In the matter of the Extradition Acts 1965-1994.
Nessan Quinlivan (applicant) v Noel Conroy and Hugh Sreenan (respondents).
Practice - Discovery - Extradition - Respondents senior police officers - Whether documents in possession or power of respondents - Rules of the Superior Courts 1986 (SI No 15).
The High Court (before Mr Justice Kinlen); judgment delivered 3 April 1998.
Where a party has not been and never was in possession, power or custody of documents sought by way of discovery relating to matters in question, then no order of discovery would be made against that party.
Mr Justice Kinlen, in the High Court, so held in refusing the application for discovery of the applicant.
Mary Ellen Ring BL for the applicant; Isobel Kennedy BL for the respondents.
Mr Justice Kinlen said that the applicant was subject to proceedings seeking his extradition to England on foot of four warrants. The offences alleged were conspiracy with others to murder Sir Charles Tidbury; conspiracy with others to cause explosions; escaping from lawful custody on 7 July 1991 while awaiting trial; and unlawfully and maliciously wounding Malcolm Kemp with intent to do him grievous bodily harm.
On 11 December, 1995 the President of the District Court made orders for the delivery of the applicant into the custody of the city of London police on foot of the four warrants. The applicant appealed the orders under section 50 of the Extradition Act 1965 as amended and the applicant was admitted to bail by the High Court on 18 December 1995. The proceedings were adjourned from time to time and eventually appeared in the list to fix dates on 9 December 1996. The applicant had in the interim been charged with criminal offences and proceedings were pending in this regard before the Special Criminal Court. On 12 December 1997 a nolle prosequi was entered by the Director of Public Prosecutions in relation to the criminal charges.
Mr Justice Kinlen said that the applicant alleged that at the time of his arrest on 2 October 1990 there was enormous publicity in the business media which purported to link the applicant with a large number of murders, bombings, etc, for which no prosecution was taken and no warrants were issued against the applicant and that due to the extent and the nature of such publicity he was not able to obtain a fair trial in Britain.
Mr Justice Kinlen said that the applicant alleged that police and prison officials encouraged and assisted him in the alleged escape from Brixton prison with a view to leading security authorities to alleged associates in the IRA. The applicant alleged that such activity supported the contention that the offences for which extradition was sought were political offences or connected with political offences. Mr Justice Kinlen said that at this late stage the applicant sought a number of official reports prepared out of the events of 7 July 1991.
Mr Justice Kinlen said that the law was laid down by Fusco v O'Dea [1994] 2 IR 101 and the applicant in his written submission agreed that discovery would seem not to be available directly against the police. However, the applicant reserved the right to argue that the Fusco case was decided per incuriam; that the issue of sovereign immunity was never raised before the Supreme Court; and that by seeking Fusco's extradition the UK authorities had waived such immunity as they may have possessed and accordingly sovereign immunity was not a real barrier to discovery in that case.
Referring to the Rules of the Superior Courts 1986, Mr Justice Kinlen said that Order 31 rule 12 provided inter alia that any party may apply for an order directing any other party to make discovery of documents which "are or have been in his possession or power relating to any matter in question ... " Mr Justice Kinlen noted that the order made no use of the word "procurement". A document was within the power of a party if he had an enforceable legal right to obtain (from whoever actually holds the document) inspection of it without the need to obtain the consent of anyone else (per Mr Justice O'Flaherty in Bula Ltd v Tara Mines [1994] ILRM 111). Mr Justice Kinlen said that the respondents were senior police officers and they had never had any of the documents mentioned on the applicant's list in their possession or power and had so sworn.
Mr Justice Kinlen refused the application on the grounds that the respondents were not and never had been in possession, power or custody of the documents relating to the matters in question.
Solicitors: Michael E. Hanahoe & Co (Dublin) for the applicant; Chief State Solicitor for the respondent.