asked the Taoiseach if, in view of the fact that the Attorney General has, for stated reasons, issued a full statement on his consideration of an extradition request, he will explain why issues other than that of the sufficiency of evidence were not left to the courts to decide; and if he will make a statement on the matter.
Private Notice Questions. - Patrick Ryan Extradition Case.
asked the Taoiseach if, in view of the public controversy surrounding the request for the extradition to Britain of Fr. Patrick Ryan, he will request the Attorney General to make a public statement outlining the grounds on which the decision to refuse extradition was based; if any discussions have taken place with the British authorities regarding the possible use of the Criminal Law (Jurisdiction) Act in this case; if any discussions are planned; and if he will make a statement on the matter.
These matters have been the subject of a statement issued by the Attorney General this morning. Because of the unique importance of the case, I now propose to read this statement so that it appears in the record of the House.
The Attorney General yesterday afternoon advised the Commissioner of the Garda Síochána that warrants received by the Garda Síochána from the Metropolitan Police in London for the arrest of Patrick Ryan should not be endorsed for execution in the State. The Attorney General subsequently informed the Taoiseach of the advice given by him to the Commissioner.
It is a long-standing practice that the Attorney General does not issue statements about the performance of his duties, and there are sound reasons in the public interest that this should normally be so. The Attorney General would prefer not to have to depart from that practice. However, the situation which has arisen — or, more accurately, has been created — in the present case is quite unique, and the Attorney General has reluctantly come to the conclusion that it would be less undesirable to depart from practice than to allow speculation to replace fact about a matter of very considerable public importance. He is, therefore, issuing this statement summarising the circumstances relevant to his decision so that there should be no doubt in the minds of anyone, in this country or elsewhere, as to the facts of this case.
At 10.50 on the night of Friday, 25 November 1988 Patrick Ryan arrived in this jurisdiction aboard a Belgian military aircraft having been released from custoday in Belgium after an extradition request from the British authorities had been refused by the Belgian authorities. In the early hours of Saturday, 26 November four warrants, issued in London in respect of Patrick Ryan, were received by the Garda Commissioner from the Metropolitan Police. In the four hours between Patrick Ryan's arrival and the receipt of these warrants the District Court was not asked to issue a provisional arrest warrant (and it is during that period, and no other, that the law would have allowed a provisional warrant to be issued) for legal considerations, which are not relevant to this decision. Replacement documentation, correcting certain defects, was received from the British authorities on Sunday, 27 November.
Consideration of this case involved questions of law and questions of fact. The questions of law included matters of English law, Belgian law, and complex legal issues concerning the law of conspiracy, the extra-territoriality of offences in English law and in Irish law, corresponding offences, and other matters. The questions of fact included the confidential material which had been supplied to the Attorney General by the British Attorney General on Friday evening, 25 November.
The necessary consideration and examination of these issues by the Attorney General, with his legal advisers, commenced without delay and continued as expeditiously as was consistent with the care required in such matters. On Thursday evening, 1 December, further information and clarification was sought from the British Attorney General concerning the material which he had furnished. This was supplied late the following evening, Friday, 2 December.
Between the Monday and the Thursday, certain material published in Britain, in newspapers and on radio and television, came to the attention of the Attorney General. He also became aware of the nature of references to the case made in the British Parliament. These matters are more specifically referred to later in this statement.
The Extradition (Amendment) Act, 1987, requires the Attorney General to direct that a warrant for the extradition of a person from the State shall not be endorsed unless, having considered such information as he deems appropriate, he is of opinion that there is a clear intention to prosecute that person, founded on the existence of sufficient evidence.
Even before the passing of the 1987 Act it was part of Irish law that any application for extradition should be founded on an intention to prosecute based on a sufficiency of then-existing evidence, and that otherwise extradition proceedings would be an abuse of the process of the court. Before the passing of the Act, therefore, it would have been improper for the Attorney General to initiate or permit the initiation of proceedings for extradition if he became aware that the then intention of the requesting country was not to prosecute but was, for example, to obtain the person for questioning. The existence of such a state of affairs would not normally have been apparent to the Attorney General, and the 1987 Act now requires that he obtain sufficient information to satisfy himself regarding these matters and, if not so satisfied, to direct that the warrant shall not be endorsed by the Garda Commissioner.
