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Oxford Law Citator

7 The Supreme Court and Northern Ireland

From: The Irish Supreme Court: Historical and Comparative Perspectives

Brice Dickson

Content type:: Book content

Product:: Oxford Constitutions of the World [OCW]

Published in print:: 05 February 2019

ISBN:: 9780198793731

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(p. 141) 7 The Supreme Court and Northern Ireland

On several occasions the Supreme Court has had to deal with cases involving the relationship between the Republic of Ireland and Northern Ireland, the six counties of Ireland which opted to remain part of the United Kingdom in 1922.¹ The cases have usually raised constitutional issues but often political and criminal justice questions have been involved as well. Collectively the cases reflect the views of Ireland’s Supreme Court judges on how the relationship between the two jurisdictions should be managed from a legal point of view. Tempting though it may be to ascribe political motivations to what was said by some of the judges from time to time, it has to be admitted that finding solid evidence for political bias is difficult, even in the controversial field of extradition law. The judges have maintained the line that their function is wholly separate from that of the government and the Oireachtas and, to the extent that they have had discretion as to how to interpret certain phrases in the Constitution or legislation, they have exercised it in a manner which betrays no obvious prejudice. They have adhered firmly to the rule of law, even if at times they have differed amongst themselves as to what that entails. The chapter examines the cases more or less in chronological order, but it delays discussion of the Law Enforcement Commission’s 1974 report and of a relevant Article 26 reference in 1976 until the part of the chapter where discussion of extradition begins.

Arms Smuggling and R v Haughey

In the realm of criminal justice the Irish Supreme Court became indirectly involved in the troubles of Northern Ireland when allegations of arms smuggling arose in the early 1970s. In 1969 the Irish government had created a fund of £100,000 out of which sums could be paid to alleviate the distress experienced by nationalists in Northern Ireland as a result of the civil unrest there. A cabinet sub-committee was established to administer the fund and Charles Haughey (Minister for Finance) and Neil Blaney (Minister for Agriculture and Fisheries) effectively gained control of it. In May 1970 it transpired that money from the fund was being earmarked for the purchase of weapons to be used by nationalists in the North and the then Taoiseach, Jack Lynch, felt obliged to sack both Ministers. Almost immediately the Ministers, along with three others, were put on trial for illegal arms smuggling. The charges against Blaney ended when the District Court decided that he had no case to answer. Haughey went through the trial but, along with the three others, was acquitted in October 1970.² At the time no appeal was possible against an acquittal, so the Supreme Court did not become involved.

Page Id: 141References(p. 142) In the wake of the trial, however, the Dáil’s Committee of Public Accounts was tasked in December 1970 with investigating the way in which the fund set up by the government had been administered. Later the same month the Oireachtas passed an Act which specifically provided that, if a witness refused to answer any question to which the Committee might legally require an answer, the Committee could ‘certify’ that witness and the High Court, after conducting such an inquiry as it thought proper, could then punish that witness ‘as if he [or she] had been guilty of contempt of the High Court’.³ One such witness was so certified, this being Pádraic Haughey, the brother of Charles. An experienced High Court comprising the President of that Court (Andreas O’Keeffe)⁴ and Murnaghan and Henchy JJ—sitting without a jury—found in March 1971 that Pádraic Haughey was guilty of contempt and should be sent to prison for six months.⁵ He immediately appealed to the Supreme Court and his imprisonment was suspended while the appeal lasted. In June 1971 the Supreme Court unanimously allowed the appeal, holding that the offence in question was not actually contempt but rather an ordinary serious criminal offence the trial of which, under Article 38.5 of the Constitution, had to occur before a jury.⁶ As drafted, section 4(3) of the 1970 Act could not be read as requiring a trial by jury, so it was unconstitutional. These conclusions were set out in a single judgment of the Court but other issues were dealt with separately by each of the five judges.⁷ In addition, four of the five judges⁸ stated that, because Pádraic Haughey had given his evidence to the High Court by way of affidavit rather than orally and had not been given the opportunity to cross-examine witnesses who gave evidence against him, there were further grounds for concluding that his conviction was unsafe. The conviction was therefore quashed. Haughey spent no time in prison and could not be re-tried in relation to the same behaviour.

The situation in Northern Ireland was peripheral to the trials of both Charles and Pádraic Haughey, but the legal processes involved were keenly observed by unionists in Northern Ireland for traces of any political bias. However no objective observer could have any complaints on that front.⁹ While many may have thought the evidence against the defendants in the arms trial was convincing, the jury clearly did not feel that guilt had been proved beyond reasonable doubt. It took just 48 minutes to reach its conclusion. Pádraic Haughey’s case highlighted the idiosyncrasies of Ireland’s system for ensuring that the national Parliament is not misled, but in the United Kingdom this can also be a controversial issue.¹⁰ Whether the Irish judges were just as impartial when it came to applying the law on extradition between the Republic and Northern Ireland is a different matter, to which we will return later in this chapter.

The Sunningdale Agreement

The new Constitution which was approved in Ireland in 1937 made no specific reference to Northern Ireland. Indeed its wording suggested that Ireland had not been partitioned in 1921 for, under the heading ‘The Nation’, Article 2 provided that ‘The national territory consists of the whole island of Ireland, its islands and the territorial seas’. Moreover Article 3 stated that:

References(p. 143)

Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the like area and extent of application as the laws of Saorstát Éireann and like extra-territorial effect.

To many in the Republic these two provisions were articles of faith. It was difficult for them to accept that, if the serious civil unrest which broke out in Northern Ireland in 1969 was to be brought to an end through political compromise, it would be necessary to reassure the majority population of Northern Ireland that their status within the United Kingdom was in the meantime guaranteed. After the suspension of Northern Ireland’s Parliament in March 1972, and the consequential transfer of powers to the Secretary of State for Northern Ireland within the British government under ‘direct rule’,¹¹ new proposals for restoring devolution were put forward by the British government in a White Paper in March 1973.¹² These suggested that a Northern Ireland Assembly should be elected, with committees whose members would reflect the balance of political parties represented in the Assembly. The committees would be associated with each Northern Ireland Department and their chairs would be the heads of those Departments and together form the Northern Ireland Executive. Pending agreement on the devolution of powers the committees would have only advisory functions. Most of these proposals were put into law through the Northern Ireland Assembly Act 1973¹³ and the Northern Ireland Constitution Act 1973.

Section 1 of the latter declared that:

Northern Ireland remains part of Her Majesty’s dominions and of the United Kingdom, and it is hereby affirmed that in no event will Northern Ireland or any part of it cease to be part of Her Majesty’s dominions and of the United Kingdom without the consent of the majority of the people of Northern Ireland voting in a poll held for the purposes of this section in accordance with Schedule 1 to this Act.¹⁴

The Irish government fully accepted that principle and went along with the plan to sign a formal agreement to that effect and register it as a treaty at the United Nations. Elections to the Northern Ireland Assembly took place on 28 June 1973. The Assembly met for the first time a few days later but attempts to set up an Executive failed. Eventually further talks involving all the local political parties and the British and Irish governments were arranged for a four-day period in December in the small town of Sunningdale in Berkshire.

Under the resulting Sunningdale Agreement—though in fact only a communiqué was issued, not a formal agreement¹⁵—a power-sharing Executive was established on 1 January 1974. But there was also to be a Council of Ireland. This was to comprise a Council of Ministers with executive and harmonising functions and a consultative role; it would have at least seven members drawn from the Irish government and seven from the Northern Ireland Executive. There would also be a Consultative Assembly with advisory and review Page Id: 143References(p. 144) functions, with 30 members from the Dáil and 30 from the Assembly. The Council of Ireland would have a Secretariat and areas would be identified in relation to which the Council would take executive decisions, such as the exploitation and conservation of natural resources, agricultural matters, trade and industry, electricity generation, tourism, transport, public health, sport, culture and the arts. The Oireachtas and the Assembly would have to enact legislation setting out the precise functions to be devolved to the Council.

As regards the specific topic of law and order, the British government promised to discuss the devolution of responsibility for policing to the Northern Ireland Executive as soon as the existing security problems were resolved and the new institutions were working effectively. The Irish government undertook to set up a Police Authority while the British government would review the membership of the already existing Police Authority in Northern Ireland and create a system for allowing complaints against the police to be dealt with not by the police themselves but by an independent body. In addition the British government reaffirmed its commitment to releasing some internees within the following three weeks and to ending internment altogether as soon as the security situation allowed for it. All parties also agreed that consideration should be given to how the principles of the European Convention on Human Rights could be expressed in domestic legislation in each part of Ireland and to whether further legislation or institutions were required to protect human rights.¹⁶

The Executive set up in January 1974 lasted only until May. It was suspended and then abolished by the UK government due to extensive disruption caused by a strike promoted by the Ulster Workers Council, a loyalist organisation strongly opposed to the idea of Irish ministers having a say through the Council of Ireland over matters relating to Northern Ireland. The Sunningdale Agreement was never turned into a formal treaty. The only aspect of it which had lasting impact was the one relating to the enforcement of the criminal law. Unionists were of the view that the Republic of Ireland needed to do more to bring to justice perpetrators of violent crime in Northern Ireland who then moved to the Republic. A way of dealing with this could not be agreed during the talks at Sunningdale but shortly thereafter the two governments set up a Commission to consider possible solutions ‘as a matter of extreme urgency’. As we shall see, this led to the Supreme Court having to assess whether the arrangements made for this purpose were consistent with the Irish Constitution.

Boland v An Taoiseach

While the Sunningdale Agreement was not to the liking of extreme unionists in Northern Ireland, it was also unsatisfactory in the eyes of extreme republicans, whether in Northern Ireland or the Republic. One such was Kevin Boland, a Fianna Fáil supporter who had always taken a hard line against the partition of Ireland and favoured a more interventionist approach by the Irish government to events in Northern Ireland. In 1970 he resigned as the Minister for Local Government when both Charles Haughey and Neil Blaney were sacked from the government prior to being charged with conspiring to import arms for use in Northern Ireland. Later that year he was expelled altogether form Fianna Fáil.

Boland reacted to the Sunningdale Agreement by initiating legal proceedings arguing that what the Irish government had agreed to was in breach of the 1937 Constitution. He sought an injunction stopping the government from entering into any international agreement which would limit the exercise of Irish sovereignty over any portion of the national Page Id: 144References(p. 145) territory. His leading counsel was initially Sean McBride SC, but he lost in both the High Court¹⁷ and the Supreme Court¹⁸ on the basis that what the Irish government had agreed at Sunningdale was an exercise of executive power and that the Courts had no power to review its legality. In his short ex tempore judgment in the High Court Murnaghan J (a nephew of James Murnaghan who had served on the Supreme Court from 1925 to 1953) said he could not accept that the Sunningdale Agreement had affected the rights of Irish citizens living in either part of Ireland, though he conceded that if it were translated into legislation those rights might be affected.¹⁹ Relying upon a phrase used by O’Byrne J in the Sinn Féin funds case,²⁰ Murnaghan J said ‘this Court must assume, until it is clearly established to the contrary, that any declaration of policy by the government is within the constitutional powers conferred on the government’.²¹ Presumably he intended to base this proposition on Article 28.2 of the Constitution, which reads: ‘The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the government.’ In any event he added that under Article 28.4.1 the government is responsible to Dáil Éireann and not to the courts:

In my opinion, it would not be consonant with what has been described as the ‘checks and balances’ contained in the Constitution, in relation to the three organs of State mentioned in Article 6.1 of the Constitution, that this Court should purport to usurp the functions of Dáil Éireann; I am far from convinced that this Court should concern itself with a declaration of policy by the Government which, in itself, cannot affect the legal rights of any citizen.²²

For good measure Murnaghan J relied as well on Article 29.4.1, which is more specific than Article 28.2 in stating: ‘The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the government’. He admitted, however, that courts could supervise the government’s exercise of its functions if ‘the circumstances are such as to amount to a clear disregard by the government of the powers and duties conferred on it by the Constitution’.²³

Having heard Boland’s appeal a month later, the Supreme Court announced on 22 February 1974 that it was dismissing it, but it waited a further week before publishing its reasons. FitzGerald CJ held that none of the three clauses in the communiqué relating to the Sunningdale conference relied upon by Mr Boland contained a present agreement,²⁴ but merely intentions as to what might happen in the future, so none of the clauses were capable of ‘being construed as any action by the government which would bring it within the jurisdiction of the Courts to supervise or restrain’.²⁵ O’Keeffe P²⁶ agreed with FitzGerald CJ and with the other judgments delivered later. The one concession he made to Boland’s position was that in his opinion it would clearly not be within the constitutional competence of the government to acknowledge that the State is not entitled de iure to jurisdiction over Northern Ireland. Budd J likewise held that the Sunningdale deal amounted to no more than declarations of policy and not an agreement as to the future of Northern Ireland.²⁷ The Page Id: 145References(p. 146) courts could not be called upon to pronounce on what the government proposed to do on any matter of policy which it was in the process of formulating.²⁸ Griffin J agreed that the courts had no authority to review government policies but he mentioned as well Article 29.6 of the Constitution, which stipulates that ‘[n]o international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas’. Like Murnaghan J in the court below, he was not prepared to accept the government’s claim that the Courts could never interfere with the exercise of its executive functions: he stated that if the government were to act in a way which contravened the Constitution it would be the duty of the courts to intervene when called upon to do so. Pringle J (a member of the High Court) agreed with all four of the preceding judgments.

