|Judgments - In Re Ellis (Application for Writ of Habeas Corpus)|
In Re Gilligan (Application for a Writ of Habeas Corpus) (On Appeal From a Divisional Court of The Queen's Bench Division) (Conjoined Appeals)
Conclusion on the first warrant in Mr. Gilligan's case
My Lords, if this approach is adopted, it is plain that the element of correspondence was satisfied in respect of the warrant charging murder. The magistrate was entitled to act on the basis that what is murder in the Republic of Ireland would also be murder in England. And, in any event, if the alleged contract killing of the victim (an investigative reporter), did not amount to murder it would still be another indictable offence, i.e. manslaughter. I would reject the contrary arguments.
The other warrants in Mr. Gilligan's case
The points advanced in respect of the other warrants were as follows:(1)
My Lords, these are specious arguments in the context of the Act of 1965. The Divisional Court rightly rejected them: at 16A-E. In the case of each warrant there was an indictable offence under English satisfying the requirements of section 2(2). The submissions to the contrary must be rejected.
In the case of Mr. Ellis there are four warrants: two of unlawfully and carnally knowing a girl under the age of fifteen and two of sexual assault on a female. The specified particulars of the two offences of unlawful carnal knowledge are that between certain dates Mr. Ellis did unlawfully and carnally know one Mary Clohessy, a girl under the age of fifteen years. The specified particulars of the two offences of sexual assault on a female are that between certain dates Mr. Ellis did sexually assault one Mary Clohessy, a female.
Before the magistrates there was no evidence of the conduct underlying the offences specified in the offences and there was no evidence of Irish law on the juristic elements of the offences. The magistrates only had the warrants and accompanying certificates before them. Counsel for Mr. Ellis argued that in the absence of evidence the magistrates could not be satisfied that the Irish offences corresponded to indictable English offences. On 22 September 1997 the magistrates ordered Mr. Ellis to be returned to Ireland on the four warrants. There was an application for habeas corpus. Following the decision in Gilligan counsel did not feel able to pursue this argument in the Divisional Court. Before your Lordships' House counsel for Mr. Ellis did not in oral argument suggest that evidence was necessary on the correspondence issue. The thrust of his argument was that on the sparse particulars in the warrants magistrates were not entitled to conclude that the correspondence test was satisfied. For example, counsel speculated that the phrases "carnal knowledge" and "sexually assault" may mean different things in the Republic of Ireland and England. The arguments of counsel invited your Lordships to step outside the real world. The offences specified in the first two warrants would amount in England to the indictable offence of unlawful sexual intercourse with a girl under sixteen contrary to section 6(1) of the Sexual Offences Act 1956. The offences specified in the third and fourth warrants would in England amount to the indictable offence of indecent assault on a woman contrary to section 14(1) of the Sexual Offences Act 1956. The requirement of correspondence was plainly satisfied. The arguments to the contrary must be rejected.
GILLIGAN: ABUSE OF PROCESS
Mr. Gilligan argued before the magistrate that the magistrate had jurisdiction to stay the proceedings under the Act of 1965 as an abuse of the process. The magistrate ruled that he had no jurisdiction to entertain such an application. The Divisional Court upheld this ruling. Counsel for Mr. Ellis renewed this argument before the House.
My Lords, in agreement with the Divisional Court I am satisfied that the magistrate had no jurisdiction to entertain such an application. First, section 2(2) sets out in precise language limited statutory protections against oppression. It is inconsistent with a general abuse of process jurisdiction. The protection in 2(e) is particularly significant. It provides that no order shall be made of inter alia if there are substantial grounds for believing that the warrant was in fact issued in order to secure the return of the accused for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions. If an abuse of process jurisdiction existed there would be no need for such a specific protection. Secondly, an abuse of process jurisdiction would undermine the legislative purpose of simple and expeditious proceedings. It would open the door in England to an examination of the facts relating to crimes allegedly committed in Ireland and to the circumstances of investigations by the police in Ireland. It would necessarily permit wide ranging evidence, letters of request and discovery. It would create great scope for the delay of criminal proceedings. Thirdly, it must be borne in mind that in respect of extradition proceedings under the Extradition Act 1989 there is no abuse of process jurisdiction: In re Schmidt  1 A.C. 339. True it is that the Secretary of State's discretion under the Extradition Act 1989 is regarded as a protection against oppression. And this feature is not present under the Act of 1965. On the other hand, in respect of the Act of 1965 there is the countervailing consideration of longstanding and close ties between the Republic of Ireland and the United Kingdom. The process under the Act of 1965 is realistically regarded as essentially domestic. The Act of 1965 is premised on the basis that the Irish courts are well able to guard against abuses. I am therefore satisfied that a magistrate has no jurisdiction to entertain such an application.