Independent of the provisions of the Extradition (Amendment) Act, 1987, the Attorney General must ensure that a proposed extradition application to the courts complies with all other requirements of the law and Constitution of the State. These include, for example, such matters as that the offences charged are offences known to the law, and correspond with offences under Irish law, and that the supporting legal documentation is correct and in order. He must also be satisfied that the proceedings do not otherwise infringe the requirements of law or the Constitution or involve an abuse of the legal process. The Attorney General is designated by the Constitution as the chief law officer of the State and is the guardian of the public interest. It is he who bears ultimate responsibility for the initiation and conduct of extradition proceedings.
In the present case the extradition documents concerned four offences, specified in four separate warrants. In respect of the charges in two of the warrants the Attorney General, having considered such information as he deemed appropriate, has formed the opinion that there is, on the part of the relevant prosecution authority, a clear intention to prosecute and that such intention is founded on the existence of sufficient evidence. In the light of what follows he has not found it necessary to reach any final conclusion in regard to the charges in the other two warrants.
Before referring to the matters which have been published in Britain concerning the case, it is necessary to record that this is not the first occasion when material has been published in Britain concerning a pending extradition case, although in no previous instance have the prejudicial statements attained the pitch and extent of those in the present case.
Earlier this year the Attorney General had cause for serious concern arising from reports on British television of the events surrounding the execution of certain extradition warrants and the charges to which they related. British television news reports showed the scenes of the aftermath of a number of explosions which had occurred in Britain previously and linked them to the charges on the warrants. It was clear that these reports were based, at least in part, on information that had come from official sources. The Attorney General was extremely concerned at these developments, which he considered to be highly improper and potentially damaging to the integrity of the extradition process. He, therefore, telephoned the British Attorney General, Sir Patrick Mayhew, on the same day and raised these specific matters.
The Attorney General does not propose to go into the details of what was said. However, he thinks it proper, and necessary, to say that he drew the British Attorney General's attention to the objectionable nature of any prejudicial material being published in connection with a pending application for extradition and prior to trial and to the fact that this was a matter which he is obliged to take into account when exercising his responsibilities arising from a request for extradition.
The Attorney General viewed the publication of the material in that case with such concern that he requested the Garda Commissioner and others to conduct inquiries as to the source from which the information had come. As a result of the inquiries he concluded that the information had come from official sources in London. It should be said that there is no question of the Crown Prosecution Service being the source. While the Attorney General was satisfied that the television reports in question, although prejudicial, were not such as materially to affect the due process of law, he was deeply disturbed that that process could be put at risk by the publication of such material and, therefore, he brought his concerns to the attention of the British Attorney General on the day in question.
In the present case also, matter has been published in Britain which the Attorney General has been obliged to consider. Before reaching a conclusion with regard to these matters, the Attorney General directed that a full report be prepared for his consideration on the widespread publicity given to this case in Britain. Such a report was prepared and was submitted to the Attorney General. With the assistance of this report and other information available to him the Attorney General has had the opportunity of examining the depth and breadth of the material published in Britain to an extent probably not possible for most people.
The material in question consists of references to Patrick Ryan which have appeared in newspapers, particularly newspapers with a large circulation, and on radio and television, over a protracted period. They consisted, inter alia, of attacks on Patrick Ryan's general character, often expressed in intemperate language and frequently in the form of extravagantly-worded headlines, and also assertions of his guilt of the offences comprised in the warrants—and, indeed, assertions of his guilt of other offences in respect of which no charges have been brought.
Many of these statements were expressed in a form which would lead the public to believe that they came, directly or indirectly, from sources who were in possession of facts which conclusively established their truth. It is also clearly apparent that a wide range of reports contained or were based on information which could only have originated from some official source.