It is obvious from this decision that each of the five judges in the Supreme Court thought it was premature for them to be asked to rule that the government had acted unconstitutionally at Sunningdale. They would all have been aware of the opprobrium to which such a ruling would have exposed the judiciary from politicians both north and south of the border. Nevertheless, it is arguable that the Supreme Court did not sufficiently fulfil its duty to review policies adopted by government to see if they violated principles of administrative justice or fundamental rights. It was left to Henchy J more than a decade later, in Crotty v An Taoiseach,²⁹ where the Supreme Court held that it would be unconstitutional for the government to ratify a particular treaty unless the Constitution was first amended, to assert that ‘in the conduct of the State’s external relations, as in the exercise of the executive power in other respects, the government is not immune from judicial control if it acts in a manner or for a purpose which is inconsistent with the Constitution’.³⁰

The Anglo-Irish Agreement and McGimpsey v Ireland

The next occasion on which Northern Ireland featured in a discussion of the Republic’s Constitution was McGimpsey v Ireland³¹ where, in a mirror image of the Boland case, two brothers who were members of the Ulster Unionist Party took proceedings arguing that the Anglo-Irish Agreement of 1985 was a violation of the Republic’s Constitution. The Anglo-Irish Agreement was struck between the British and Irish Governments at a time when the latest attempt to set up a power-sharing Executive and Assembly in Northern Ireland had failed. The attempt had followed the publication of a White Paper by the British government in 1982.³² The intention was that an Assembly elected in 1982 would initially debate matters and give its views on legislation proposed by the Secretary of State, with legislative powers then being devolved to it on a rolling basis if at least 70 per cent of the Assembly agreed or if a majority agreed and the Secretary of State was satisfied that the proposed devolution would ‘command widespread acceptance throughout the community’.³³ Unfortunately the Assembly was boycotted by nationalist parties and at times by the Ulster Unionist Party and in June 1986 the British government dissolved it.³⁴ The Anglo-Irish Agreement was an inter-governmental effort to produce an alternative to rolling devolution. It provided for the establishment of an Anglo-Irish Inter-Governmental Conference and Secretariat through which Irish Ministers would be able to express views on a range of matters relating to the Page Id: 146References(p. 147) governance of Northern Ireland. In some respects it could be perceived as ‘Sunningdale-lite’, but unlike the Sunningdale Agreement it was formally struck as a treaty and registered as such at the United Nations.³⁵ It was also overwhelmingly approved by a vote in the UK House of Commons and, much more narrowly, by a vote in the Dáil.³⁶

Unionists, however, were vehemently opposed to the Agreement. The leader of the Ulster Unionist Party went to the High Court in London to argue that it was illegal under UK law, but the judge quickly dismissed the claim by ruling that the court had no power to inquire into how the government exercises its prerogative power to enter into international agreements.³⁷ Even Mary Robinson, the future President of Ireland, felt that unionists were right to be opposed to the Agreement and she resigned from the Labour Party in Ireland when it lent its support to the document. Fianna Fáil was also opposed to the Agreement, but for the converse reason, namely that it formally recognized the de iure right of the United Kingdom to govern Northern Ireland.³⁸

The two McGimpsey brothers cleverly took advantage of Fianna Fáil’s position to bring a case to the Irish High Court arguing that in recognising the legitimacy of the present status of Northern Ireland the Agreement was repugnant to Articles 2 and 3 of the Irish Constitution and that the bodies established by the Agreement restricted the Irish government’s discretion concerning the State’s external relations, contrary to Articles 28 and 29 of the Constitution.³⁹ They also argued that in entering the Agreement the Irish government had neglected its duty to the majority (unionist) community in Northern Ireland. Barrington J accepted that the brothers had standing to bring the claim and that the government was not totally exempt from judicial review of the way it exercised its powers in the area of international relations,⁴⁰ but he stressed that a court would need to exercise appropriate judicial restraint in this field.⁴¹ He added that there is a presumption that treaties entered into by the government are compatible with the Constitution and that here the presumption had not been rebutted.

As regards Article 1 of the Agreement and whether it was inconsistent with Articles 2 and 3 of the Constitution in that it recognised the current status of Northern Ireland, Barrington J explored the argument put forward by counsel for the plaintiffs that there were two ways of interpreting Articles 2 and 3. The first was that those Articles asserted only a political right to Irish unity, while the second was that they asserted a legal right. The former approach appeared to be favoured by O’Higgins CJ in the Article 26 reference relating to the Criminal Law (Jurisdiction) Bill 1975⁴² and by Hederman J in the extradition case of Russell v Fanning.⁴³ The latter view appeared to be favoured by O’Keeffe P in the Supreme Court in Boland v An Taoiseach.⁴⁴ Barrington J said that his own preference was for the first of Page Id: 147References(p. 148) the two approaches but he was clear than on either approach Article 1 of the Anglo-Irish Agreement was not repugnant to either Article 2 or 3 of the Constitution.⁴⁵ He added that the proposed Inter-Governmental Conference did not mean that the Irish government was transferring its power to conduct foreign policy to a supranational authority. In that regard the case was ‘totally different’⁴⁶ from Crotty v An Taioseach,⁴⁷ where the Supreme Court had overruled the High Court and held that Ireland could not ratify the Single European Act without there being a change to the Constitution. In that case what was at stake was indeed the transfer of power to a supranational authority, namely the European Communities. Finally the judge did not accept that the Agreement reflected a breach of the government’s duty to protect unionists in Northern Ireland: the balance struck between different community interests there was a matter within the political judgment of the government and it could not be challenged by a court unless the balance was a clear violation of a provision in the Constitution.⁴⁸

An appeal against Barrington J’s decision was not heard by the Supreme Court until more than a year-and-a-half later, in March 1990.⁴⁹ Finlay CJ gave the lead judgment and rejected the appeal. Three of his colleagues⁵⁰ simply agreed with him and McCarthy J added a short judgment in which he agreed with the Chief Justice but made it clear that because the McGimpsey brothers had not proved their citizenship of Ireland he felt they could not challenge the government’s making of a treaty. As he succinctly put it, they cannot ‘approbate and reprobate’.⁵¹ The Chief Justice had also expressed ‘considerable doubt’ over whether even a citizen of the State had standing to challenge the constitutionality of government action if their sole purpose in doing so was to achieve an objective directly contrary to the purpose of the constitutional provision invoked.⁵² The five judges unanimously rejected the preference expressed by Barrington J that the national claim to unity was a political rather than a legal right.⁵³ In short, they reaffirmed the view expressed by Hederman J in Russell v Fanning⁵⁴ that the re-integration of the national territory is ‘a constitutional imperative’.⁵⁵ The Chief Justice then set out the official judicial position on the partition of Ireland:

Article 3 of the Constitution … is an express denial and disclaimer made to the community of nations of acquiescence to any claim that, pending the re-integration of the national territory, the frontier at present existing between the State and Northern Ireland is or can be accepted as conclusive of the matter or that there can be any prescriptive title thereby created and an assertion that there can be no estoppel created by the restriction in Article 3 on the application of the laws of the State in Northern Ireland.⁵⁶

However Finlay CJ, like Barrington J,⁵⁷ also referred to the fact that in Article 29.1 and 29.2 of the Constitution Ireland ‘affirms its devotion to the ideal of peace and friendly co-operation amongst nations’ and ‘its adherence to the principle of the pacific settlement of international disputes’.⁵⁸ Cleverly, the Supreme Court managed to square the circle: it Page Id: 148References(p. 149) upheld the Constitution’s aspiration for a united Ireland while at the same time endorsing an agreement which seemed to reinforce partition.

The Anglo-Irish Agreement 1985 ceased to have effect with the entering into force of the British-Irish Treaty which was agreed alongside the Multi-Party Agreement to form the Belfast (Good Friday) Agreement on 10 April 1998. One of the pre-conditions for that entry into force was that amendments to the Irish Constitution set out in the Multi-Party Agreement⁵⁹ would first have to be approved by a referendum. This was planned for Friday, 22 May 1998.

The Good Friday Agreement and Riordan v An Taoiseach (No 2)

At this point there was an intervention by Denis Riordan, a marine communications lecturer in Limerick and serial litigant of constitutional points.⁶⁰ He had already brought a case as far as the Supreme Court in which he unsuccessfully challenged a number of government decisions, such as the appointment of judges to positions on commissions or tribunals of inquiry and the appointment of a Minister of State to the office of Tánaiste (deputy Prime Minister), which was not a department of State.⁶¹ He now brought a further case in which he argued on three grounds that the referendum planned for 22 May was unconstitutional. First, he claimed that the Bill which the referendum sought approval for—the Nineteenth Amendment to the Constitution Bill—was in violation of Article 46 of the Constitution because it left it to the government to decide when the new Articles 2 and 3 should come into force (namely, when it was satisfied that other aspects of the Good Friday Agreement had been implemented).⁶² Second, he suggested that the proposed new Article 3 was inconsistent with the State’s right to exercise extra-territorial jurisdiction. Third, he professed that it would be unconstitutional to release prisoners under the terms of the Good Friday Agreement because the Constitution allocates to the President the right to commute a sentence.

Representing himself, Mr Riordan lost before Kelly J in the High Court just two days before the referendum was due to occur, whereupon he announced that he did not intend to lodge an appeal.⁶³ Voting went ahead but two months later Mr Riordan changed his mind and did appeal to the Supreme Court. In October 1998 he brought a further motion to the Supreme Court requesting additional remedies, including an order that a second referendum be held to validly amend Articles 2 and 3. The Supreme Court issued its decision on this motion in November, Barrington J issuing the lead judgment with which the other four judges concurred.⁶⁴ The Court rejected the relief sought and explained to Mr Riordan that there was no reason why the people of Ireland could not approve an amendment to Page Id: 149References(p. 150) the Constitution subject to the happening of a particular future event; by doing so here the people were not delegating to the government the right to amend the Constitution.⁶⁵

Despite this decision Mr Riordan continued his appeal against Kelly J’s decision. A single judgment was delivered for the Supreme Court by Barrington J on 20 May 1999. This reiterated some of what was said in the judgment on the appellant’s motion six months earlier but two points were added. The first was one that the Court had already made in Mr Riordan’s previous case challenging various government decisions.⁶⁶ It was that there could be no question of a law enacted by the Oireachtas being unconstitutional if it had first been approved by the people in a referendum: ‘That is why the President has no power to refer to the Supreme Court a bill containing a proposal to amend the Constitution for an opinion on its constitutionality’.⁶⁷ The second additional point clarified a matter which may have been left unclear in another earlier decision of the Supreme Court, Finn v Attorney General.⁶⁸ There the plaintiff unsuccessfully sought an injunction to stop the holding of a referendum on the Eighth Amendment to the Constitution Bill on the basis that the amendment was unnecessary since the right to life of the unborn child was already protected by the Constitution.⁶⁹ In the High Court Barrington J had suggested that the President might be able to refuse to sign a Bill which had been approved by the people in a referendum if the Bill included some other proposal (which, under Article 46.4 of the Constitution, it is not meant to do).⁷⁰ In Riordan v An Taoiseach (No 2) Barrington J, now in the Supreme Court, strongly implied that in ‘a situation which is even worse’ than that contemplated in Finn, the validity of the Act amending the Constitution could still not be questioned.⁷¹

The referendum held on 22 May 1998 resulted in a ‘yes’ vote of 94.4 per cent. The Nineteenth Amendment to the Constitution Act 1998 duly altered Article 29 of the Constitution so as to expressly allow the State to consent to be bound by the British-Irish Agreement of 1998, thereby making it impossible for a future constitutional challenge to be made to that Agreement. Articles 2 and 3 were not actually altered until 2 December 1999, when the Irish government declared (being satisfied that other aspects of the Good Friday Agreement had by then been implemented) that the re-worded Articles were now in force. Not coincidentally, this was also the date on which full powers were devolved to the Northern Ireland Executive by the British government and the cross-border bodies were formally established. The new Articles 2 and 3 read as follows:

Article 2

It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.

Article 3

(1) It is the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by Page Id: 150References(p. 151) this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution.
(2) Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the island.

The interpretation of these Articles does not appear to have since troubled the Irish Supreme Court. As will be explained in Chapter 10, however, the flow of migrants into Ireland during the 1990s and early 2000s led the Oireachtas to qualify the ius soli principle in Irish nationality law, whereby anyone born in Ireland was automatically entitled to Irish citizenship. The Irish Nationality and Citizenship Act 2004⁷² amended the existing law by providing that a person can acquire nationality through being born in Ireland (North or South) only if one of his or her parents has, during the four-year period preceding the birth, been resident in either part of Ireland for not less than a period aggregating three years. This amendment to citizenship law was possible without any change being made to Article 2 of the Constitution because at no point does that Article expressly confer citizenship on all people born in Ireland: it merely states that every such person is entitled ‘to be part of the Irish nation’. A further anomaly exists in so far as British citizens living in Ireland do not enjoy the same degree of equality there as Irish citizens do who live in Northern Ireland; Richard Humphreys, now a High Court judge, has suggested a further constitutional amendment to correct this.⁷³

Prisoner releases under the Belfast (Good Friday) Agreement were at issue before the Supreme Court in O’Neill and Quinn v Governor of Castlerea Prison.⁷⁴ The Criminal Justice (Release of Prisoners) Act 1998 was enacted by the Oireachtas in implementation of the Agreement but the two applicants were not considered to be ‘qualifying prisoners’ because they had been tried and convicted before the Agreement was reached (for, amongst other things, the manslaughter in 1996 of Garda Jerry McCabe in Adair, County Limerick). The five judges unanimously held that this did not amount to unequal treatment under Article 40.1 of the Constitution, even though other prisoners who had been tried and convicted before the Agreement were released. The two men then took their case to the Human Rights Committee of the United Nations (as Ireland, unlike the UK, has allowed the right of individual petition to that Committee since 1989), but they lost there too, the Committee ruling by a majority in 2006 that there had been no arbitrariness or improper discrimination in the men’s continuing imprisonment. In her comment on this ruling Joseph rightly points out that using ‘political necessities’—in this case support for the peace process in Northern Ireland—as a reason for limiting human rights could in other circumstances be a dangerous precedent.⁷⁵ Quinn was released in 2003 but O’Neill continued to be incarcerated until 2007.

