R v Governor of Belmarsh Prison and Another, ex parte Gilligan R v Governor of Exeter Prison and Another, ex parte Ellis
| Jurisdiction | England & Wales |
| Judge | LORD BROWNE-WILKINSON,LORD STEYN,LORD COOKE OF THORNDON,LORD HOPE OF CRAIGHEAD,LORD CLYDE |
| Judgment Date | 18 November 1999 |
| Judgment citation (vLex) | [1999] UKHL J1118-1 |
| Date | 18 November 1999 |
| Court | House of Lords |
[1999] UKHL J1118-1
HOUSE OF LORDS
Lord Browne-Wilkinson
Lord Steyn
Lord Cooke of Thorndon
Lord Hope of Craighead
Lord Clyde
(Application For Writ Of Habeas Corpus)
(Application For A Writ Of Habeas Corpus)
(On Appeal From A Divisional Court Of The Queen'S Bench Division)
(Conjoined Appeals)
My Lords,
I have read the speeches of my noble and learned friends Lord Steyn, Lord Cooke of Thorndon and Lord Clyde. I agree with their reasons for dismissing both appeals.
My Lords,
On 4 and 5 October 1999 the House heard two conjoined appeals. At the end of the hearing the House dismissed both appeals. This judgment records my reasons for agreeing to that way of disposing of the appeals.
In both appeals orders by magistrates for the return of individuals to the Republic of Ireland under section 1 of the Backing of Warrants (Republic of Ireland) Act 1965 were called into question on the grounds that the offences identified in the Irish warrants do not, as required by section 2(2), "correspond" with offences under English law, which are indictable offences or are punishable on summary conviction with imprisonment for six months. In a judgment given on 12 January 1998 the Divisional Court held in the case of Mr. Gilligan that the requirement of correspondence was satisfied: [1998] 2 All E.R. 1. At the same time the Divisional Court rejected a submission on behalf of Mr. Gilligan that the magistrate had erred in law in holding that he had no jurisdiction to entertain an abuse of process application. Applying the reasoning in Gilligan the Divisional Court on 27 January 1998 held in the case of Mr. Ellis that the requirement of correspondence was also satisfied in his case. The brief judgment is unreported.
It will be convenient to start by considering the issue of correspondence in the light of the case of Mr. Gilligan. Thereafter, I will consider the same issue in regard to the case of Mr. Ellis. Finally, it will be necessary to consider the separate issue of jurisdiction to hear an abuse of process application which arose in the case of Mr. Gilligan.
GILLIGAN
A forensic narrative
On 6 October 1996 at Heathrow Airport a Customs Officer arrested Mr. Gilligan. He was carrying a suitcase containing 330,000 in Irish punts and sterling bank notes. Between October 1996 and February 1997, Mr. Gilligan was charged with various offences contrary to sections 49 and 50(1) of the Drug Trafficking Act 1994. On 19 February 1997 a magistrate committed Mr. Gilligan for trial on three counts, namely, concealing or disguising property representing the proceeds of drug trafficking contrary to section 49(1)(a) of the Drug Trafficking Act 1994; attempting to remove from the jurisdiction property representing the proceeds of his drug trafficking contrary to section 1(1) of the Criminal Attempts Act 1981; and assisting another person to retain the benefit of that other person's proceeds of drug trafficking contrary to section 50(1)(a) of the Drug Trafficking Act 1994. Mr. Gilligan challenged the decision to commit him. On 16 May 1997 the Divisional Court quashed the committal on the first two charges: see Reg. v. Belmarsh Magistrates' Court, Ex parte Gilligan [1998] 1 Cr. App. R. 14. On 3 July 1997 Mr. Justice Kay granted leave to prefer a voluntary bill of indictment against Mr. Gilligan. On 11th July 1997 the voluntary bill was preferred.
On 29 August 1997, the Special Criminal Court in Dublin issued 18 arrest warrants against Mr. Gilligan, charging him with:
a) the murder of Veronica Guerin;
b) 5 counts of unlawfully importing cannabis resin into Ireland;
c) 6 counts of possessing cannabis resin for the purpose of selling or supplying;
d) 2 counts of possession or control of firearms with intent to endanger life;
e) 2 counts of possession or control of ammunition with intent to endanger life;
f) 1 count of unlawful possession or control of firearms;
g) 1 count of unlawful possession or control of ammunition.
The Republic of Ireland applied for the warrants to be endorsed in the United Kingdom under the Backing of Warrants (Republic of Ireland) Act 1965. On 3 September 1997 a Stipendiary Magistrate endorsed the warrants.