An equally serious matter is the making of certain statements in the House of Commons. The tone, tenor and contents of much of that was said carried an assumption or inference of guilt on the part of the person named in the warrants issued by the court in London. Many members scrupulously avoided saying anything prejudicial. The prejudicial statements were perhaps, epitomised by the making of a direct attribution of guilt by one backbench member on the very first day on which the matter was mentioned and subsequently by the hostile reception received by another member from a significant number of backbenchers because he qualified the word "terrorist" with the word "alleged".
The House of Commons proceedings were widely and fully reported in the media. They raised the case to a unique status and can only have intensified the impact and lasting effect on members of the public of what was being published in the written and broadcasting media. Further, the statements in the House of Commons must, because of their origin, carry particular weight with potential jurors.
That being so, the Attorney General has had to consider whether it is open to him to ignore the effect of these statements on members of a jury which would try Patrick Ryan if he were extradited to Britain. He has concluded that he cannot ignore it.
Every citizen has a constitutional right to a fair trial. The Supreme Court has made it clear that the Extradition Act, 1965, ought not to be operated in such a manner as to violate the constitutional rights of those affected by its operation, and that even where the expressed statutory requirements have been fulfilled the Act may not be administered or applied in a way which would infringe such constitutional rights. The right to a fair trial includes a right to protection against the creation of prejudice or animosity in the minds of potential jurors such as would effectively deprive a person of the right to a non-biased trial. The presumption of innocence is not a procedural rule governing the onus of proof at a trial. It is a fundamental principle of substantive law.
Any decision to prosecute implies no more than that there is an issue to be tried as to whether the person charged is guilty or not guilty.
In the opinion of the Attorney General, the effect of the material which has been published has, manifestly and inescapably, been to create such prejudice and hostility to Patrick Ryan that, were he to be extradited to Britain, it would not be possible for a jury to approach the issue of his guilt or innocence free from bias. Having regard to the extreme nature and extent of the prejudicial material published the Attorney General has had to conclude that this prejudice is irredeemable. No direction to the jury by the trial judge to ignore the prejudicial matter to which they have been exposed could be effective in removing the bias which has been created.
That being so, the Attorney General is of opinion that it would be improper, and an abuse of the process of the courts, to initiate extradition proceedings in this case. The initiation of such proceedings, in the face of the objective evidence before the Attorney General in the case would be to operate legislation in a manner which would violate the constitutional and fundamental rights of the person affected by its operation.
The due process of law is intended to do justice in each individual case. It would be against the public interest to abandon that principle for the sake of broader policy considerations.
The Attorney General wishes to emphasise that his decision does not involve the formation by him of any view on the system of justice of the requesting State. The question of a fair trial arises only because of the unique circumstances of this particular case and the issue concerns only the capacity of any system of trial by jury, however fair the system might be, to provide a fair trial in those circumstances. The Attorney General expects, and hopes, that the case will remain a unique one and that the particular circumstances that required him to arrive at this decision will not be repeated.
The process of extradition is, and remains, part of the law of the State. It has and will continue to be used. This, however, does not end the matter. The charges which have been brought against Patrick Ryan are of a most serious kind, and they should be investigated by a court. The Criminal Law (Jurisdiction) Act, 1976, provides a means whereby certain serious offences committed outside this jurisdiction may be tried here. Such a trial may, under Irish law, take place before a court of three judges without a jury. Heavy penalties are prescribed by Irish law for those offences.
The Attorney General has requested the British Attorney General to have the evidence available to the British prosecuting authorities in this case examined with a view to the identification of all charges which could be tried in this jurisdiction.
Would the Taoiseach not agree that, now that the Attorney General has concluded that there was a sufficiency of evidence in relation to two of the warrants before him, he has discharged his obligations under the Extradition (Amendment) Act, 1987, and that the remainder of the treatment of this case should be left to the courts? Is the Taoiseach not aware that in a case of this kind it is open to the person to plead before our courts that pre-trial publicity and comment are of a nature to prejudice his case? Is the Taoiseach not further aware that section 8 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, extends the provisions of section 44 of the 1965 Act with this precise kind of situation in mind?