Extradition

At the time Ireland was partitioned in 1922 arrangements for extradition between the United Kingdom and the Irish Free State⁷⁶ were governed by the Petty Sessions (Ireland) Act 1851.⁷⁷ This provided for warrants of arrest issued in one jurisdiction to be ‘backed’ (i.e. endorsed) in the other jurisdiction. In Ireland the backing could be done by police officers, Page Id: 151References(p. 152) while in the United Kingdom it had to be done by a judicial officer, usually a Justice of the Peace. In 1929, following partition, the High Court of Ireland effectively ruled in O’Boyle and Rodgers v Attorney General that this backing of warrants system could not apply between the two jurisdiction in Ireland because it was only ever envisaged as operating between Great Britain and Ireland.⁷⁸ In 1921 two men had been tried by a General Court Martial sitting in Belfast under the Restoration of Order in Ireland Act 1920 and were convicted of the murder of a Mr McDowell. Their death sentence had been commuted to life imprisonment but after spending about six years in prison they escaped and fled to the Irish Free State. When they learned that the Irish police were seeking to arrest them on the basis of a warrant issued in Northern Ireland and backed in the Irish Free State, the men successfully applied for an injunction from Meredith J preventing any such arrest, the inevitable implication being that if such an arrest were to occur it would be unlawful.

For the next 35 years or so, as Kelly puts it, ‘extradition across the Irish border in both directions appears to have been carried on reciprocally and informally by the respective police authorities without any lawful authority, or even ostensible authority, at all’.⁷⁹ However the nineteenth century system continued to operate between the Irish Free State and Great Britain and in 1937 the Supreme Court confirmed its constitutionality in The State (Dowling) v Brennan and Kingston.⁸⁰ The judges held that the 1851 arrangements remained in place under Article 73 of the 1922 Constitution because they had not since been changed by the Oireachtas. This was despite a finding by Gavan Duffy J in the High Court (albeit dissenting) that preservation of the pre-partition arrangements was incompatible with ‘the emergence of an Irish state, bound to protect its citizens’.⁸¹ After the enactment of the 1937 Constitution, that particular judge became reconciled to the majority view, which was reaffirmed by the Supreme Court in The State (Duggan) v Tapley in 1950.⁸²

Curiously, the Supreme Court changed its mind on this issue in 1963. In The State (Quinn) v Ryan⁸³ Philip Quinn was arrested in Dublin on the basis of an English warrant endorsed by the Irish police. He was ordered by a judge to be released but while he was waiting in the court’s precincts to talk to his legal representative he was apparently rearrested by the police and taken back into custody. He was then whisked to the border with Northern Ireland and later that evening placed on a boat to England. This shocking behaviour by the Garda Síochána, whether deliberate or simply mistaken, seems to have so enraged the Supreme Court judges that they felt prompted not just to reassert the inapplicability of the 1851 arrangements to the transfer of accused persons within Ireland but also to re-examine the constitutionality of the arrangements regarding transfers to Great Britain. Ó Dálaigh CJ agreed that the 1851 Act purported to authorise a person’s removal from the jurisdiction immediately, without the person being given an opportunity to invoke the courts;⁸⁴ this was because ‘[h]owever unreal, the theory was that an Irishman, as a subject of the Queen, should have been as happy, safe and as much at home in Britain as in Ireland’.⁸⁵ But rather than just decide that the 1851 Act should be read subject to the implicit proviso that no such removal should take place until the person in question has been given the opportunity to challenge their removal in a court of law (as the accused in Brennan and Kingston and Tapley had been allowed to do), Ó Dálaigh CJ concluded that ‘[t]he claim made on behalf of the police to be entitled to arrest a citizen and forthwith bundle him out of the jurisdiction Page Id: 152References(p. 153) before he has an opportunity of considering his rights is the negation of law and a denial of justice’.⁸⁶ The two earlier Supreme Court decisions were distinguished on the basis that they had not dealt with the specific point at issue in The State (Quinn) v Ryan; moreover the Brennan and Kingston case had been decided by the ‘former’ Supreme Court of the Irish Free State on a provision in the Irish Free State’s Constitution, the implication being that decisions of that Court were not binding on the ‘new’ (post-1961) Supreme Court even when interpreting similar provisions in the 1937 Constitution.⁸⁷

The other four judges agreed with Ó Dálaigh CJ’s judgment, but Walsh J added two important points of substance.⁸⁸ The first was that the protection given by Article 40.4 of the 1937 Constitution to the right to challenge one’s deprivation of liberty is, effectively, absolute:

[A] right to apply to the High Court or any Judge thereof is conferred on every person who wishes to challenge the legality of his detention. It must follow that any law which makes it possible to frustrate that right must necessarily be invalid having regard to that provision of the Constitution.⁸⁹

Walsh J’s second point related to the operation of the doctrine of precedent. Aware that at that time the House of Lords still doggedly adhered to the principle that it could not go against its own previous decisions on any matter, Walsh J stressed that the Irish Supreme Court:

… is the creation of the Constitution and is not in any sense the successor in Ireland of the House of Lords … I reject the submission that because upon the foundation of the State our Courts took over an English legal system and the common law that the Courts must be deemed to have adopted and should now an adopt an approach to Constitutional questions conditioned by English judicial methods and English legal training which despite their undoubted excellence were not fashioned for interpreting written constitutions or reviewing the constitutionality of legislation. In this State one would have expected that if the approach of any Court of final appeal of another State was to have been held up as an example for this Court to follow it would more appropriately have been the Supreme Court of the United States rather than the House of Lords.

Mac Cormaic has traced how at this time Brian Walsh was in regular correspondence with Justice William Brennan of the US Supreme Court,⁹⁰ and clearly this dictum was influenced by Walsh’s growing awareness of the accomplishments of that Court. In 1963 the US Supreme Court’s seminal decision in Brown v Board of Education⁹¹ was still a fairly recent memory.

Some five months after declaring the 1851 legislation to be incompatible with the Constitution, the Supreme Court considered charges of criminal contempt against two members of the Garda Síochána and two members of the London Metropolitan Police who had been involved in the Quinn case. Each of them was found guilty but, in light of their fulsome apologies, and of their supposed ignorance of the correct legal position in Ireland, they were spared any punishment.⁹²

The Extradition Act 1965, Bourke and Magee

The main impact of the decision in The State (Quinn) v Ryan was that it prompted new legislation in Ireland—the Extradition Act 1965. The government was already planning such Page Id: 153References(p. 154) legislation to enable it to ratify the Council of Europe’s treaty on extradition, which had been agreed in 1957. Part II of the Act duly covered extradition based on treaties while Part III dealt with extradition arrangements with Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands. By way of reciprocation the UK Parliament enacted the Backing of Warrants (Republic of Ireland) Act 1965. The arrangements were similar to the 1851 system in that they depended on a warrant issued in one jurisdiction being ‘backed’ in the other, but they differed in that they recognised for the first time the so-called ‘political offence defence’.⁹³ This was because Article 3 of the Council of Europe’s 1957 Convention allowed for such a defence. In Ireland’s Act provision was made for the release of a person whose extradition had been requested if the offence was a ‘political offence or an offence connected with a political offence’,⁹⁴ which mirrors the wording of Article 3. Despite the IRA’s border campaign of 1956–62, which had prompted the Republic to introduce internment,⁹⁵ the government of the day did not choose to qualify its acceptance of Article 3 to take account of how the political offence exception might operate vis-à-vis offences committed in Northern Ireland relating to the campaign to reunify Ireland.⁹⁶ Ireland duly ratified the Convention in 1966. The United Kingdom remained opposed to any general political offence defence so it chose not to ratify the Council of Europe Convention and in its Act allowing extradition from and to Ireland it limited the defence to where the offence was ‘of a political character’.⁹⁷ However in the United Kingdom’s legislation this bar was mandatory, meaning that if the offence was of a political character the person could not be extradited. In the Irish legislation the wording was discretionary: it said that if the offence was political or connected with a political offence the court ‘may’ direct that a warrant not be endorsed or that an accused person be released.

It was not long before the Irish Supreme Court was confronted with the argument that this apparently discretionary wording should be interpreted as if it were mandatory. This was in Bourke v Attorney General,⁹⁸ where police in England had requested the extradition of Mr Bourke for his alleged involvement in the escape from Wormwood Scrubs Prison in London of George Blake, a convicted Russian spy.⁹⁹ In the High Court O’Keeffe P ruled that George Blake’s offences were clearly political and that Mr Bourke’s offence in assisting him to escape was ‘connected with’ those offences even though it was not itself a political offence. He went on to hold, surprisingly, that although the legislation said that he ‘may direct’ Mr Bourke’s release he should interpret it as reading ‘shall direct’. The only justifications he gave for this conclusion were that the Attorney General, against whom the action was being taken, had conceded the point and that he did not have ‘very much choice as to what course to adopt’.¹⁰⁰ On appeal the Supreme Court came to the same conclusion, holding that the wording of section 50(2) of the Extradition Act 1965 was mandatory and not discretionary. Ó Dálaigh CJ pointed out that under section 11 in Part II of the 1965 Act (dealing with extradition generally) extradition must not be granted for offences which are political or connected with political offences; he then simply asserted that under section 50 in Part III of the 1965 Act (dealing with extradition between Ireland and the UK), despite its saying that a direction not to extradite may be given in those circumstances, ‘there can Page Id: 154References(p. 155) be no room for doubt that section 50 of the same Act is also a mandatory provision’.¹⁰¹ With respect, it is hard to see how the Chief Justice could have been so categorical on the matter. FitzGerald J did not dissent on that point but he did say that the words in section 50 'are quite plain and their meaning is quite clear’ and he did not think that Bourke's offence was itself either a political offence or connected with Blake's political offences.¹⁰²

In another case decided on the same day, The State (Magee) v O’Rourke,¹⁰³ the same five Supreme Court Justices, by 3 v 2, refused to extradite a man to Northern Ireland where an arrest warrant had been issued for his alleged involvement in housebreaking, driving without insurance, malicious damage and assaulting a police officer.¹⁰⁴ While the man in question, George Magee, did not argue that any of these offences were political in nature, he did claim that if he were returned to Northern Ireland he feared being prosecuted for his alleged involvement in a raid on military barracks in Holywood, County Down in 1963, seven years earlier. He swore an affidavit in connection with those fears and, because the police in Ireland were unable to rebut that evidence, it was believed. Thus, at a time when the troubles in Northern Ireland were becoming extremely serious the Irish Supreme Court was doing its best, as it saw it, to uphold the rule of law by refusing to take a course of action which was not wholly evidence-based. In the course of his judgment, with whom Walsh and Budd JJ agreed, Ó Dálaigh CJ said that:

In as clear language as perhaps one could expect in the circumstances, Magee has confessed to being concerned in the preparation of an armed IRA raid on Holywood military barracks. There can be little room for doubt that his action falls either within the category of ‘political offence’ or of ‘offence connected with a political offence’. Counsel for the respondent has offered no argument to the contrary and, in any event, in my judgment Magee has clearly brought himself within the terms of paragraph (b) of s 50(2) of the Extradition Act 1965.¹⁰⁵

FitzGerald J, on the other hand, with whom Teevan J agreed,¹⁰⁶ was of the view that Magee had failed to establish substantial reasons for believing that he would be detained or prosecuted for any political offence in the North. For him it was not the applicant’s fears or belief that mattered so much as the probability of a prosecution occurring. He also had regard to the purpose of the Extradition Act 1965 and the corresponding Act in the United Kingdom and added:

Unless and until statutes are abused by a requesting country, I consider that it should be assumed that it will be properly used. On extradition subsequent to a decision of the High Court or the Supreme Court in this country, I am not prepared to hold that the requesting country is likely to be guilty of a breach of faith by prosecuting or detaining the alleged offender for a political offence.

With this dissenting judgment, and the one in Bourke, we see fissures opening up within the Supreme Court on this highly sensitive issue. FitzGerald J, of course, was to become Chief Justice in 1973.