Mr. Gilligan's trial in England had been fixed for September 1997. On 8 September 1997 in the Crown Court at Woolwich the prosecution stated that it would subordinate the English criminal proceedings to the request for the return of Mr. Gilligan made by the Republic of Ireland. The domestic trial was adjourned and Mr. Gilligan was remanded in custody. On the same day Mr. Gilligan appeared before a Metropolitan Stipendiary Magistrate, under proceedings pursuant to section 2 of the Backing of Warrants (Republic of Ireland) Act 1965. Counsel for Mr. Gilligan asked for and obtained an adjournment. Counsel told the court that there would be a preliminary issue to determine whether the court had jurisdiction to consider allegations of abuse of process as Mr. Gilligan contended that he had been improperly arrested for domestic proceedings in the United Kingdom in an effort to hold him in custody while the extradition request from Ireland could be perfected. Mr. Gilligan contended that the application under the Act of 1965 had been made in bad faith. On 24 September 1997 Mr. Gilligan appeared before another Metropolitan Stipendiary magistrate. The magistrate heard legal argument and held that a submission of abuse of process could not be entertained in proceedings under the Act of 1965. On 22 October 1997 Mr. Gilligan appeared before a third Metropolitan Stipendiary Magistrate. The Irish Government produced evidence of Irish law from a practising member of the Irish Bar, in the belief that it was necessary to do so in order to satisfy the requirements of the Act of 1965. No evidence of the conduct constituting the Irish offences was adduced. On 28 October 1997 the magistrate rejected submissions that the offences specified in the Irish warrants were not shown to correspond with relevant English offences. He ordered Mr. Gilligan to be delivered up to Ireland. On 12 January 1998 the Divisional Court dismissed the Gilligan application for habeas corpus in respect of sixteen offences identified in the Irish warrants but allowed the application in respect of two warrants.
At the outset the core principles of the Act of 1965, and the differences between the system contained in it and extradition under the Extradition Act 1989 must be explained. There is no extradition treaty between the United Kingdom and the Republic of Ireland. The process for rendition between the two countries of persons accused and convicted is modelled on the backing of warrants system long familiar to English law. Historically, magistrates in England only had local jurisdiction and a warrant was valid only in the jurisdiction of the issuing magistrate. A fresh warrant had to be obtained if an accused went to another county. In due course the practice developed that where an accused left the jurisdiction where a warrant was issued a justice who had jurisdiction in the area where the accused was residing would endorse the warrant so that it could be executed in that jurisdiction. Blackstone observed that "the practice of backing warrants had long prevailed without law": Commentaries on the Law of England, 7th ed., 1772, 290-292. Backing was a purely administrative process and the magistrate was not required to conduct any judicial enquiry. From the middle of the eighteenth century the process was put on a statutory footing. The successive statutes were progressively broadened in scope and laid down the duties of magistrates: see the review of the history in counsel's argument in Reg. v. Metropolitan Police Commissioner, Ex patre Hammond [1965] A.C. 810, at 814-817. The system of backing of warrants was adopted in respect of the rendition of persons between the United Kingdom and the Republic of Ireland. It was in due course put on a statutory footing. Until 1965 it was regulated by the Indictable Offences Act 1848 and in the Petty Sessions (Ireland) Act 1851 both of which came into force at a time when the Republic of Ireland was part of the United Kingdom. Under the Act of 1851 the endorsement of a warrant by a magistrate was administrative only: the English magistrate merely had to be satisfied as to the authenticity of the signature of the issuing Irish magistrate. In 1922 the Irish Free State (Eire) was founded. In 1949 it became a Republic. In Reg. v. Metropolitan Police Commissioner, Ex parte Hammond a warrant endorsed by the Deputy Commissioner of the Garda Siochána (police) for execution in England was held to be unlawful because the Act of 1851, which was still in force, required the warrant to be endorsed by the "Inspector General," an office that had disappeared in 1922. At about the same time the Irish Supreme Court found that the system was unconstitutional: The State (Quinn) v. Ryan [1965] I.R. 70. These decisions led to the enactment of the Act of 1965. The purpose of the Act of 1965 was to create appropriate machinery for the backing of warrants and to introduce specific safeguards in the interests of justice.
Section 1 of the Act of 1965 provides for the production and endorsement in the United Kingdom of warrants issued in the Republic of Ireland. Section 1(1) reads as follows:
"Where
(a) a warrant has been issued by a judicial authority in the Republic of Ireland (in this Act referred to as the Republic) for the arrest of a person accused or convicted of an offence against the laws of the Republic, being an indictable offence or an offence punishable on summary conviction with imprisonment for six months; and
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