Man loses appeal against extradition for conspiracy charges

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Jason Buckley’s surrender is sought for the purpose of prosecution for a single offence of conspiracy to cause explosions.

Mr Buckley is accused of being complicit in the design or manufacture of pipe bombs, used in a dispute between two persons involved in criminal activity in the Stoke-on-Trent area.

He had appealed the order on the grounds that the UK’s evidential rules in relation to prosecuting conspiracy amounted to a breach of his right to a fair trial under Article 38 of the Constitution.

It was argued that the evidential rules allowed the admission of evidence which would be inadmissible within Ireland.

The appeal raised issued of general public importance, relating to whether the fair trial rights contained within the Constitution have application beyond the national territory.

The relevant UK law is contained within sections 74 and 75 of the United Kingdom Police & Criminal Evidence Act, 1984.

Counsel for Mr Buckley explained that under these sections, the prosecution could adduce evidence of a convicted ‘conspirator’s’ conviction in the same matter, which would comprise the presumption of innocence and would not be in accord with the Irish precepts of a trial in due course of law.

Furthermore, such rules would be a denial of Mr Buckley’s right to hear evidence presented at trial, and to cross-examine all the evidence against him.

The Counsel relied upon Borges v. The Fitness to Practice Committee of the Medical Council and the Medical Council 1 I.R. 10, in which Keane C.J. observed that basic fairness of procedure requires that he or she should be allowed to cross-examine by counsel his accuser or accusers.

Delivering the judgment, Mr Justice John MacMenamin noted that in contrast to the facts in Borges, the current appeal was in relation to what “might, possibly, occur”.

Further, the UK provisions, which could “hardly be characterised as a fundamental defect in the justice system which amounts to a deprivation of a guaranteed right” did not hold that the evidence of another’s conviction could be used as conclusive proof of the guilt of the accused.

Rather, such evidence was only used to show that the other person had committed the offence, unless the contrary was proven.

Justice MacMenamin held that Mr Buckley had no “evidence that he would be left without remedy, or asserted that no procedural checks and balances exist in the United Kingdom in order to ensure that fairness is preserved in a trial there”.

It was noted that section 4A of the European Arrest Warrant Act, 2003contained a presumption that states issuing an Arrest Warrant application would comply with the Framework Decision, and that no evidence had been brought to rebut this presumption.

The Court cited Minister for Justice, Equality & Law Reform v. Brennan 3 I.R. 732 which observed that if the constitutional guarantees of one domestic criminal process were to be applied to foreign criminal processes, then nearly all extradition requests would have to be refused.

In that case, Murray CJ concluded that “I am not aware of any authority for the principle that the extradition or surrender of a person to a foreign country would contravene the Constitution simply because their legal system and system of trial differed from ours as envisaged by the Constitution”,

The Court also cited Nottinghamshire County Council v. B(K) & Another IESC 48, which found that the Constitution and the rights derived therefrom were generally seen as operating only within Irish territory, and that “… the Constitution expects the legal systems of friendly nations will differ from that of Ireland”.

Citing Brennan 3 I.R. 732, the Court concluded that “differences in the rules of evidence are insufficient to raise a question of refusal to surrender”.

The Court did note the exception to the rule, in the case that there may be a clearly established and fundamental defect in a justice system, which would require a refusal to surrender in order to protect an individual’s rights.

However, in the current case, what was presented was only a “different rules of evidence case”. Thus, the surrender was considered lawful.

The Court further noted the case of Ellis v. O’Dea 1 I.R. 530, which found that a Court had “undoubted jurisdiction to protect the constitutional rights of a person appearing before it by declining to order the extradition of that person to a jurisdiction where he could be exposed to practices or procedures amounting to an infringement of his right to fair and just procedures”.

That case concerned the UK’s use at the time of special rules of evidence in relation to conspiracy charges, which could potentially lead to an innocent person being convicted on the basis of “admissions” made by a co-accused.

However, the Court distinguished the two cases, noting that in the present case there was no claim that “reliance will, or is likely to, be placed on ss. 74 and 75 of the Act of 1984 in a trial; there would appear to be substantial other evidence”.

Further, the Court would not be justified in inferring or presuming an absence of safeguards within the UK system.

Turning to the terms of section 36(1)(a) the European Arrest Warrant Act, 2003, the Court found that it would be entitled to refuse surrender were “it satisfied there were substantial grounds for believing there was a real risk that the respondent would be subjected to a flagrant denial of justice at his trial”.

However, this was not the case in the present circumstances, and the appeal was therefore dismissed.