1772, 290-292. Backing was a purely administrative process and the magistrate was not required to conduct any judicial enquiry. From the middle of the eighteenth century the process was put on a statutory footing. The successive statutes were progressively broadened in scope and laid down the duties of magistrates: see the review of the history in counsel's argument in Reg. v. Metropolitan Police Commissioner, Ex patre Hammond  A.C. 810, at 814-817. The system of backing of warrants was adopted in respect of the rendition of persons between the United Kingdom and the Republic of Ireland. It was in due course put on a statutory footing. Until 1965 it was regulated by the Indictable Offences Act 1848 and in the Petty Sessions (Ireland) Act 1851 both of which came into force at a time when the Republic of Ireland was part of the United Kingdom. Under the Act of 1851 the endorsement of a warrant by a magistrate was administrative only: the English magistrate merely had to be satisfied as to the authenticity of the signature of the issuing Irish magistrate. In 1922 the Irish Free State (Eire) was founded. In 1949 it became a Republic. In Reg. v. Metropolitan Police Commissioner, Ex parte Hammond a warrant endorsed by the Deputy Commissioner of the Garda Siochána (police) for execution in England was held to be unlawful because the Act of 1851, which was still in force, required the warrant to be endorsed by the "Inspector General," an office that had disappeared in 1922. At about the same time the Irish Supreme Court found that the system was unconstitutional: The State (Quinn) v. Ryan  I.R. 70. These decisions led to the enactment of the Act of 1965. The purpose of the Act of 1965 was to create appropriate machinery for the backing of warrants and to introduce specific safeguards in the interests of justice.
Section 1 of the Act of 1965 provides for the production and endorsement in the United Kingdom of warrants issued in the Republic of Ireland. Section 1(1) reads as follows:
(b) an application for the endorsement of the warrant is made to a justice of the peace in the United Kingdom by a constable who produces the warrant and states on oath that he has reason to believe the person named or described therein to be within the area for which the justice acts or on his way to the United Kingdom;
then subject to the provisions of this section the justice shall endorse the warrant in the prescribed form for execution within the part of the United Kingdom comprising the area for which he acts."
Once the requirements of the Act of 1965 are satisfied a magistrate is obliged to endorse the warrant: see Reg. v. Metropolitan Police Commission, Ex parte Arkins  W.L.R. 1593, D.C. Section 2 as amended provides as follows:
"(1) So soon as is practicable after a person is arrested under a warrant endorsed in accordance with section 1 of this Act, he shall be brought before a magistrates' court and the court shall, subject to the following provisions of this section, order him to be delivered at some convenient point of departure from the United Kingdom into the custody of a member of the police force (Garda Siochána) of the Republic, and remand him until so delivered.
(2) An order shall not be made under subsection (1) of this section if it appears to the court that the offence specified in the warrant does not correspond with any offence under the law of the part of the United Kingdom in which the court acts which is an indictable offence or is punishable on summary conviction with imprisonment for six months; nor shall such an order be made if it is shown to the satisfaction of the court -
(a) that the offence specified in the warrant is an offence of a political character, or an offence under military law which is not also an offence under the general criminal law; or
(b) that there are substantial grounds for believing that the person named or described in the warrant will, if taken to the Republic, be prosecuted or detained for another offence, being an offence of a political character or an offence under military law which is not also an offence under the general criminal law; or
(c) that the warrant is for the arrest of a person accused of an offence committed in Northern Ireland which constitutes an extra-territorial offence under the law of the Republic of Ireland as defined in section 3 of the Criminal Jurisdiction Act 1975; or
(d) that the person named or described in the warrant has been acquitted or convicted in a trial in Northern Ireland for an extra-territorial offence as defined in section 1 of the said Act of 1975 in respect of the same act or omission as that in respect of which the warrant is issued; or
(e) that there are substantial grounds for believing -
(1) that the warrant was in fact issued in order to secure the return of the person named or described in it to the Republic for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or
(2) that he would, if returned there, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions. . . "
Section 7 reads as follows:
(b) evidence with respect to the laws of the Republic may be given by affidavit or other written statement on oath, but a certificate purporting to be issued by or on behalf of the judicial authority in the Republic by whom a warrant was issued, or another judicial authority acting for the same area, and certifying that the offence specified in the warrant can be dealt with under the laws of the Republic in the manner described in the certificate shall be sufficient evidence of matters so certified;
(c) a deposition purporting to have been made in the Republic, or affidavit or written statement purporting to have been sworn therein, may be admitted if verified in the prescribed manner."
The critical provision is in section 2(2), namely the bar on return of the person "if it appears to the court that the offence specified in the warrant does not correspond with any offence under the law of the part of the United Kingdom in which the court acts which is an indictable offence or is punishable on summary conviction with imprisonment for six months."
