Dunne v High Court Dublin
| Jurisdiction | England & Wales |
| Judge | Leveson LJ,Rafferty J |
| Judgment Date | 09 July 2009 |
| Neutral Citation | [2009] EWHC 2003 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/673/2009 |
| Date | 09 July 2009 |
[2009] EWHC 2003 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Leveson
Mrs Justice Rafferty
CO/673/2009
Mr Ben Brandon (instructed by Hallinans) appeared on behalf of the Appellant
Miss Rachel Kapila (instructed by Crown Prosecution Service) appeared on behalf of the Respondent
: In this statutory appeal the Appellant Dunne challenges the decision of 14 January 2009 of District Judge Wickham at the Westminster Magistrates' Court to accede to the High Court of the Republic of Ireland's application for extradition following his conviction on 19 October 2007 at Kilkenny Circuit Centre for one offence of having sexual intercourse with a mentally impaired person. The European Arrest Warrant was issued on 30 July 2008, certified on 12 August 2008, the appellant arrested on 19 September 2008.
He was extradited for this offence in November 2003. He spent sometime on remand in Ireland and then was released on bail. Some part of his time on bail, until 16 October 2007, was spent in England. The Irish Court twice began to try this matter in March 2006 and in May 2007. In October 2007, at a re-trial, Dunne absconded on the third day and came to England. He was convicted in his absence and his return was sought for sentence.
He submitted at the lower court that it would be incompatible with his Human Rights to extradite him, and relied upon Article 2 (his Right to Life) and upon Article 3 (Prohibition of Torture and Inhuman Treatment). The District Judge assumed an anticipated sentence of imprisonment and/or custody pending appeal. The test was therefore whether there were an almost certainty of his being killed whilst in custody and/or whether he were foreseeably at real risk of being seriously ill treated so as to engage Article 3.
He relied before her upon five points:
(1) his intolerance to onions, red in particular, a severe allergic reaction potentially life threatening yet ignored by prison staff;
(2) racially unpleasant remarks and abuse on remand in Ireland referring to the mixed race mothers of his two children;
(3) a convert to Judaism, his need for a strict kosher diet which is not respected and he has been directed by prison staff to eat pork;
(4) he has been subject to anti-Semitic remarks and endured religiously offensive jokes;
(5) he has become the target of Republican revenge attacks following an involvement in 1983 in the Republic of Ireland with O'Brien who wanted him to provide timing devices for bombing campaigns. Thereafter there have been incidents in 1995, 1997, 2004 and lastly in 2005.
He denied the extradition offence, stating he has no recollection of the girl involved. He acknowledged he was arrested, identified and interviewed. He claims involvement in various gun fights reported to the police in the 1980s and in 1997, and severe assault in October 2005 whilst on bail in Ireland for this allegation. He fears retaliation in prison and that his family in the United Kingdom would suffer.
All these submissions were before the District Judge who found no or no sufficient detailed and accurate authentication of his assertions.
He produced three documents; two letters from his solicitors in Ireland when he was remanded in custody following his extradition in 2003 and thereafter when he challenged its validity; the third, a Directions Order from an English County Court in respect of contact with his son. He relied upon these as supporting his Article 2 and Article 3 submissions. The District Judge was satisfied that he misinterpreted the contents of all three and many of the incidents he described. She found that he was not a reliable witness and very little of what he said was corroborated.
Article 2 and Article 3 attract a high threshold test. The District Judge rejected the Article 2 submission, the defendant's evidence being far from compelling let alone establishing an almost certainty of death. Breaches of Article 3 encompass deliberate, inhuman treatment causing severe and cruel suffering and she found that any mistreatment, even on the appellant's own account, fell short of severity.
She considered that the fairest way of dealing with his submissions to acknowledge that extradition necessarily separated him from his children in this country and from current partners, unlikely to visit him in prison in Ireland. To that extent she found some interference with his private and family life but that it was proportionate to the legitimate aim of the Request.
She rejected all submissions, found that the extradition to Ireland would not be incompatible with the Appellant's Human Rights, and ordered it.
After her decision the Appellant's solicitor and counsel withdrew. The Appellant was thus...
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