I want to make it clear that this is a matter for the Attorney General who is entrusted by statute to discharge these functions without approach or interference from any other person. Therefore, it is not for me to comment on the validity of the decisions of the Attorney General. It is clear from the statement the Attorney General has made, and which I have read to the House, that he formed a clear opinion that because of the way in which matters developed, he would not be justified in having these warrants endorsed because he could not be certain that the person concerned would secure a fair trial in Britain if he were extradited to that jurisdiction. I do not know that I can say a great deal more than that.
It is well established law that the Attorney General is not just an executive of the State but also a quasi-judicial person who has been described in the courts as the forensic defendant of the general public. In that regard, it would be the duty of the Attorney General to ensure that no member of the general public was subjected to any detrimental treatment and if he formed an opinion either under the 1987 or the 1965 Act that a person's constitutional rights might be interfered with in any way, he has an obligation as Attorney General, according to our courts, to act to ensure that the citizen would not be so deprived of their constitutional rights.
Is the Taoiseach not aware that there are provisions in our law, inserted there as recently as 1987, that are designed to ensure that our courts when hearing cases like this take into account the very factors that the Taoiseach has mentioned? Is the Taoiseach not surprised that the existence of those provisions has not been referred to in any way by the Attorney General? Further, is it not extraordinary, to say the least, that the Attorney General in his statement should give notice of his intention to examine the use of the 1976 Act in a case like this, and would the Taoiseach not agree that it would have been far more prudent on the part of the Attorney General, if he believes that course should be followed, to seek the evidence from the British authorities before announcing his intention to examine the use of the 1976 Act?
The only thing I can say in answer to that is that the Attorney General is aware of most of the evidence and that the initiative in regard to the Criminal Law (Jurisdiction) Act lies with the British authorities.
I must call Deputy De Rossa who has a question down on the matter and I will call Deputy O'Malley shortly.
Does the mere fact that the Attorney General has found it necessary to make a public statement explaining his decision not highlight a weakness in that it is the Attorney General who has to make the decision and would it not be better if our laws provided that this be dealt with by a court — in other words the presentation of prima facie evidence to a court?
I could not agree with that. In fact all the circumstances and all the evidence——
The Taoiseach agreed with it two years ago.
——would indicate that the bringing of this man before a court would have been an abuse of judicial procedure.
The Attorney General's statement points out that some of the information carried in newspaper reports in Britain emanated apparently from official sources and that this information was used to prejudice the position of the person being sought. Would the Taoiseach undertake to raise this matter with the British Authorities and seek an assurance that such official information will not be divulged in future?
Yes, I would be prepared to do that but it has happened before and, I am afraid, that in the nature of things it is likely to happen again.
Is the Taoiseach aware that in the legislation that was passed here a year ago, and which was renewed indefinitely in this House last week, there are two grounds set out on which the Attorney General is to satisfy himself, or be satisfied, in regard to the question of extradition? In respect of two of the warrants, at least, in this case, the Attorney General was so satisfied and he then made the decision not to have the warrant endorsed on a totally different third ground, which was not included in the legislation and may I ask the Taoiseach why that is so?
Because, as I have pointed out, the courts have said very specifically on a number of occasions that the Attorney General is not just an arm of the Executive, that he is not a servant of the Executive, but he is the forensic defendant of the people. That is the phrase used. Therefore, in that connection he will have a function under the 1965 Act and the courts have also clearly indicated that in no way should anybody be deprived of their constitutional rights under the 1965 Act. Therefore, as the forensic defendant of the people, and the individual in this case, he would consider it obligatory to ensure that even under the 1965 Act, apart from the 1987 Act, a person would not be dealt with detrimentally.
From the nature of what has happened in the past two weeks and the invidious position that the Attorney General has been placed in, would the Taoiseach not now consider looking at the 1987 Act and more properly give this function to a judge of this country rather than where it is placed presently?