The Law Enforcement Commission Report

I have set out elsewhere the difficulties which the Irish Supreme Court’s approach to extradition created for the legal system of Northern Ireland in the 1970s and 1980s.¹⁰⁷ They were Page Id: 155References(p. 156) perhaps most starkly reflected in the schism which developed within the intra-jurisdictional Commission established as a result of the Sunningdale Agreement in 1973. The four members of that Commission from the Republic of Ireland (led by Walsh J and including Henchy J) supported the view that extradition was not the way to solve the problems in bringing to justice people living in one of the jurisdictions but suspected of having perpetrated serious crimes in the other.¹⁰⁸ Their view was that it was not possible to change Irish and UK law in that way because of prohibitions existing under Irish constitutional law and Ireland’s international obligations. The four members from the United Kingdom, including the current and a future Lord Chief Justice of Northern Ireland (both of whom eventually became Lords of Appeal in Ordinary),¹⁰⁹ staunchly supported the view that extradition was the best option.¹¹⁰ They did not accept that international law necessarily stood in the way of such a reform. The view of the UK Commissioners was that a list of offences could be included in both the Irish and the UK Acts ‘in respect of which it would no longer be possible for a fugitive in one jurisdiction to claim protection on political grounds against extradition to the other’.¹¹¹ They carefully analysed the judgment of the Supreme Court delivered by Maguire CJ in The State (Duggan) v Tapley,¹¹² concluding that he firmly established that under international law there was no absolute rule that States could not extradite persons accused of political offences; they added that ‘the international climate is arguably more favourable to extradition for political offences than in 1950’,¹¹³ the date of the decision in Tapley. Amazingly, Tapley does not appear to have been cited to or by the Supreme Court judges in either Bourke v Attorney General¹¹⁴ or Re Article 26 and the Criminal Law (Jurisdiction) Bill 1975.¹¹⁵

The UK Commissioners also relied on two earlier Supreme Court decisions, The State (Sumers Jennings) v Furlong¹¹⁶ and In re Ó Laighléis,¹¹⁷ to show that the Irish Constitution was also no barrier to the proposed changes to extradition law. While Article 29.3 of the Constitution states that ‘Ireland accepts the generally recognised principles of international law as its rules of conduct in its relations with other States’, this did not mean (even if it is assumed that there is a generally recognised principle against extradition of political offenders) that it prevailed over domestic Irish law. As Davitt P put it in In re Ó Laighléis:

Where there is an irreconcilable conflict between a domestic statute and the principles of international law or the provisions of an international convention, Courts administering the domestic law must give effect to the statute.¹¹⁸

Finally, in a rare example of resort to the authority of public opinion, the UK Commissioners noted that ‘only a very small minority in any part of Ireland has in fact voiced disapproval of the declared joint intention to bring to trial those who have committed crimes of violence, however motivated, in any part of Ireland’.¹¹⁹

The riposte of the Irish members of the Commission to the points raised by the UK Commissioners was focused on three matters. First, they stressed that the refusal to extradite persons accused of ‘political offences’ (even though countries may differ as to how to Page Id: 156References(p. 157) define that term) was a well recognised principle of international law. Second, they observed that the UK government had itself adhered to that view when faced with the UN’s Convention on Genocide of 1948: it delayed ratifying that treaty until 1969 because of its preference for retaining the option of trying alleged genocidists within the United Kingdom rather than being obliged to send them abroad. Third, although there may be a trend towards allowing the extradition of political offenders in the context of ‘international terrorism’, that was not the context within which the current debate was taking place. The Irish Commissioners cited some of the same academic experts as the UK Commissioners (Wheaton, Oppenheim and O’Connell, all well-known international law scholars) but they focused on different aspects of what was written by those experts. They also suggested that because extradition is not permitted under the common law of either Ireland or England, the statutes which derogate from that position must be strictly construed.¹²⁰ As regards the Tapley case, they suggested it was ‘to say the least, open to doubt for several reasons that this case would now be accepted as authoritative’¹²¹ because in the 23 years which had elapsed since it was decided all of the multilateral extradition treaties had excluded political offenders from being extradited.¹²² Similar doubts were cast on the UK Commissioners’ interpretation of The State (Sumers Jennings) v Furlong¹²³ and In re Ó Laighléis:¹²⁴ the relevant judicial statements were obiter dicta and should not be applied in different contexts. The Irish contingent also disputed the suggestion that Ireland and the UK were at liberty, notwithstanding the European Convention on Extradition of 1957, which Ireland had ratified but the UK had not, to make their own bilateral arrangements for the extradition of political offenders. That would amount, it was said, to a proposal from the Law Enforcement Commission that the Irish government should denounce the Convention.¹²⁵ It would also be anomalous and impractical since it would lead to people being extradited from Ireland to Northern Ireland for offences for which they could not be extradited to Great Britain.

Re Article 26 and the Criminal Law (Jurisdiction) Bill 1975

The dispute between the representatives of the two jurisdictions was eventually resolved in favour of the option of ‘extra-territorial jurisdiction’. The UK Parliament enacted the Criminal Jurisdiction Act 1975 and the Oireachtas approved the Criminal Law (Jurisdiction) Bill 1976. But a week after the latter Bill was agreed President Ó Dálaigh referred it to the Supreme Court, as was his right under Article 26 of the Constitution,¹²⁶ for an opinion on whether it was compatible with the Constitution. His decision was doubtless prompted by some of the dicta in the Boland case. The Supreme Court assigned solicitors and counsel to argue that the Bill was unconstitutional while the government’s own lawyers argued for its validity.¹²⁷

The provisions which came under close scrutiny were sections 2, 3 and 11. Section 2 stated that where a person had done an act in Northern Ireland which, if done in the Republic, would constitute an offence specified in the Schedule to the Act, he or she would be guilty of an offence in the Republic and if convicted would be liable to suffer the penalty he or she would have been liable to if the act had been done in the Republic.¹²⁸ This applied also to persons accused of aiding, abetting, counselling or procuring one of the scheduled offences, and to persons impeding the apprehension or prosecution of such accused Page Id: 157References(p. 158) persons, whether in Northern Ireland or the Republic.¹²⁹ Section 3 made it an offence in the Republic, punishable with up to seven years in prison, to have escaped from custody in Northern Ireland after having been charged with or convicted of one of the scheduled offences. Section 11 provided that for the purposes of the trial of an offence under section 2 or 3,¹³⁰ or of any appeal from such a trial, the trial court must, if requested to do so by the prosecution or the accused and unless satisfied that it was not in the interests of justice to do so,¹³¹ ask the Lord Chief Justice of Northern Ireland to arrange for evidence to be taken by a High Court judge, in the presence of the members of the Republic’s court, from a specified witness.¹³² The scheduled offences included murder, manslaughter, arson, kidnapping, false imprisonment, malicious damage, causing grievous bodily harm, causing explosions, robbery, aggravated burglary and possession of firearms.¹³³

In responding to the President’s reference, O’Higgins CJ delivered the single judgment of the Court.¹³⁴ His initial point was that the presumption of constitutionality should apply to Article 26 references in the same way as it applies in cases where the constitutionality of Acts is in question.¹³⁵ He then considered the argument that sections 2 and 3 of the Bill were repugnant to Articles 2 and 3 of the Constitution because the latter provisions purported to prohibit the Oireachtas from legislating in relation to matters occurring in Northern Ireland. The Court’s answer to this was twofold. First, Article 3 of the Constitution ties the extra-territorial effect of the jurisdiction of the Oireachtas to ‘the like area and extent of application as the laws of Saorstát Éireann’, and there was no doubt that Saorstát Éireann did have jurisdiction to pass laws with extra-territorial effect. This jurisdiction was acquired when the Dáil passed an Act approving the 1922 Constitution of the Irish Free State,¹³⁶ even if other dominions did not acquire that right until it was conferred by the Statute of Westminster 1931. Second, international law recognised that every sovereign State has ‘power to legislate with extra-territorial effect in the sense that it may enact that acts or omissions done outside its borders are criminal offences which may be successfully prosecuted within its borders … provided that the events, acts or persons to which its enactment applies bear upon the peace, order and good government of the legislating State’.¹³⁷ This is a rare example of the Supreme Court accepting the binding effect within Irish domestic law of a principle of international law, though whether the authorities cited would have been enough to persuade the Court to reach the conclusion it did in the absence of some relevant case law is a moot point.

As regards the compatibility of section 11 of the Bill with the Constitution, the Court again had two answers. First, it did not think the Bill was unconstitutional simply on the basis that it envisaged special courts dealing with the offences in question: the Court could not accept that the effective administration of justice or the preservation of public peace and Page Id: 158References(p. 159) order within the State, which are the prerequisites set out in the Constitution for the creation of special courts,¹³⁸ could not be affected by an offence the constituent acts of which are committed outside the State. Second, section 11 did not conflict with the Constitution because it did not permit the operation of unfair trial procedures, fail to provide for trial in due course of law, or in any other way fail to defend or vindicate the personal rights of the citizen as required by Article 40.3.1 of the Constitution. In reaching these conclusions it could be argued that the Supreme Court adopted a laxer approach to some procedures under the Bill than it would have done if the Bill had not been the result of an international agreement struck between the Irish and British governments. For a start, it saw nothing wrong with the accused person having to be in police custody while in Northern Ireland if a witness’s evidence was to be taken in that jurisdiction: the implication was that such custody was necessary to prevent the accused absconding. In addition, the Court saw no contradiction between the accused having to be in police custody while in Northern Ireland and his or her right under the Republic’s law not to be refused bail just because he or she might later commit another offence:¹³⁹

the requirements as to custody are obviously necessary, and no more than necessary, to secure that the accused while in Northern Ireland will receive proper protection and will be returned at the conclusion of the evidence to the jurisdiction of the State, there to be returned into such custody as had existed or to be released on bail, as the court may decide.¹⁴⁰

The Court did concede, however, that when an accused was present to hear a witness’s evidence in Northern Ireland he or she should be supplied in advance, as would be the case in the Republic, with a copy of what the witness intends to say.¹⁴¹

In holding the Bill to be compatible with the Constitution the Supreme Court was clearly endorsing the Irish government’s efforts to comply with the agreement it had entered into with the British. Had the Court found an incompatibility such compliance would at the very least have been delayed, but the impression would also have been given that the Republic was not serious about helping to bring to justice people accused of appalling crimes in Northern Ireland. Tellingly, O’Higgins CJ referred to this context at the very beginning of the Court’s judgment¹⁴² and it no doubt influenced the Court in its assessment of whether the Bill struck ‘a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society’.¹⁴³

A Change of Heart

The Criminal Law (Jurisdiction) Bill thus became an Act, but the practice of United Kingdom authorities asking for suspects to be extradited from Ireland to Great Britain continued, and in turn the suspects tried to use Irish law to resist such requests. The first of these cases to reach the Supreme Court was Hanlon v Fleming in 1981,¹⁴⁴ where Maurice Page Id: 159References(p. 160) Hanlon fought extradition to England by arguing that the offences for which he was charged there—dishonestly receiving nine electric detonators and four ounces of gelatine, knowing them to be stolen goods—were political offences. Henchy J (one of the Irish judges who had sat on the Law Enforcement Commission, where he had been opposed to extradition) held that they were not political offences, and O’Higgins CJ and Griffin J agreed with him. The reason for so concluding was the finding of fact by the High Court judge in the court below that there was no acceptable evidence that any of the proceeds of the accused’s alleged crimes were used for the purposes of the IRA ‘in such a way as to lend political colour to the offences’.¹⁴⁵ Intriguingly, Henchy J went on to say that even if there had been such evidence it did not necessarily follow that the accused would have been exempt from extradition because of the political offence defence: ‘There has been no decision of this Court on such a point. It must be left open for an appropriate case.’¹⁴⁶ In the subsequent case of Maguire v Keane¹⁴⁷ the Supreme Court seemed to agree that such evidence would not necessarily lead to a different result. In the High Court Egan J believed that a man who had allegedly committed a robbery in England had given his share of the stolen money to the IRA on whose behalf he said he had been acting at the time, but Walsh J, supported by his four brethren in the Supreme Court,¹⁴⁸ perhaps all of them suspecting that this was a clever ruse by an ‘ordinary’ criminal to escape justice, held that Maguire had not adduced sufficient evidence to show that he had in fact been acting on behalf of the IRA. He too was therefore extradited to England.

The McGlinchey litigation

Just over a year later, in 1982, the extradition issue arose before the same judges in another case, but this time the requesting jurisdiction was not England and Wales but Northern Ireland. The use of juryless Diplock courts in that jurisdiction made the matter all the more controversial, even though the juryless Special Criminal Court was also operating in Dublin. In McGlinchey v Wren¹⁴⁹ the wanted person, Dominic McGlinchey, was accused of shooting dead a grandmother in the course of an attack on her house in Northern Ireland committed by him and three other men in 1977. In the High Court McGlinchey argued that the alleged offence was ‘a political offence or an offence connected with a political offence’, under section 50(2)(a) of the Extradition Act 1965, and that he had engaged in it as a member of the Provisional IRA. Gannon J rejected that claim, but as his decision is not officially reported we do not know his reasoning. McGlinchey had submitted excerpts from the Ballymena Guardian, a copy of a ‘wanted’ poster referring to him by name and a charge sheet relating to another man who was accused of withholding information about McGlinchey’s involvement in terrorist activities, but all of this did not amount to sufficient evidence to persuade Gannon J that McGlinchey was a politically motivated offender. On appeal to the Supreme Court McGlinchey abandoned his claim under section 50(2)(a) and instead relied on section 50(2)(b), which prohibits extradition where ‘there are substantial reasons for believing that the person named or described in the warrant will, if removed Page Id: 160References(p. 161) from the State under this Part [of the 1965 Act], be prosecuted or detained for a political offence or an offence connected with a political offence’. O’Higgins CJ strongly hinted that even if McGlinchey had not conceded that the murder of Hester McMullan could not be regarded as a political offence he would have held that to be the case; he said that ‘modern terrorist violence, whether undertaken by military or para-military organisations, or by an individual or groups of individuals, is often the antithesis of what could reasonably be regarded as political, either in itself or in its connections’.¹⁵⁰

As regards the argument that McGlinchey might still be prosecuted or detained in Northern Ireland for a political offence the Chief Justice held that no evidence had been adduced to support that possibility. Significantly he added:

This Court is invited to assume that, because of the existence of widespread violence organised by para-military groups in Northern Ireland, any charge which is associated with terrorist activity should be regarded as a charge in respect of a political offence or an offence connected with a political offence. I am not prepared to make any such assumption.

