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Law Society Gazette | gazette.ie Jan/Feb 2017
EXTRADITION
39
“other than the United Kingdom”. It would
be relatively straightforward to rectify this
position by formally introducing a new
SI extending part II of the 1965 act to
specifically cover Britain.
In contrast to the current EAW system,
it would be necessary in all cases to prove
correspondence of offences between Ireland
and Britain. Given the historical links, it
is not anticipated that this would present a
substantial issue.
There would undoubtedly be delays
encountered in using the convention as the
basis of extradition, as it has more ‘moving
parts’ – with, for example, the diplomatic
transmission of extradition documents being a
requirement.
While Britain does not have a
constitutional bar on extraditing its own
citizens to Ireland, this contrasts with the
position in Ireland. By virtue of section 14
of the Extradition Act 1965 (as substituted),
Ireland “shall not” grant the extradition of a
person to Britain if that person “is a citizen
of Ireland, unless the relevant extradition
provisions … provide”. The exceptions to this
bar are set out in, and limited to, the EAW
system and extraditions made pursuant to the
bilateral extradition treaties that Ireland holds
with the USA and Australia.
In effect, this would mean that, where
Britain made an extradition request under the
convention (as opposed to the EAW system)
to Ireland, any Irish citizen present in Ireland
would have an automatic defence preventing
their extradition to Britain.
The bespoke option
It is open to Ireland and Britain to enter into
their own bespoke extradition arrangements.
This could take the form of either a new
bilateral extradition treaty or, alternatively, by
enacting reciprocal primary legislation in both
jurisdictions similar to that which previously
existed. It is apparent that Ireland will not
obtain any preferential treatment in terms of
negotiating Brexit. The German chancellor’s
statement is unambiguous in this regard:
“Of course, I cannot anticipate the outcome of
the negotiations. The 27 member states will
bring their influence to bear. The Irish voice
will be heard as much as every other voice.”
It therefore appears optimistic to be overly
reliant upon the EU and Britain reaching
a collective extradition agreement prior to
Brexit. A prudent course of action for Ireland
would be to consider negotiating in due
course, and indeed implementing as required,
a new bilateral extradition agreement with
Britain, while keeping a keen eye on wider
developments.
A spokesperson for the Irish government
recently stated that, while there was an
“agreed and united EU position that there
can be no negotiation until article 50 has been
triggered” and while “Ireland fully adheres to
that position”, that did not mean that Ireland
“cannot have exploratory discussions on
ongoing bilateral issues, including those which
will need to be sorted out”.
When considering Brexit and the
necessity to be proactive in future planning,
the words of the American poet Robert Frost
are fitting: “The afternoon knows what the
morning never suspected.”
LOOK IT UP
CASES:
n Metropolitan Police Commissioner v
Hammond [1965] AC 810
n State (Quinn) v Ryan [1965] IR 70
LEGISLATION:
n Backing of Warrants (Republic of
Ireland) Act 1965 (Britain)
n Council Decision 2006/697/EC of 27
June 2006
n Council Framework Decision of 13
June 2002 on the European Arrest
Warrant (EAW Framework Decision)
n European Convention on Extradition
1957
n Extradition Act 1965
n Petty Sessions (Ireland) Act 1851
n Extradition Act 1965 (Application of
Part II) Order 2000 (SI 474/2000)
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Carmel Nielsen
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