In oral argument counsel for Mr. Gilligan submitted that, even if the magistrate has no jurisdiction to entertain an abuse of process application, the Divisional Court has an original jurisdiction to entertain such arguments. No such application was ever made to the Divisional Court. The point does not arise. In any event, I am satisfied that the language and purpose of the Act of 1965 rule out such an application to the Divisional Court. The legislature must be regarded as aware of the provision in section 10 of the Fugitive Offenders Act 1881, which empowered a superior court (as opposed to a magistrates' court) to discharge a fugitive when it would be unjust or oppressive to return him but nevertheless chose to make no such provision in the Act of 1965. The reasons are plain. Ireland has a special position in English law. And such a power would undermine the legislative purpose of a simple and expeditious procedure between neighbouring countries. In my view the High Court does not have jurisdiction to entertain an abuse of process application.
Having dealt with the legal position it is strictly unnecessary to discuss the factual basis for the allegation that there has been an abuse of process under the Act of 1965. It was suggested that the police authorities in the Republic of Ireland and in England were involved in a conspiracy against Mr. Gilligan. It is necessary to put the record straight. The two police forces quite properly co-operated. There was not an abuse of the process under the Act of 1965.
For the reasons given I assented to the dismissal of both appeals.
LORD COOKE OF THORNDON
Having had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn, I agree with it and add only some brief observations.
First, in ordinary language "correspond" is a somewhat flexible verb. One can say that something corresponds exactly or closely or broadly with something else. Dictionaries such as The Concise Oxford Dictionary, The Shorter Oxford Dictionary and Chambers include as synonyms "similar to" or "analogous to." I see no sufficient reason for treating the words in section 2(2) of the Act of 1965 as requiring exact correspondence of all the ingredients of offences. A general similarity should be enough and is present in these cases.
Secondly, judicial experience elsewhere has led me to value the inherent jurisdiction of a high court to prevent abuse of process in matters concerning extradition, rendition and the like, even although its exercise is to be reserved for rare cases. I accept, however, that the historical and current relationship between the United Kingdom and Ireland and the legislative pattern provide a special context in which it is not inappropriate in Irish cases for the United Kingdom judiciary now to renounce in favour of the Irish judiciary residual control of the endorsed warrant procedure on abuse-of-process grounds.
In any event I agree that there was no abuse of process in the case of Gilligan and have concurred in the dismissal of both these appeals.
LORD HOPE OF CRAIGHEAD
I have had the advantage of reading in draft the speeches which have been prepared by my noble and learned friends Lord Steyn and Lord Clyde. I agree with them, and for the reasons which they have given I too would dismiss both appeals.
The relationship between the UK and what is now the Republic of Ireland has always been a close one. It is founded upon a long history. And while in the course of time constitutional changes have led to the separate identities of the two states the close relationship has continued and remains today. The point is illustrated by the successive arrangements made for the transfer of offenders between the respective jurisdictions. In the earlier period simple procedures were provided under the Indictable Offences Act 1848 and the Petty Sessions (Ireland) Act 1851. After the constitution of Irish Free State in 1922 which became in 1949 the Republic of Ireland, it became evident that the former procedures were no longer available. That point was resolved in Reg. v. Metropolitan Police Commissioner, Ex parte Hammond  A.C. 810. Prompt action was then taken in both the U.K. and Ireland to secure a solution. The solution which was mutually arranged was by way of the backing of warrants, introduced in the U.K. by the Backing of Warrants (Republic of Ireland) Act 1965, with reciprocal provisions in Ireland embodied in Part III of the Extradition Act 1965. This procedure was and is distinct from the regime of the Extradition Act 1989 in the U.K. Indeed by section 3(2) the Republic of Ireland is specifically excluded from the definition of "foreign state" for the purposes of that Act and under The European Convention on Extradition Order 1990 (S.I.1990 No. 1507) the provisions of that Convention are not made to apply to procedures between the U.K and the Republic. This is a reflection of the special relationship between the two States, a relationship which also finds expression in the legislation relating to nationality and immigration. It is in the context of that special relationship that the present case requires to be considered.
The principle problem in the case arises out of the terminology of section 2(2) of the Act of 1965, and in particular the provision relating to the event that "the offence specified in the warrant does not correspond with any offence" under the local law of a stated degree of seriousness. The meaning of the word "correspond" may be sufficiently clear but a question arises as to what is involved in its application. It is common ground that an absolute identity is not required; but there is dispute as to the extent of the specification which the magistrate ought to have before he may find a correspondence. The appellants ask for a specification of all the essential ingredients of an English offence. To my mind that requires too high a standard. In my view it is sufficient that the material in the warrant specifies something similar or analogous to behaviour which constitutes an offence of the required gravity in the local jurisdiction.
I reach that conclusion on the following grounds. Firstly, the language of the Act itself supports such a view. In the ordinary use of words "correspond" looks only for some similarity or analogy in the comparison. The word is unqualified, and no requirement is imposed that the similarity has to be in all the essential ingredients. A substantial similarity or an equivalence is all that is needed. Secondly, the correspondence is to be with any offence, not simply the offence specified in the warrant. It is enough if it corresponds with some criminal conduct of the required degree of seriousness. That again points to the intention that a broad approach to the question of correspondence is appropriate. Thirdly, the history of the legislation supports a broad approach. Under the earlier provisions all that was required was a simple administrative indorsation of a warrant. The Act of 1965 was necessitated by the constitutional changes which had occurred but it is not to be expected that the necessary changes in procedure were intended to introduce any significantly greater elaboration in the technical requirements than were otherwise required. What was devised and introduced was a simple procedure, not involving any decision by the executive, but entrusting the critical decision to a magistrate or sheriff with the minimum of documentation. The degree of correspondence should not then be expected to be particularly precise. Finally, the purpose of the legislation is plainly to achieve a simple and expeditious method of transfer of persons between the United Kingdom and the Republic. Any approach which involves detailed investigation and fine analysis of facts or of law is not likely to be intended and is totally out of keeping with what the ends of justice require. I find no error in the approach taken by the magistrates in the two cases and in my view the Divisional Court took the correct approach to the problem.