The excusing per se of murder and of offences involving violence, and the infliction of human suffering by, or at the behest of, self-ordained arbiters, are the very antithesis of the ordinances of Christianity and civilisation and of the basic requirements of political activity.¹⁵¹

These very strong words seem a mile away from the arguments put forward by Walsh and Henchy JJ when they were sitting as two of the four Irish members of the Law Enforcement Commission eight years earlier. Yet in McGlinchey, Henchy J was one of the two judges who concurred with everything O’Higgins CJ said.¹⁵² Perhaps the fact that more than 1,400 people had been killed in Northern Ireland’s troubles between 1974 and 1982 had a sobering effect on the judges. It has been observed that to substantiate their change of heart the judges could have pointed to the Preamble to the Constitution, which promotes ideals hardly in line with those pursued by those in Ireland who use violence for political ends.¹⁵³

During the course of the proceedings in his claim for political exemption McGlinchey absconded while on bail. He was on the run for over a year before being re-arrested after a shoot-out with the Garda Síochána in County Clare in March 1984. There was then a further challenge to his extradition order, based on the alleged unconstitutionality of the Extradition Act 1965, and this led to an unreported ex tempore judgment of the Supreme Court on 17 March 1984 summarily dismissing the challenge.¹⁵⁴ After being extradited he was convicted of the murder of Hester McMullan but was acquitted on appeal, whereupon he was extradited back to Ireland at that country’s request to face charges arising out of the shoot-out in County Clare. He was convicted in the Special Criminal Court and sentenced to 10 years in prison, a challenge against that decision again failing in the Supreme Court¹⁵⁵ and also in the European Commission of Human Rights.¹⁵⁶ Undeterred, while he was in prison McGlinchey issued yet another challenge, this time arguing that the initial warrant for his arrest issued in Belfast in 1981 was invalid. Costello J actually agreed that McGlinchey was correct on this point, because amongst other reasons the police officer who swore the complaint leading to the issue of the warrant had not signed the complaint Page Id: 161References(p. 162) as required by law, but the judge then held that there were sufficient other safeguards in the extradition legislation to allow McGlinchey to have relied on the warrant’s invalidity at earlier stages in various court proceedings.¹⁵⁷ Costello J also rejected an argument that the Extradition Act 1965 was unconstitutional because it deprived McGlinchey of the right to protection of his constitutional right to liberty: McGlinchey could still claim that right to protection if he had evidence to support a breach of his right to liberty, but he did not. This decision was not appealed to the Supreme Court. McGlinchey was released from prison in March 1993 but within a year he had been murdered. To date no-one has been prosecuted in relation to his killing.

McMahon v Leahy, Shannon v Fanning and Quinn v Wren

In June 1984 the three judges who had sat in McGlinchey v Wren were joined by two additional judges, Hederman and McCarthy JJ, to hear an appeal to the Supreme Court by Philip McMahon.¹⁵⁸ He had fled to the Republic after having escaped from custody in Northern Ireland where he was serving an eight-year sentence for robbery and unlawful possession of a firearm. When challenging his extradition he admitted that he had carried out the offences as a member of the IRA. In the High Court, Keane J (a future Chief Justice), followed the approach taken by O’Higgins CJ in McGlinchey, namely, that before a person could evade extradition on the basis of the political offence exception he or she would have to adduce evidence that the offence arose, directly or indirectly, out of political activity: it could not be presumed from the existence of widespread violence organised by paramilitary groups in Northern Ireland.¹⁵⁹ Applying that test, Keane J said the evidence before him ‘falls far short of the clear and cogent evidence which would be required to elevate such a crime into the genus of political crime in respect of which the State must afford asylum to the fugitive criminal’.¹⁶⁰ Surprisingly, this decision was overturned on appeal. What persuaded all five Supreme Court judges to adopt such a generous attitude was the fact that seven years earlier, in two High Court applications, four men who had escaped from custody in Northern Ireland at the same time as McMahon had successfully pleaded the political offence exception before Butler J and Finlay P; the State, moreover, had not sought to appeal those decisions to the Supreme Court. The Supreme Court therefore felt it would breach the right of all citizens of Ireland to be held equal before the law¹⁶¹ if McMahon were not also allowed to evade extradition (as if the High Court can never be mistaken). McCarthy J agreed with this conclusion but added that he would in any event have refused extradition because there were flaws in the documentation produced by the police and the magistrate in Northern Ireland, flaws which he described as slipshod and careless.¹⁶²

A month later the same five Supreme Court Justices applied McGlinchey v Wren to allow the extradition of Séamus Shannon to Northern Ireland for his alleged involvement in the 1981 murders of Sir Norman Stronge and his son James, both former members of the House of Commons of Northern Ireland, at their home in Tynan Abbey, County Armagh.¹⁶³ Once more the case reduced itself to the criteria which should be used for deciding what constitutes a political offence. O’Higgins CJ (with whom again Henchy and Griffin JJ concurred without adding anything) held that it depended on ‘the particular facts and circumstances Page Id: 162References(p. 163) of each case, viewed in the light of the standards and values which obtain in this country at the particular time’.¹⁶⁴ After citing his own words from the McGlinchey case, O’Higgins CJ added that:

Apart from the fact that, as appeared from other cases coming before this Court, the Provisional IRA has abjured normal political activity in favour of violence and terrorism, the circumstances (as so disclosed) of the murders in question here were so brutal, cowardly and callous that it would be a distortion of language if they were to be accorded the status of political offences or offences connected with political offences.¹⁶⁵

Hederman J’s criterion for marking out political offences, on the other hand, was simply whether the person accused had acted with a political motive or for a political purpose. There must be evidence that this person did the act alleged and did so for political reasons. The nature of the offence itself, under this test, seems to be irrelevant. As the burden of proving such motive or purpose lies on the person accused, and as no such evidence had been forthcoming in this case, the offences charged could not be labelled as political or as connected with political offences. The judge could not agree with the test applied by O’Higgins CJ and Henchy and Griffin JJ: he thought it ‘could only create uncertainty’¹⁶⁶ and he cited the example of the murder of a despotic ruler: this would be repugnant to people who regard any violence as unreasonable and uncivilised, but it would still be regarded by many others as political activity. McCarthy J, the fifth judge in the case, agreed with Hederman J that assessing the true motivation of the person who committed the offence was key to determining whether it was a political offence but he thought that the nature of the offence, the identity of the victim and the ‘proximity’ of these factors to the alleged political aim were important too. In rejecting Shannon’s argument that if the aim of a criminal is truly political it does not matter how revolting the circumstances of the crime committed may be, McCarthy J alluded to the case where a young woman might be shot dead on a public street in order to deter her father, a Belfast magistrate, from carrying out his duties in that role. This was probably a thinly veiled reference to the murder of Mary Travers in Belfast on 8 April 1984, just three months before the Supreme Court’s hearing of the appeal in Shannon.¹⁶⁷

Quinn v Wren,¹⁶⁸ decided in 1985, is another Supreme Court decision which undermines the reasoning adopted by the Irish members of the Law Enforcement Commission in 1974. John Quinn admitted that he had dishonestly obtained £600 from a branch of Barclay’s Bank in London by deceitfully trying to cash forged travellers’ cheques, but he argued that he should not be extradited from Ireland to England to face trial for that offence because he had committed it as a member of the Irish National Liberation Army (INLA), an illegal organisation which was seeking to establish an all-Ireland Republic by force of arms. By now Finlay CJ had assumed the role of Chief Justice in place of Tom O’Higgins, but he and his four colleagues¹⁶⁹ could all see how perverse it would be to allow such a person to claim the protection of the political offence defence whenever he himself wanted to overthrow the State from whose legal system he was seeking protection. The word used by McCarthy J to describe such an argument was ‘ludicrous’.¹⁷⁰ None of the judges thought Page Id: 163References(p. 164) it was possible to set out a comprehensive definition of political offence; they preferred to adopt O’Higgins CJ’s approach in Shannon v Fanning, which was to assess each case on its own particular facts.

The Extradition (Convention on the Suppression of Terrorism) Act 1987

In 1977 the Council of Europe agreed a Convention on the Suppression of Terrorism, the main purpose of which, by way of supplementing its 1957 forerunner,¹⁷¹ was to make it easier for countries to extradite people who were suspected of committing acts of terrorism. It did this by indicating some offences which should not be regarded as political or as connected with political offences and these included ‘acts of particular gravity’, kidnapping and taking of hostages, and the use of bombs and rockets. The Convention also allowed states to exclude from the ‘political offence’ category any act of violence against the life, physical integrity or liberty of a person. The United Kingdom ratified the Convention just a few months after it was agreed and in the Suppression of Terrorism Act 1978 it included a list of offences not qualifying as political which was much longer than that required by the Convention.¹⁷² Ireland did not react positively to the Convention until 1987, when it passed the Extradition (Convention on the Suppression of Terrorism) Act 1987.¹⁷³ This came into force domestically on 1 December 1987 although Ireland did not actually ratify the Convention until 1989 after a list of designated countries was issued in secondary legislation.¹⁷⁴ However the range of offences excluded from the political offence category in Ireland’s legislation remained much narrower than in the United Kingdom’s. Both the British and the Irish Act amended existing national law so as to allow an extradition request to be refused when there were substantial grounds for believing that the warrant was issued for the purpose of prosecuting, punishing or prejudicing the position of the person concerned on account of his or her race, religion, nationality, or political opinion.¹⁷⁵

Russell v Fanning

It is perhaps the Supreme Court’s decision in the fifth extradition case post-dating the Law Enforcement Commission report that most starkly represents the volte-face which Irish judges began to make in this context, even though the decision itself resulted in extradition. In Russell v Fanning¹⁷⁶ Robert Russell was fighting his extradition to Northern Ireland where he would be returned to the Maze prison from which he had escaped in 1983 along with many others, after having served just one year of a 20-year sentence for attempting to murder a police officer. He admitted to being a member of the IRA and to having escaped in order to carry on that organisation’s violent campaign to end British rule in Northern Ireland. Finlay CJ and Henchy and Griffin JJ upheld the decision by O’Hanlon J in the High Court that the presumption of the constitutionality of the Extradition Act 1965 required the term ‘political offence’ in that Act to be interpreted in a way which prevented a person Page Id: 164References(p. 165) from relying on the concept when the purpose of the offence in question was to subvert the country’s Constitution or usurp the functions of the state. O’Hanlon J explicitly stated that what the IRA was seeking to do was ‘not merely to end British rule in Northern Ireland but to impose its will on the people of Ireland in a manner which subverts the Constitution’, citing Article 6.¹⁷⁷ This was a straightforward application of the Supreme Court’s ruling in Quinn v Wren, decided less than three years earlier.

Hederman and McCarthy JJ, who had also sat in Quinn v Wren, were not prepared to go that far, notwithstanding McCarthy J’s use of the epithet ‘ludicrous’ in that earlier case. Their position in Russell v Fanning was that acting as a member of the IRA should be distinguished from acting as a member of the INLA, even though both were subversive organisations which were illegal in both Ireland and the United Kingdom and were fundamentally opposed to the existence of separate states on the island of Ireland. Hederman J characterised the conflict in Northern Ireland as follows:

What is happening in Northern Ireland is that a small fraction of the population there has raised a political revolt against the administration with a view to overthrowing that administration. This type of revolt or insurrectional activity is the classic form of political offence.¹⁷⁸

The learned judge did not see any inconsistency between that description of what the IRA were seeking to do and his words in Quinn v Wren about the INLA, where he said: ‘The admitted objective of the organisation referred to in the present case is by force of arms or other violent means to over-throw the Government established by the Constitution.’ One would have to conclude that in this judge’s mind John Quinn’s deceitful acquisition of £600 in London somehow threatened the stability of the Irish state much more than Robert Russell’s attempted murder of a police officer in Northern Ireland. This conclusion is only confirmed by what the judge added: ‘I am not aware of any law in this State which prohibits anybody publicly urging the raising of an armed revolt in another State, aimed at the overthrow of the government of that State or urging Irish support for any such revolt, even though such policy is contrary to the stated policy of the organs of government of this State’.¹⁷⁹

McCarthy J endorsed Hederman J’s view that just because a person disagrees, even to the extent of using violence, with a policy of the government of the day, this does not prevent that person from seeking to rely upon the political offence exception. He described the majority’s position as amounting to ‘judicial repeal’ of parts of section 50(2) of the Extradition Act 1965.¹⁸⁰ He alluded to the Extradition (Amendment) Act 1987, which had inserted provisions into the Extradition Act 1965 allowing extradition to be refused if it would be unjust, oppressive or invidious and requiring the Attorney General to be satisfied, before endorsing a warrant for extradition, that there was a clear evidence-based intention on the part of the requesting jurisdiction to prosecute the person named in the warrant.¹⁸¹ Page Id: 165References(p. 166) McCarthy J implied that the Oireachtas cannot be assumed to have accepted that from 1987 any IRA person asking not to be extradited should fail in that plea. Perhaps unwisely, given that judges should not pre-judge issues that might come before them later, he stated that if the Oireachtas intended to leave it to the courts to reduce further the application of the political offence exception, ‘it will gain no support from me’ as it would amount to ‘judicial legislation’.¹⁸² He did not think that the objectives of the IRA amounted to subversion of Article 6 of the Constitution¹⁸³ and he did not consider the attempted murder of a police officer in Northern Ireland as having the nature of an act that removes it from the category of being political.¹⁸⁴ He went on to mention two other reasons for refusing extradition in Russell’s case: the risk that he might be ill-treated by prison officers if returned to Northern Ireland and the risk that he might be interrogated by police officers before being brought before a magistrate (he cited the experiences of McGlinchey and Shannon with regard to the latter risk).¹⁸⁵

In accordance with the majority’s decision Robert Russell was indeed extradited. This occurred a week after eight British soldiers were killed by an IRA bomb in Ballygawley, County Tyrone, and three days before three members of the IRA were shot dead by British soldiers elsewhere in the same county. In Belfast republicans reacted to Russell’s extradition by planting bombs and invoking riots. In April 1989 another Maze escapee, Paul Kane, was extradited from Dublin to Belfast on the order of the Irish High Court. Perhaps because of the outcome in Russell v Fanning he decided not to appeal to the Supreme Court, as explained in the Dáil by Gerry Collins, the Fianna Fáil Minister for Justice.¹⁸⁶

A Further U-turn: Finucane v McMahon and Its Aftermath

In 1990 the minority position adopted by Hederman and McCarthy JJ in Russell v Fanning became the new official orthodoxy of the Court in Finucane v McMahon.¹⁸⁷ It was the judgment of Walsh J which swung the matter, with Hederman and McCarthy JJ repeating the views they expressed in Russell and with Finlay CJ and Griffin J willing to go along with their colleagues’ application of the agreed principle to what had occurred in this particular case. The fact that it was the first occasion on which the Chief Justice sat with all four of the ordinary judges in the Supreme Court in an extradition case is, suggests Humphreys, one reason why the Court was willing not to follow the decision in Russell.¹⁸⁸ The applicant, Dermot Finucane, another escapee from the Maze in 1983, had lost in the High Court¹⁸⁹ because the judges there applied what they thought was the ratio in Russell; they also held that Finucane had not sufficiently proved the risk that he would be ill-treated by prison staff in Northern Ireland if he were returned there. It was this latter point that Finlay CJ dealt with first in the Supreme Court.