The United Kingdom and the Republic of Ireland are neighbours with close ties. Thus there are no immigration controls between Ireland and the United Kingdom: section 1(3) of the Immigration Act 1971. Ireland is also excluded from the definition of foreign state in section 3 of the Extradition Act 1989. The special position of Ireland in each part of the law of the United Kingdom is the explanation for the system for the rendition of persons in accordance with a reciprocal system for backing and enforcing warrants between the two countries. Unlike the procedure under the Act of 1989, there is no application to the Secretary of State. He is not involved. The matter is dealt with between the Irish Garda Siochána and the United Kingdom police authorities. The hearing does not need to take place before the specialist Bow Street magistrates. The matter is heard by whatever magistrates' court is in the area where the person is arrested. Hearings are far less elaborate than extradition hearings before Bow Street magistrates. There is no requirement that prima facie evidence of guilt should be produced: Reg. v. Metropolitan Police Commission, Ex parte Arkins  1 W.L.R. 1593, Reg. v. Governor of Brixton Prison, Ex parte Keane  A.C. 204. The decision to order delivery of the prisoner is entrusted to the magistrate. It is intended to be a simpler and more expeditious process than extradition procedures.
A specimen warrant
In order to explain the nature of the issue of law it will be sufficient at this stage to refer to a specimen warrant. For this purpose I select the first and the most important warrant, namely that relating to the count of murder of Veronica Guerin. A schedule to the warrant describes the charge as follows:
The warrant was accompanied by certificates recording that it was issued by three judges of the Special Criminal Court of Ireland in accordance with the laws of Ireland and that murder is an indictable offence under the laws of Ireland. This warrant was duly endorsed by a Metropolitan Stipendiary Magistrate.
Counsel for Mr. Gilligan argued before the Divisional Court that the definition of murder in Ireland and in England may be materially different. In any event, he said that on the sparse particulars in the warrant there was no basis to think otherwise. Accordingly, he submitted, the requirement of correspondence was not satisfied. In a valuable judgment May L.J.  2 All E.R. 1 rejected this argument on the following grounds (at 16J-17A):
Counsel for Mr. Gilligan renewed his submission before your Lordships. I therefore must examine the merits of this argument.
The preliminary question
The question arises what materials the magistrate may take into account in deciding whether the requirement of correspondence is satisfied. In the Divisional Court May L.J. held (at 10G-H):
On appeal to your Lordship's House all sides accepted and supported this ruling. In these circumstances it is sufficient for me to say that given the purpose of the Act of 1965, as well as the wording of sections 1 and 2, I would respectfully adopt the reasoning and conclusion of May L.J. on this point.
The interpretation of the word "correspond" in section 2(2)
In renewing his submission on the interpretation of "correspond" counsel for Mr. Gilligan, and indeed counsel for Mr. Ellis, invited your Lordships to adopt a strict requirement of correspondence. Counsel attached great importance to a judgment of the Irish Supreme Court, which was decided in 1970. In the The State (Furlong) v. Kelly  I.R. 132, an English warrant recited that the accused had entered premises and did there "steal" a certain machine. The court commented on the difficulties created by the Theft Act 1968 "which could not have been foreseen in 1965." It was held that it had not been shown that the offence specified in the English warrant corresponded to the offence of theft under Irish law. The narrow reasoning of the court is reflected in the following passage in the judgment of O'Dalaigh C.J. :
In Wyatt v. McLoughlin  I.R. 378 the Irish Supreme Court came to the opposite conclusion in respect of a warrant which contained the words "and did thereby steal the lorry contrary to section 1 of the Theft Act 1968". It was held that the popular meaning of these words corresponded to larceny under Irish law. But the shadow of Furlong remained. Walsh J. observed with the agreement of the other members of the Irish Supreme Court (at 398):
This dictum also reflects a technical approach at variance with the natural and contextual meaning of "correspond" in the statute, and it runs counter to the purpose of the backing of warrants system which was intended to be simple and straightforward. It is clear that in subsequent cases the Irish Supreme Court has not followed the restrictive approach in Furlong. The view has prevailed that the words "steal" and "rob" in English warrants "correspond" to theft and robbery under Irish law: see Wilson v. Sheehan  I.R. 423; Hanlon v. Fleming  I.R. 489; O'Shea v. Conroy  2 I.L.R.M 527. It seems tolerably clear that Furlong does not represent current Irish law.
My Lords, "correspond" is not a term of art: it is an ordinary English word not used in any special sense and must be so applied. In this context it would be unwise to propose a synonym. It would not be right to embark on a search for a legal definition where the legislature thought none was necessary. If one substitutes another word or words for "correspond" one will be inviting magistrates to construe and apply other words: Cozens v. Brutus  A.C. 854, at 861F-H per Lord Reid. The task of magistrates is simply to apply the word "correspond" and to determine whether the test of correspondence is satisfied on the basis of a perusal of the warrants or, exceptionally, where technical words of expressions are involved, on all the materials before them. Counsel for the appellants invited your Lordships to approach the meaning of the word "correspond" on the basis that it either mandates a test based on the conduct of the accused or by a comparison of the juristic elements of offences specified in the warrant with juristic elements of putative English offences. While accepting that conduct and juristic elements are relevant matters in an examination of warrants there is no need to make the choice which counsel suggested. The correct approach is much simpler. For my part magistrates should approach the matter in the way indicated by the Divisional Court. May L.J. observed (at 10J-11C):
I would respectfully endorse this reasoning.