This leads to the possible further question of the amount of material which the magistrate is entitled to have before him in assessing the matter of correspondence. Again here I consider that the Divisional Court was correct. The contrast in language between the first leg of section 2(2) "if it appears "and the second leg "if it is shown..." must reflect a distinction and I consider that while the second may well require the support of extrinsic evidence, the first should not usually require any. The first leg deals with the case where "it appears to the court that the offence specified in the warrant" does not correspond with an offence of the stated gravity in the local jurisdiction. That provision seems to me to require the magistrate to determine the matter solely from what is specified in the warrant. He should do that by construing the warrant in accordance with the ordinary use of language. While there may be circumstances where he requires elucidation of what is specified, in particular if there is some technical term or unusual word whose meaning is not known to him, explanation of that may be given. But beyond that, that is to say beyond the terms of the warrant sufficiently understood, he may not go. His task is to see if what is specified as an offence in the warrant corresponds with any offence in his own jurisdiction.
In deciding whether the offence specified in the warrant corresponds with some offence in the local jurisdiction I do not consider that it is useful to attempt a distinction between matters of fact and matters of law. Generally the specification of the offence will comprise allegations of conduct. The part played by the law is in the analysis of the factual elements necessary to constitute any given offence or in the construction of particular legal expressions. But if all the magistrate is required to do is to read the terms of the warrant and understand them by applying the ordinary meaning of the words used, then no fine or sophisticated analysis should be called for. The warrant will specify the ingredients of the offence. But that does not mean that every detail requires to be given in every case. In the case particularly of statutory offences the critical facts will require to be detailed. But the degree of specification which is required will be a matter of circumstances. In some cases, where the act allegedly done notoriously constitutes criminal conduct little detail may be needed.
The complaint in the present appeals was that the specification given in the warrants was in every case insufficient to enable the magistrate to make a valid determination upon the matter of correspondence. Certainly it is desirable in the interests of the effective implementation of the procedure that warrants should be drawn with care so that the magistrate will readily be able to decide whether there is or is not a corresponding offence. But I have no difficulty in holding that, with the exception of the two warrants relating to Gilligan identified by the Divisional Court, the magistrates were amply justified in concluding that there was a correspondence with offences in England. The strongest case for the appellants was in my view that relating to the warrant against Gilligan where the statement of offence read "Murder contrary to Common Law and Section 4 of the Criminal Justice Act, 1964 and as provided for in Section 2 of the Criminal Justice Act , 1990" and the particulars of the offence read "You John Gilligan on the 26th June 1996, at Naas Road, Clondalkin, Dublin, did murder one Veronica Guerin." But even in that short information I consider that the magistrate was perfectly entitled to read the words as a layman would read them and hold that the law in his own jurisdiction included some offence of the required seriousness which corresponded with the offence specified in the warrant.
So far as the matter of the alleged abuse of process is concerned I am entirely persuaded that the Divisional Court was correct in holding that the magistrate had no jurisdiction to entertain a challenge based on such an allegation. A distinct issue arose as to the jurisdiction of the High Court to entertain such an argument. That question does not appear to have been raised by Gilligan in the application for habeas corpus. The complaint in his affidavit is of his being disallowed from presenting the point before the magistrate. Furthermore I am not persuaded that there is any substance in the point on the facts. He was lawfully arrested and detained under the English warrant for the purpose of criminal proceedings in England and there is nothing to support the suggestion that at some stage, through some supposed collusive arrangement between the Irish and the English authorities, the detention was prolonged until the former were in a position to proceed with their own warrants and make the application to have them backed under the Act of 1965. But in any event I am persuaded that the Act does not intend that the provision for redress given by section 3 extends further than a review of the matters which were within the jurisdiction of the magistrate. The question here is one of the construction of the provisions of the Act. Parliament has set out in section 2 the extent of matters which may be canvassed before the magistrate, and when one finds in section 2(2)(e) an express provision to deal with one kind of case where a prosecution may be being sought in circumstances which could amount to an abuse of basic rights and freedoms it seems to me particularly difficult to hold that an unlimited right of review was intended to be given in section 3. The necessity for expedition in the whole process and the respect for and confidence in the Irish judicial process which I have already identified as giving guidance to the approach to be adopted to this legislation also support the conclusion that a limited right of redress is intended by Section 3.
It was for the foregoing reasons which I believe are in sympathy with those which have been stated by my noble and learned friend Lord Steyn that I considered that these two appeals should be dismissed.
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