Basing himself on facts found by the High Court, and in particular on uncontested evidence showing that many prisoners in the North had been paid ex gratia sums by the Northern Ireland Office for injuries they had sustained through mistreatment by prison officers and yet there had been ‘a total absence of any repercussions on the staff’ as a result of such ill-treatment, the Chief Justice found that it was ‘a probable risk’ that Finucane Page Id: 166References(p. 167) would be ill-treated if he were to be returned to the North.¹⁹⁰ This own-goal by the prison officers may well have made it easier for Finlay CJ to then hold that Finucane should also escape extradition on the basis that what he was accused of having done was a political offence even though it was done in the name of the IRA. The Chief Justice clearly came to that conclusion reluctantly, but he felt reassured that the constitutional principle he had stated in Quinn v Wren was to be retained,¹⁹¹ even if its application in Russell v Fanning was now being questioned. Griffin J’s judgment is in similar terms to that of Finlay CJ as regards the risk of Finucane being ill-treated if returned to Northern Ireland, but he differed from three of his colleagues in thinking that Russell v Fanning was correctly decided and in holding that Finucane's conviction for possessing firearms and ammunition with intent to endanger life or property was not properly classifiable as a political offence. Given that the ultimate decision as to whether an action is a political offence is one of mixed law and fact, it seems reasonable that individual judges can disagree on that point provided they state plausible reasons for their conclusion.

Walsh J’s judgment in Finucane v McMahon is one of the most lucid in this whole field of extradition, but it is clearly underpinned by his continuing adherence to the view he advocated while serving on the Law Enforcement Commission in 1974, namely that as regards fugitive offenders from Northern Ireland an extra-territorial jurisdiction solution was much to be preferred to an extradition solution. He does not mention his membership of that Commission but he cites Colm Campbell’s work as showing that the former approach had been much more effective than the latter in securing convictions.¹⁹² He also explains how Ireland had taken account of the Council of Europe’s 1977 Convention on the Suppression of Terrorism without thereby equating all politically motivated violence with terrorism. In sum, his view was, however unpalatable to many outside Ireland, that the Oireachtas ‘intentionally refrained from characterising as matters directed to the overthrow of this State or as activities designed to usurp the functions of our government, the political violence in Northern Ireland which had as its objective the re-integration of the national territory’.¹⁹³ He stressed, perhaps disingenuusly, that Irish courts cannot treat extradition as a question of foreign policy: ‘[t]hey must remain completely impartial and detached and free from all political or diplomatic pressure in their objective determination of the issues involved’.¹⁹⁴ He concluded that the offence for which Finucane was convicted in Northern Ireland—having guns and ammunition with intent to endanger life, for which he was sentenced to 18 years’ imprisonment—was one which qualified for the political exemption and he agreed with Finlay CJ that extradition should also be barred because of the risk of ill-treatment in Northern Ireland’s prisons. Walsh J also pointed out that the sort of actions in which Finucane was alleged to have been participating could have been but had not yet been made justiciable in Ireland even though they were conducted outside the territory of Ireland.¹⁹⁵ Hederman J agreed with Finlay CJ on the ill-treatment point and with Walsh J on the political offence point; McCarthy J did likewise, but he also affirmed the views he expressed, and the reasons he gave for them, when dissenting in Russell v Fanning.

There was, of course, vocal opposition to the decision in Finucane v McMahon, in Ireland, in Northern Ireland and in Great Britain. Humphreys points out, in agreement with Walsh J, that the task of a court, especially a Supreme Court, is to apply the law in a politically Page Id: 167References(p. 168) impartial manner and he sees the decision as ‘a reassuring sign of [the Supreme Court’s] vigour and independence’.¹⁹⁶ After all, if the Oireachtas wanted to change the law it was within its power to do so. But some would think it strange that a Supreme Court believes it is being politically neutral when it characterises the kind of violence supported by Dermot Finucane as qualifying for the political offence exemption. It is also difficult to reconcile the ruling with that in Russell v Fanning. It may just be that Finucane’s legal team were more assiduous than Russell’s in unearthing evidence of the nature of the offences their clients had committed and in examining the likelihood of ill-treatment occurring in a Northern prison. Yet Finucane’s offences had still merited a sentence in Northern Ireland of 18 years, just two years shorter than Russell’s, and by 1990 greater safeguards were in place to combat physical abuse of those in custody in Northern Ireland than had existed in 1988.¹⁹⁷

Nevertheless the Supreme Court confirmed its position just four weeks later in Carron v McMahon,¹⁹⁸ where Blayney J sat in place of Walsh J. Owen Carron, later to be elected a Sinn Féin MP in Northern Ireland as successor to the hunger-striker Bobby Sands, was sought by the police in Northern Ireland for possession of an assault rifle and ammunition with intent to endanger life. He had given a lift in his car to another man who was convicted of the possession offences. Carron had skipped bail in Northern Ireland and fled to the Republic. As in the Finucane case the High Court ordered his extradition but the Supreme Court overturned that decision. This time, strangely, they did not refuse extradition on the basis that the applicant risked ill-treatment at the hands of police or prison officers in Northern Ireland. The High Court’s conclusion as to the weight of the evidence on that point was not doubted. It is also worth noting that pending the consideration of his ultimately successful challenge to the extradition process, Carron had been kept in custody in the Republic for more than two years.

In Ellis v O’Dea¹⁹⁹ the Supreme Court affirmed the decision of Hamilton P that Dessie Ellis, a prisoner in Ireland who was serving a sentence for crimes committed in Ireland after having been extradited from the USA, could then be extradited to England to face trial for his alleged involvement in explosions there. For some reason Ellis did not argue that his alleged offences could be described as political offences or connected with political offences and he failed to convince the Court that if he was extradited to England he would risk being dealt with in breach of the reasonable standards of fair trial required by the Irish Constitution. The bench was the same as in Finucane v McMahon²⁰⁰ but the outcome was different. Other than that the jurisdiction requesting extradition was England and Wales rather than Northern Ireland, it is difficult to see what justifies deciding the two cases differently. Today Dessie Ellis is a Sinn Féin TD (ie MP) for a constituency in Dublin. Prior to becoming a TD he was a Dublin City Councillor for 12 years.

In Magee v Culligan²⁰¹ the Supreme Court was again confronted with three appeals by men who were facing extradition having escaped from prison in Northern Ireland in 1981 (this time from Belfast’s Crumlin Road prison). A bench which comprised both Finlay CJ and Hamilton P, together with Hederman, McCarthy and Egan JJ, unanimously upheld the appeals by Anthony Sloan and Michael McKee, principally because they had been convicted only of possession of a machine gun and ammunition, not of their use, and so they Page Id: 168References(p. 169) qualified for the political offence defence under section 50(2)(a) of the Extradition Act 1985 as interpreted by the Supreme Court in Finucane v McMahon.²⁰² In the same case the Supreme Court rejected the appeal by Paul Magee, who had been convicted of the murder of British army captain Richard Westmacott in 1980, for which he could not claim the political offence defence. However Magee fled before the judgment was issued in November 1991. In 1993 he was convicted of murdering a part-time police officer in England and was given an 18-year sentence there. Shortly after the Good Friday Agreement in 1998 he was returned to Ireland to serve the remainder of his sentence but was released the following year in compliance with the terms of the Agreement. In 2000 the authorities in Northern Ireland sought his extradition on the back of the Supreme Court’s judgment in 1991, but the British and Irish governments agreed that there was little point in pursuing that line and Magee was issued with an official royal pardon.

An interesting side-note to this litany of case law concerning extradition in cases relating to Northern Ireland’s troubles is that in 1986 it came to light that the 1957 Convention on which Part II of the Extradition Act 1965 was based had never been properly ratified by Ireland. The realisation was made in The State (Gilliland) v Governor of Mountjoy Prison,²⁰³ where an American citizen successfully challenged the attempt to extradite him to the USA because the relevant treaty between Ireland and the USA, the terms of which imposed a charge on public funds because it required Ireland to pay for some of the USA’s expenses arising out of a person’s extradition to that country,²⁰⁴ had not been approved by the Dáil as required by Article 29.5.2 of the Irish Constitution.²⁰⁵ As in some other extradition cases, Hederman and McCarthy JJ dissented, this time because they thought that the government’s 1984 Order which extended the 1965 Act to cases involving extradition to the USA²⁰⁶ was not itself a ‘law’ the constitutional validity of which could be referred by the High Court to the Supreme Court under Article 40.4.3 of the Constitution, but once that point was settled by the majority a single judgment of the whole Court was issued confirming the unconstitutionality of the Order on the separate ground that the treaty had not been approved by the Dáil.²⁰⁷ The consequences of this decision for the validity of the 1965 Act itself were not adverted to by the Supreme Court either in Gilliland itself or any later case,²⁰⁸ but on 12 July 1988 the Irish government informed the Council of Europe that a decision of the Supreme Court had made it impossible for Ireland to comply with its international obligations under the 1957 European Convention on Extradition because Dáil approval of its terms had not been obtained prior to its ratification by Ireland in 1966. The government rectified the matter by obtaining such approval on 29 June 1988 and deposited a new instrument of ratification with the Council of Europe.²⁰⁹ For 22 years, therefore, Ireland had been extraditing people in breach of its own Constitution but no-one had noticed. No-one who was so extradited seems to have later sought a remedy for this breach of the rule of law.

Page Id: 169References(p. 170) Extradition Today

Extradition between the United Kingdom and Ireland is today governed by the procedures put in place as a result of the EU’s adoption of the Framework Decision on the European Arrest Warrant (EAW) in 2002.²¹⁰ These replaced the extradition arrangements in the 1965 Acts and also those between Ireland or the United Kingdom on the one hand and any other EU Member State on the other. In Ireland the Framework Decision was given effect through the European Arrest Warrant Act 2003 and in the United Kingdom through the Extradition Act 2003. Under the new procedures an EAW is issued, usually electronically, through an ‘alert’ being placed on a database known as the Schengen Information System. If the person named is found in one of the EU member states a certificate can be issued there justifying his or her arrest. Once an arrest has been made there must be a court hearing within 48 hours to check the identity of the individual and then a formal hearing within three weeks of the arrest to decide if the person should be extradited to the requesting state. The Framework Decision which created the EAW did not specify a ‘political offence exemption’ as such, but its preliminary Preamble states that:

Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.²¹¹

The wording of this part of the Preamble is faithfully reflected in Ireland’s domestic legislation,²¹² which also prohibits extradition if it would be incompatible with the European Convention on Human Rights (ECHR) or in contravention of the Irish Constitution.²¹³ But to the latter two ‘defences’ there is the major exception, provided for by Article 2(2) of the Framework Decision, that extradition cannot be denied if the offence of which the person is accused is (for example) participation in a criminal organisation, terrorism, murder, grievous bodily injury, kidnapping, illegal restraint, hostage-taking, racketeering or extortion. The only prerequisite which must be satisfied in such cases is that the offence must be one which is punishable by at least three years of detention in the requesting state. It is not even necessary for the ‘double criminality’ of the behaviour in question to be verified, that is, no check needs to be made that the behaviour is also an offence in the requested state. In the United Kingdom’s domestic legislation the wording of the Framework Decision has not been quite so faithfully reproduced. While it adheres to the rules that extradition cannot be denied if the offence in question falls within Article 2(2),²¹⁴ or if it is incompatible with the ECHR,²¹⁵ it limits the defence based on the accused’s personal characteristics, or on the risk of prejudice on such a basis at his or trial, to the characteristics of gender, Page Id: 170References(p. 171) race, religion, nationality, political opinion and sexual orientation. It omits ‘ethnic origin’ and ‘language’.²¹⁶ And of course the United Kingdom’s Act has no exception based on protections guaranteed by the national Constitution. In neither country, it should be noted, is there any defence that the person whose extradition is being sought is a national of that country. Both Ireland and the United Kingdom have always been prepared to extradite their own nationals, unlike many civil law countries around the world, prominent examples being Brazil, China, France, Germany, Japan, Russia and Switzerland.