I will always be open to consider a serious proposal of that kind from Deputy Spring whose remarks throughout this whole matter I have followed very closely. The Deputy made a very important contribution at one stage. But as the Deputy knows, the Government after mature consideration decided that the Attorney General is a quasi-judicial person; he has been so described by a former chief justice and, therefore, it seemed that he was the person best fitted to discharge this obligation. I do not think this case disproves that in any way.
I want to bring this matter to a finality. I would then hope that Deputy Seán Barrett would let us have a final supplementary.
A Cheann Comhairle——
I will reserve that then for Deputy Dukes.
Would the Taoiseach not agree that only for the 1987 Amendment Act the Attorney General would not have been involved in this process? Would the Taoiseach not agree that the spirit in which the Act was introduced was to deal with procedural matters only and, therefore, the decision as to whether the constitutional rights of an individual would be affected would normally have been dealt with in our courts? Would the Taoiseach not agree also that the Attorney General has no role in extradition under the 1965 Act?
There is an element of repetition entering into this matter.
I cannot follow the line of argument in the question.
(Interruptions.)
However, I would say this much, as I have already said to Deputy O'Malley, the courts have clearly indicated, and under the 1965 Act, the Attorney General has a responsibility to ensure that no citizen's constitutional rights are interfered with.
The courts have indicated that the citizen has the protection of the courts.
(Interruptions.)
In this case the Attorney General took the view——
In close consultation with the Taoiseach.
——that because of what had happened in the British media and elsewhere that the constitutional rights of this particular citizen would be interfered with had he been brought before the courts.
I am calling Deputy Alan Dukes for a final supplementary and I am going on then to other business.
You, Sir specifically indicated——
I am sorry, Deputy, but surely your Leader supersedes you.
The Deputy decided to hold back because you, a Cheann Comhairle indicated you would call him.
I did not mention the Deputy's name.
A Cheann Comhairle, you indicated twice that you were going to call me.
I now call Deputy Dukes.
May I put a brief supplementary question?
If the Deputy want a debate on this matter, we must have it another time.
The Taoiseach has given an extraordinarly long answer to this question and it raises a number of issues, Sir, which you have allowed to be raised on Question Time so I would ask for a little leeway because of the importance of the matter?
I have given a lot of leeway, Deputy Dukes and I am not going to allow the matter to enter that area of debate just now.
I wish to ask a question, Sir.
I have allowed Deputies a lot of latitude in the matter.
Is the Taoiseach not aware, Sir, that time after time during the debate on the Extradition (Amendment) Act, 1987, the Minister for Justice stated repeatedly in this House that the question of a decision as to whether to extradite or not to extradite is a matter for the courts and not for the Attorney General? He can refresh his memory on that by looking at columns 355 and 356 of the Official Report——
Deputy Dukes knows full well that quotations at Question Time are strictly not in order.
I do not intend to make this contentious. Would the Taoiseach not also agree that in the answers he has given he is coming as near as may be to saying that the Attorney General does not trust our courts to protect the constitutional rights of Irish people?
(Interruptions.)
Shame on you and your party.
A Cheann Comhairle, on a point of order——
Deputy Birmingham is not going to bait the Chair at all — a point of order? Let us hear it.
On a point of order, you will accept that on two occasions I succeeded in catching your eye.
(Interruptions.)
You will accept that on two occasions you indicated your intention of calling me.
At no time did I mention the Deputy's name. I think the records will show that.
You indicated ——
Deputy Birmingham please. I may have allowed the Deputy to intervene but he was superseded by other Members including his leader.
If we scrap the Extradition Acts we will knock out all this.
A Cheann Comhairle——
Resume your seat now, Deputy Birmingham.
Will you permit me to finish the point of order?
It is not a point of order.
Would you allow me in an orderly way to do this, to seek to notify informally one's intention to offer rather than have a number of people jumping to their feet at the same time in a noisy fashion?
A number of Deputies offered. It is the Chair's function to select members.
On this occasion the Chair gave an indication of his intention and reneged on it.