To date there have been no Supreme Court cases in which the operation of the EAW system in relation to offences allegedly connected with the troubles in Northern Ireland has been examined. There have been challenges to the return of suspects to Northern Ireland on the basis that they might be ill-treated while in custody there, but these have been rejected by the lower Irish courts.²¹⁷ The concern at present is what arrangements will be put in place when the UK leaves the EU, for such an exit may mean that the UK can no longer be part of the EAW system and there is no default extradition agreement between the UK and Ireland to fall back on. Either an arrangement will need to be made to allow a non-EU State to participate in the EAW system or a new bilateral extradition treaty will have to be negotiated between the two countries.²¹⁸

Conclusion

It is clear from the Supreme Court decisions surveyed in this chapter that on many occasions the judges have found it uncomfortable to have to deal with issues pertaining to Northern Ireland. In effect, they have had to juggle their commitment to the Irish Constitution with their commitment to non-violence and justice. Normally there should be no difficulty in that regard, because there should rarely be a clash between the two sets of values. But it is only to be expected that some judges are more willing than others to promote the view, indirectly, that reunification of the island of Ireland is a goal which deserves high priority. Thankfully the amendments made to the Irish Constitution as a result of the Belfast (Good Friday) Agreement seem to have greatly reduced the likelihood that Supreme Court judges will again be required to adjudicate on the constitutionality of the relationship between the Republic of Ireland and Northern Ireland.

During the long saga of the extradition cases Hederman, McCarthy and Walsh JJ clearly stuck their necks out by arguing for an approach to republican violence that was more understanding of the phenomenon than was the approach preferred by their judicial colleagues, especially O’Higgins CJ and Henchy J. But it is difficult if not impossible to demonstrate that there was any direct political prejudice applied during any of the decision-making in these cases, certainly no more than could be identified in decisions by the judiciaries of Northern Ireland or of England and Wales during the same period. Numerous instances of miscarriages of justice occurred in the latter jurisdiction in troubles-related cases;²¹⁹ decades later miscarriages are still being unearthed and acknowledged in Northern Ireland.²²⁰ The flip-flopping of the Page Id: 171References(p. 172) Supreme Court in the extradition cases was certainly frustrating for those in the North who experienced the violence of the troubles in a much more direct fashion than the judiciary in the Republic ever did, but it has to be accepted that occasionally the rule of law requires uncomfortable decisions to be made which can easily give the wrong impression that the decision-makers’ motivation was politically-based rather than justice-oriented.

Footnotes:

¹ See, generally, Forde and Leonard (2013) paras 3.35–3.36. Technically the six counties were part of the Irish Free State for one day because the Free State’s Constitution of 1922 was ratified by an Act of the UK Parliament on 5 December 1922 and on 6 December 1922 the King issued the proclamation required by Art 83 of that Constitution. Only on 7 December 1922 did the Northern Ireland’s Parliament present an address to the King under Art 12 of the Anglo-Irish Treaty of 1921 stating that the powers of the Parliament and government of the Free State would no longer extend to Northern Ireland and the provisions of the Government of Ireland Act 1920 would continue to be of full force and effect so far as they related to Northern Ireland.

² For the full story see O’Brien (2000).

³ Committee of Public Accounts of Dáil Éireann (Privilege and Procedure) Act 1970, s 4(3).

⁴ Who had also presided over the arms trial defendants a year before.

⁵ In re Haughey [1971] IR 217.

⁶ Ibid, 231 (Ó Dálaigh CJ, Walsh, Budd, FitzGerald and McLoughlin JJ); see too Tóibin (1985) 14-16.

⁷ Though Walsh and Budd JJ simply agreed with Ó Dálaigh CJ on these matters too.

⁸ The exception was McLoughlin J.

⁹ See eg Ferriter (2012) Chap 12 (141–52); Patterson (2006) 172–6.

¹⁰ Street and Gordon (2012).

¹¹ Northern Ireland (Temporary Provisions) Act 1972. This ‘temporary’ Act was not repealed until a new Executive was put in place in Northern Ireland on 2 December 1999. It was supplemented by a further Northern Ireland Act in 1974.

¹² See http://cain.ulst.ac.uk/hmso/cmd5259.htm. The White Paper had been preceded in October 1972 by a discussion paper entitled The Future of Northern Ireland: A Paper for Discussion.

¹³ This too was not repealed until 2 December 1999: see n 11 above.

¹⁴ Sch 1 provided that such a poll could not occur before 9 March 1983 or within 10 years of an earlier poll. This date was chosen because there had been a poll on 8 March 1973 under the Northern Ireland (Border Poll) Act 1972. It was largely boycotted by nationalists but of those who voted 591,820 favoured Northern Ireland remaining part of the UK and only 6,463 favoured Northern Ireland joining the Republic of Ireland.

¹⁵ For the communiqué issued after the Agreement was reached see http://cain.ulst.ac.uk/events/sunningdale/agreement.htm.

¹⁶ For details see paras 10–18 of the communiqué, n 15 above.

¹⁷ [1974] 1 IR 338 (Murnaghan J).

¹⁸ Ibid. McBride did not appear in the Supreme Court.

¹⁹ Ibid, 353.

²⁰ Buckley v Attorney General [1950] IR 67, 80. See too Chap 6 above, 121-2.

²¹ [1974] 1 IR 338, 353. As von Prondzynski (1978–80) observes, at 18 n 22, this is comparable to the accepted principle that post-1937 legislation is presumed to be constitutional. For more on 'political questions' see Chap 4 above, 68-9.

²² [1974] 1 IR 338, 353-4.

²³ Ibid, 363.

²⁴ These were paras 5, 6 and 20. Boland argued they were repugnant to Arts 1–6 and 34 of the Constitution.

²⁵ [1974] 1 IR 338, 362–3. Henchy and Walsh JJ did not sit in the appeal because they were members of the Law Enforcement Commission, established under the Agreement being challenged in the case: Casey (1979) 33–4. See too 155-7 below.

²⁶ As President of the High Court Andreas O’Keeffe (Aindrias Ó Caoimh) was the second most senior judge in Ireland and an ex officio member of the Supreme Court, although he rarely sat there.

²⁷ [1974] 1 IR 338, 367.

²⁸ Ibid, 366.

²⁹ [1987] 1 IR 713; see Chap 11 below, 252-5.

³⁰ Ibid, 786. See, generally, Forde and Leonard (2013), para 10.10.

³¹ [1990] 1 IR 110.

³² Northern Ireland: A Framework for Devolution, Cmnd 8541, available at http://cain.ulst.ac.uk/hmso/cmd8541.htm.

³³ Northern Ireland Act 1982, s 1(4).

³⁴ Northern Ireland Assembly (Dissolution) Order 1986, SI 1036.

³⁵ It came into force on 29 November 1985, when the two governments exchanged notifications of their acceptance of it (see Art 13). It was registered at the UN on 20 December 1985 as Treaty No 23668.

³⁶ For legal annotations on the Agreement see Hadden and Boyle (1989) and for its political consequences see Aughey and Gormley-Heenan (2013).

³⁷ Ex parte Molyneaux [1986] 1 WLR 331.

³⁸ In the words of Charles Haughey, the Fianna Fáil leader: ‘We are deeply concerned that by signing this Agreement the Irish Government are acting in a manner repugnant to the Constitution of Ireland by fully accepting British sovereignty over a part of the national territory and by purporting to give legitimacy to a British administration in Ireland.’ Dáil Debs, 19 November 1985, vol 361(11), para 2581.

³⁹ See, in particular, Art 29.4.1, cited above at 145. The plaintiffs were represented by two future judges of the Supreme Court, Hugh O’Flaherty SC and Frank Clarke SC. Gerard Hogan assisted them in the Supreme Court.

⁴⁰ [1988] IR 567, 578–81.

⁴¹ Ibid, 582. For an extra-judicial statement of the judge’s views see Barrington (1988).

⁴² [1977] IR 129, 145. See 157-9 below.

⁴³ [1988] IR 505, 537. See 164-6 below.

⁴⁴ [1974] IR 338, 363; see 144-6 above. This may also have been the view of John Kelly, who suggested that the language of Articles 2 and 3 was ‘too polemical’, adding that ‘matters which, to any outsider, would seem highly intricate and doubtful, are presented as legalistic claims of right’: Kelly (1966a) 14.

⁴⁵ [1988] IR 567, 586–7.

⁴⁶ Ibid, 590.

⁴⁷ [1987] IR 713; see Chap 11 below, 252-5.

⁴⁸ [1988] IR 567, 590–2.

⁴⁹ [1990] 1 IR 110. For an interesting alternative feminist judgment in this case see O’Donoghue (2017) and the commentary by Houghton (2017).

⁵⁰ Walsh, Griffin and Hederman JJ.

⁵¹ [1990] 1 IR 110, 123 (emphasis added).

⁵² Ibid, 114–5. He might also have cited Art 17 of the ECHR, which prohibits people from claiming rights in order to destroy or unduly limit other people’s rights. In civil law countries this is called the abuse of rights principle.

⁵³ Ibid, 119.

⁵⁴ [1988] IR 505, 537. This case is discussed below at 164-6 below.

⁵⁵ [1990] 1 IR 110, 119.

⁵⁶ Ibid.

⁵⁷ [1988] 1 IR 567, 587–8.

⁵⁸ [1990] 1 IR 110, 121. Art 29.2 actually speaks of the pacific settlement of international disputes ‘by international arbitration or judicial determination’.

⁵⁹ Under ‘Constitutional Issues, Annex B’.

⁶⁰ Later claims lodged by Mr Riordan were categorised as wholly unreasonable and he was eventually issued with an ‘Isaac Wunder’ order requiring him to seek the leave of the court before bringing any further proceedings (Wunder v Hospitals Trust (1940) Ltd, unreported decision of the Supreme Court, 24 January 1967); Moore (2001). In at least one further case where he sought such leave, it was refused: Riordan v Ireland (No 5) [2001] 4 IR 463 (O’Caoimh J). See too Riordan v An Tánaiste [1997] 3 IR 502 and Riordan v Ireland [2000] 4 IR 537, both Supreme Court decisions.

⁶¹ Riordan v An Taoiseach (No 1) [1999] 4 IR 321 (Hamilton CJ, O’Flaherty, Barrington, Lynch and Barron JJ). In the same case he unsuccessfully challenged the Family Law (Divorce) Act 1996 on the ground that it contravened the Constitution’s pledge to guard the institution of marriage and protect the family.

⁶² Nineteenth Amendment to the Constitution Bill 1998, s 7(3). Art 46, on amending the Constitution, does not expressly confer a delaying power on the government in relation to an amending Act that has been approved by the people in a referendum, signed by the President and ‘duly promulgated by the President as law’ (Art 46.5).

⁶³ Riordan v An Taoiseach (No 2) [1999] 4 IR 343 (Kelly J).

⁶⁴ Ibid, 350 (Hamilton CJ, O’Flaherty, Barrington, Lynch and Barron JJ).

⁶⁵ Ibid, 354.

⁶⁶ Riordan v An Taoiseach (No 1) [1999] 4 IR 321.

⁶⁷ Ibid, 335.

⁶⁸ [1983] IR 154 (O’Higgins CJ, Walsh, Henchy, Griffin and Hederman JJ).

⁶⁹ See too Chap 10 below, 235 and 239.

⁷⁰ [1983] IR 154, 161–2.

⁷¹ Riordan v An Taoiseach (No 2) [1999] 4 IR 343, 361–3.

⁷² s 4, inserting a new s 6A into the Irish Nationality and Citizenship Act 1956.

⁷³ Humphreys (2008) 117–20.

⁷⁴ [2004] IESC 7 and 73, [2004] 1 IR 298 (Keane CJ, Denham, Murray, McGuinness and McCracken JJ).

⁷⁵ Joseph (2007) 574–5.

⁷⁶ See, generally, Hogan et al (2018) 1930-32; there was longer coverage in the fourth edition of Kelly: The Irish Constitution (2003) 1644–75.

⁷⁷ s 29.

⁷⁸ [1929] IR 558.

⁷⁹ This was in the fourth edition of Kelly: The Irish Constitution (2003) 1646. For the position up to the late 1950s see O’Higgins (1958).

⁸⁰ [1937] IR 699.

⁸¹ Ibid, 716.

⁸² [1952] IR 62 (Maguire CJ, Murnaghan, O’Byrne, Black and Lavery JJ).

⁸³ [1965] IR 70.

⁸⁴ Ibid, 118.

⁸⁵ Ibid, 119.

⁸⁶ Ibid, 121.

⁸⁷ For the establishment of the ‘new’ Supreme Court see Chap 4 above, 47.

⁸⁸ The other three judges were Lavery, Kingsmill Moore, and Haugh JJ.

⁸⁹ [1965] IR 70, 124.

⁹⁰ Mac Cormaic (2016) 82–4, 138–9, 192–3.

⁹¹ 347 US 483 (1954).

⁹² [1965] IR 70, 136–41.

⁹³ See, generally, Hogan et al (2018) 11932-58; Gilbert (1992); Delany and Hogan (1993).

⁹⁴ Extradition Act 1965, ss 44(2) and 50(2), both within Part III of the Act. The equivalent provision in Part II was s 11(1).

⁹⁵ Maguire (2008) Chap 5 (esp 130–42).

⁹⁶ A point made by Walsh J in a later Supreme Court case on extradition, Finucane v McMahon [1990] 1 IR 165, 215 (see 166-8 below).

⁹⁷ Backing of Warrants (Republic of Ireland) Act 1965, s 2(2).

⁹⁸ [1972] IR 36. See Mac Cormaic (2016) 217-220.

⁹⁹ The escape occurred on 22 October 1966.

¹⁰⁰ [1972] IR 36, 47.

¹⁰¹ Ibid, 50.

¹⁰² Ibid, 67.

¹⁰³ [1971] IR 205. See Mac Cormaic (2016) 220-1.

¹⁰⁴ FitzGerald and Teevan JJ dissented.

¹⁰⁵ [1971] IR 205, 211.

¹⁰⁶ Teevan J was a judge of the High Court who had been asked to sit in the Supreme Court for this case.

¹⁰⁷ Dickson (2010) 217–21. See too Connelly (1982).

¹⁰⁸ Report of the Law Enforcement Commission (1974), Cmnd 5627 and Prl 3832, paras 41–74.

¹⁰⁹ These were, respectively, Sir Robert Lowry and Brian Hutton QC; Scarman LJ was also a member.

¹¹⁰ Note 108 above, paras 75–110.

¹¹¹ Ibid, para 13.

¹¹² [1952] IR 62. The other judges were Murnaghan, O’Byrne, Black and Lavery JJ. The Supreme Court affirmed the decision of Gavan Duffy P in the High Court.

¹¹³ Note 108 above, para 89. At paras 101–04 the UK members of the Commission found further support for this view in the Resolution on International Terrorism agreed by the Committee of Ministers of the Council of Europe on 24 January 1974.

¹¹⁴ Note 98 above.

¹¹⁵ See 147 above and 157-9 below.

¹¹⁶ [1966] IR 183.

¹¹⁷ [1960] IR 93. See too Chap 12 below, 270-2.

¹¹⁸ Ibid, 103.

¹¹⁹ Note 108 above, para 105(b).

¹²⁰ Ibid, para 55.

¹²¹ Ibid, para 56.

¹²² Ibid, para 61.

¹²³ [1966] IR 183.

¹²⁴ [1960] IR 93.

¹²⁵ For a contrary view see Symmons (1973) and (1978).

¹²⁶ For more comprehensive treatment of this provision see Chap 6 above, 106–19.

¹²⁷ The appointed counsel included Donal Barrington SC and Hugh O’Flaherty.

¹²⁸ s 2(1).

¹²⁹ ss 2(2)–(6),

¹³⁰ Strangely, s 11(1) limits this to trials before the Special Criminal Court (established under Art 38.3.1 of the Constitution), the implied assumption being that all such trials would take place there.

¹³¹ It also allowed the Republic’s court to make a request of its own motion.

¹³² s 12 provided for evidence to be taken in the Republic in relation to a trial in Northern Ireland.

¹³³ To accommodate the Act some amendments were made by ss 4–9 to Ireland’s Explosive Substances Act 1883, Larceny Act 1916 and Firearms Act 1964, bringing the law into line with laws applying in Northern Ireland.

¹³⁴ Re Article 26 and the Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129. The other judges were Finlay, Griffin, Kenny and Parke JJ; Redmond (1978).

¹³⁵ He cited, eg, Re Article 26 of the Constitution and the Offences against the State (Amendment) Bill 1940 [1940] IR 470, 478 (per Sullivan CJ).

¹³⁶ Constitution of the Irish Free State (Saorstát Éireann) Act 1922. O’Higgins CJ cited in support the view expressed by FitzGibbon J in R (Alexander) v Circuit Judge for Cork [1925] 2 IR 165.

¹³⁷ [1977] IR 129, 149. O’Higgins CJ cited the decision of the Permanent Court of International Justice in The Lotus Case (1927) PCIJ Ser A, No 10 and O’Connell on International Law (2nd ed, Vol 2, 602).

¹³⁸ Art 38.3.1.

¹³⁹ A right affirmed by the Supreme Court in The State (Attorney General) v O’Callaghan [1966] IR 501; see too Chap 10 below, 207-8.

¹⁴⁰ [1977] IR 129, 154.

¹⁴¹ Ibid, 155–6. But the Court specifically did not decide whether there is a constitutional right to have prior notice of evidence to be given in a criminal trial.

¹⁴² Ibid, 142–3.

¹⁴³ Ibid, 152. This was with reference to the phase ‘due course of law’ in Art 38.1 of the Constitution.

¹⁴⁴ [1981] IR 489; see too Chap 12 below, 273. In the later cases of McMahon v Leahy and Shannon v Fanning (see nn 158 and 163 below) reference is made to the unreported High Court decision of Finlay J, as he then was, in Burns v Attorney General (4 February 1974): he refused to extradite to England a man who was accused of the unlawful possession of explosives for use by the IRA. There were several other unreported High Court decisions between 1874 and 1976; they are listed in McCarthy J’s judgment in Finucane v McMahon [1990] 1 IR 165, 223 and in Hogan and Walker (1989) 303.

¹⁴⁵ Ibid, 495. The fact that the High Court judge is unnamed may not be unconnected to the fact that it came to light that he or she had delayed for five-and-a-half years between the hearing of the case in April 1975 and the delivery of a judgment in October 1980!

¹⁴⁶ Ibid.

¹⁴⁷ [1986] IR 154.

¹⁴⁸ Finlay CJ, Henchy, Griffin and McCarthy JJ.

¹⁴⁹ [1982] IR 154 (O’Higgins CJ, Henchy, and Griffin JJ).

¹⁵⁰ Ibid, 159.

¹⁵¹ Ibid, 160.

¹⁵² The other was Griffin J. Humphreys thinks that if there had been five judges in this case ‘there would have been far greater continuity in judicial decision-making in this most sensitive of areas’: Humphreys (1990) 127, 130.

¹⁵³ Hogan et al (2018) 1938.

¹⁵⁴ Irish Times, 19 March 1984 (O’Higgins CJ, Henchy and Griffin JJ); Humphreys (1990) 129–30. The story of this hearing and the context within which it took place is grippingly told by Tóibin (1985).

¹⁵⁵ McGlinchey v Governor of Portlaoise Prison [1988] IR 671.

¹⁵⁶ McGlinchey v Ireland App No 16751/90 (5 March 1991). See too App 5 below, 334.

¹⁵⁷ McGlinchey v Ireland (No 2) [1990] 2 IR 220.

¹⁵⁸ McMahon v Leahy [1984] IR 525.

¹⁵⁹ Keane J also cited the words of Finlay J in Burns v Attorney General (High Court, 4 February 1974), on which see n 144 above.

¹⁶⁰ [1984] IR 525, 533.

¹⁶¹ Art 40.1 of the Constitution.

¹⁶² [1984] IR 525, 546–7.

¹⁶³ Shannon v Fanning [1984] IR 569. The Stronges’ home was also burnt down.

¹⁶⁴ Ibid, 580. It should be noted that the headnote to this case (at 570) slightly distorts what O’Higgins CJ said by suggesting that his test for deciding whether an offence was political was whether ‘reasonable, civilised people would regard [it] as political activity’. That language occurs in the McGlinchey case, not Shannon.

¹⁶⁵ Ibid, 581.

¹⁶⁶ Ibid, 588.

¹⁶⁷ See Deborah McAleese, ‘Judge Travers agony over daughter Mary’s murder revealed in book’, Belfast Telegraph, 2 November 2015.

¹⁶⁸ [1985] IR 322.

¹⁶⁹ Henchy, Griffin, Hederman and McCarthy JJ.

¹⁷⁰ [1985] IR 322, 340.

¹⁷¹ See 153-4 above.

¹⁷² Suppression of Terrorism Act 1978, Sch 1.

¹⁷³ The Act was slightly altered later in the year by the Extradition (Amendment) Act 1987. It was also in 1987 that the Extradition Act 1965 was extended to extradition arrangements with the USA: Extradition Act 1965 (Part II) (No 22) Order 1987 (SI 33). See too Gageby (1991) and, for an account of the political tension at the time, Peter Murtagh, ‘Haughey’s foot-dragging on extradition angered British government’, Irish Times, 30 December 2017, 6.

¹⁷⁴ Extradition (European Convention on the Suppression of Terrorism) Act 1987 (Designation of Convention Countries) Order 1989 (SI 115).

¹⁷⁵ Suppression of Terrorism Act 1978, s 2(1); Extradition (Convention on the Suppression of Terrorism) Act 1987 (Ir), ss 8 and 9.

¹⁷⁶ [1988] IR 505 (decided by the same five judges as in Quinn v Wren).

¹⁷⁷ Ibid, 516. Art 6.1 reads: ‘All powers of government, legislative, executive and judicial derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.’

¹⁷⁸ Ibid, 539.

¹⁷⁹ Ibid, 539–40. Hederman J was influenced by the Supreme Court’s decision in McMahon v Leahy, n 158 above.

¹⁸⁰ Ibid, 546–7.

¹⁸¹ It was supposedly on the basis of this provision that in December 1988 the Attorney General John Murray (later a Chief Justice of Ireland) decided that a warrant for Fr Patrick Ryan’s extradition to England would not be executed. He was wanted in England on suspicion of involvement in IRA activities in the Netherlands, where earlier in 1988 three off-duty British servicemen had been murdered. The Attorney General said the chances of Ryan receiving a fair trial in England had been ‘irredeemably prejudiced’ by reports in the British press and by statements in Parliament, including by Prime Minister Margaret Thatcher.

¹⁸² [1988] IR 505, 548.

¹⁸³ Ibid, 552.

¹⁸⁴ Ibid, 554.

¹⁸⁵ Ibid, 554–8.

¹⁸⁶ See https://web.archive.org/web/20071127133659/http://historical-debates.oireachtas.ie/D/0388/D.0388.198904130075.html.

¹⁸⁷ [1990] 1 IR 165.

¹⁸⁸ Humphreys (1990) 128–9.

¹⁸⁹ [1990] 1 LR 165. The judges were Hamilton P, Gannon and Costello JJ.

¹⁹⁰ Ibid, 206. Finlay CJ referred to Pettigrew v Northern Ireland Office [1989] 3 BNIL 83, where Hutton J, as he then was, found there had been a widespread conspiracy amongst prison officers to falsely and absolutely deny all accusations of assault and to refuse requests for medical assistance made by prisoners.

¹⁹¹ This was that the political offence exception could not be applied to any person charged with an offence ‘the admitted purpose of which is to further or facilitate the over-throw, by violence, of the Constitution and of the organs of State established thereby’: Quinn v Wren [1985] IR 322, 337.

¹⁹² [1990] 1 IR 165, 212; Campbell (1989).

¹⁹³ Ibid, 215.

¹⁹⁴ Ibid, 216.

¹⁹⁵ Ibid, 215. Humphreys (1990) agrees with this point (at 136).

¹⁹⁶ Humphreys (1990), 137.

¹⁹⁷ The Criminal Injuries (Compensation) (NI) Order 1988 improved the law on recovery of compensation from April 1988 and the Police and Criminal Evidence (NI) Order 1989 gave greater rights to persons in police custody from 1 January 1990.

¹⁹⁸ [1990] 1 IR 239; Thompson (1991) 33–40.

¹⁹⁹ [1991] 1 IR 251.

²⁰⁰ [1990] 1 IR 165.

²⁰¹ [1992] 1 IR 223.

²⁰² Note 187 above.

²⁰³ [1987] IR 201.

²⁰⁴ Art 17 of the Treaty, scheduled to the Order mentioned in n 206 below.

²⁰⁵ This provision reads: ‘The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann’.

²⁰⁶ Extradition Act 1965 (Part II) (No 20) Order 1984, SI No 300/1984.

²⁰⁷ [1987] IR 201, 235–8.

²⁰⁸ It is not mentioned in Hogan et al (2018), where the constitutionality of the 1965 Act is dealt with at 1934-5.

²⁰⁹ See www.coe.int/en/web/conventions/full-list/-/conventions/treaty/024/declarations?p_auth=EEeUcjX8.

²¹⁰ Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedure between Member States (2002/584/JHA).

²¹¹ Preamble to the EU Framework Decision, para 12. The paragraph adds that ‘This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.’

²¹² European Arrest Warrant Act 2003, s 37(1)(c)(i) and (ii). See too Hogan et al (2018) 1959-67.

²¹³ Ibid, s 37(1)(a) and (b).

²¹⁴ Extradition Act 2003, s 11(4); it follows that from the omission from the list of ‘bars to extradition’ in s 11 of any mention of a bar based on the nature of the alleged crime that the UK judge must order the person’s extradition if none of the other defences exists on the facts.

²¹⁵ Ibid, s 21(2).

²¹⁶ Ibid, s 13.

²¹⁷ On 12 December 2017, after having been arrested in the Republic pursuant to an EAW issued in Northern Ireland, Damien McLaughlin was extradited to Northern Ireland to be tried in relation to the murder of prison officer David Black in 2012.

²¹⁸ See ECAS (2017).

²¹⁹ eg the Guildford Four (convicted 1975, convictions overturned 1989); the Birmingham Six (convicted 1975, convictions overturned 1991); the Maguire Seven (convicted 1976, convictions overturned 1991).

²²⁰ See eg R v Fitzpatrick and Shiels [2009] NICA 60 and the successful appeal by Terry Laverty in 2015 against his imprisonment for rioting in 1971: www.bbc.co.uk/news/uk-northern-ireland-31373774. See too Requa (2015).

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