A study of political extradition in Ireland THE RE-EXTRADITION of the alleged former leader of the Irish National Liberation Army (INLA), Dominic MeGlinchey, to the South of Ireland after the Belfast appeal court acquitted him of murder has made legal history and called into question the issue of extradition between Britain and Ireland.
A new book Sheltering the Fugitive? by Michael Farrell, examines the history of extradition involving America, Ireland and Britain and explains why extradition is politically and legally contentious. Published in Ireland last month to coincide with the US Senate's hearings on the question of a new extradition agreement with Britain that would allow the handing over of Irish Republican Army (IRA) fugitives, Farrell claims that, in the light of the McGlinchey case, "the days of extraditing political offenders from the South (of Ireland) are numbered."
BOOK REVIEW son, a member of the Royal Ulster Constabulary (RUC) Reserve.
McGlinchey contested his extradition, claiming the murder of Mrs McMullan was a political offence and that if he were extradited he would be charged with other offences. MeGlinchey has since denied any part in the killing.
In an unprecedented ruling the Irish Supreme Court declared McGlinchey's offence was not political and he should be extradited. But McGlinchey didn't hang around waiting on the result of the hearing. He went on the run, and, described by the press as the most wanted man in Ireland, for eighteen months he achieved notoriety. He was also blamed for virtually every violent incident during that period when, in fact, the only accurate sightings of him seemed to be by Irish police who had their cars and uniforms stolen and were left stranded on cold country roads in their underwear.
He was finally caught during a shoot-out on St. Patrick's Day in 1984, and in an extraordinary emergency session of the Irish Supreme Court that same evening he became the first member of a Republican group to be extradited to the North aroun to he extradited to the North for a politically related offence.
Farrell says the previous law "was stood on its head. The concept introduced by the chief justice in Ireland of what a reasonable civilised person would consider to be political behaviour is totally contrary to the precedent set (in previous decades in Ireland, Britain and the USA)."
Farrell continues: "The precedent -setting cases have been British. The most famous is the Castioni case of 1890. An Italian marble sculptor living in London was charged with taking part in a rising in a canton in Switzerland and with murdering a member of the local government there. In that case the court delivered a judgement saying this was a political offence. They laid down the test of a political uprising, a genuine political conflict, and an incident which was part of that. The courts said in that case it was no part of their business to consider whether the crime involved was necessary to the uprising, or whether it was a heinous offence.
"The ruling in the English courts was, if the crime was incidental to and formed part of the political disturbance, then it was not extraditable," says Farrell.
That is the reason Irish courts have never extradited people to Britain or the North of Ireland if their offences were political.
"In past periods," according to Farrell, the (Irish) courts had taken a fairly firm line. On one occasion they stood up strongly to Britis
JOHN MEEHAN
However, while he believes that the current Anglo-Irish Agreement includes pressure for extradition, the Irish government will not be as keen to accede to British and Unionist demands because Farrell says, "the result of the McGlinchey case has exploded the situation in the face of the (Irish) Supreme Court."
Influential Irish government backbenchers have already called for a tightening up of the extradition law, as suggested by Farrell in an Irish Press article on August 7 last year:
"For all countries except Britain and the North, the Extradition Act (1965) specifically prohibits the chargging of extradited persons with any offense other than the one they were extradited for. By a curious anomaly, however, there is no such ban in relation to Britain and the North," he wrote.
"In some of (Ireland's) extradition treaties, the authorities seeking extradition must produce evidence in the Republic's courts to show that there is a prima-facie case against the accused before he or she can be handed over."
"Only now," says Farrell today, "with highly publicised political cases, has this become a matter of public notice. It is an extremely bad thing. Someone can be deprived of their liberty and sent into a foreign jurisdiction without there having to be. a shred of evidence against them. That has now happened in three
International Viewpoint 24 February 1986 highly publicised cases - Dominic MeGlinchey, Seamus Shannon and John Patrick Quinn."
"The McGlinchey case has col lapsed. There was clearly no evidence against him at the time his extradition was sought. The case against him in the non-jury Diplock courts relied heavily on affidavits which he swore at court here in the South, in an attempt to resist his extradition. That's important because these affidavits were not in existence when his extradition was applied for, the only evidence then was his fingerprints."
The Appeal court rejected the affidavits as conclusive evidence, which Farrell says "were supplied to the court without the consent of McGlinchey in a quite unprecedented action. No such action was ever taken before."
The McGlinchey case is dealt with in some detail in Sheltering the Fugitive? In September 1977 McGlinchey, who claims he was an active member of the IRA in South Derry, was arrested by Irish police and jailed for possessing firearms and resisting arrest. In jail he changed his allegiance from the IRA to the INLA.
In January 1982 he was released from prison and arrested on a warrant seeking his extradition to the North on a charge of killing 67-year-old Hester McMullen who was shot dead (near Toomebridge, County Antrim) during an attempted IRA ambush on her
pressure. Sean Bourke had assisted George Blake, a Soviet spy, to escape from jail. They held, in 1969, that was a political offence; Burke could not be extradited. At that time there not be extradited. At that time there was considerable British pressure on the Irish government to extradite Bourke."
"When the conflict exploded in the North of Ireland, the courts held that offences connected with the INLA or IRA were political. A series of judgements were quite clear on that. Then came the McGlinchey judgement."
"It came to light when an attempt was made to extradite some political offenders back to the North in 1929. The courts struck down all extradition North and South and that wasn't re-established until 1965. There was a fair amount of traffic in petty offenders North and South and viceversa. The police forces took it into hands to quite illegally trade those people across the border."
In Sheltering the Fugitive? Farrell recalls an incident in January 1962 when the RUC dumped a South Armagh man, Michael MeWall, across the border into the arms of the Irish police. Questioned about it in the Stormont parliament the minister of home affairs, Brian Faulkner, denied there was any collusion.
He said McWall had injured himself escaping from the Irish police the previous day and the RUC had called to give him a lift to the doctors, "McWall accepted, but on the way to the doctor's house he decided to change his mind and at a point near the border he voluntarily walked over into the Republic and gave himself up to the guards," said Faulkner.
"Extradition," says Farrell, "was a very esoteric issue. Very few people understood it. It has taken a long time to become a matter of public notoriety and concern. It has now. A lot of lawyers, have begun to feel that a serious blow has been struck to civil liberties in (Ireland) by these judgements, and this concern has spread to wider groups in society.
"Already the main opposition party has declared its opposition to extradition. If the (Irish) courts persist in applying these judgements there will be pressure for a change in the law to reverse these judgements when (Ireland) has a change of government."
When Farrell's book was published in Ireland on September 25 it coincided with hearings in the US Senate over a proposed new Anglo-American extradition treaty, which excludes any reference to political offenders. Each member of the US Senate was sent a copy of Sheltering the Fugitive? 26
Interview with the author
Question: What impact did the McGlinchey case have?
Answer: Extradition of IRA members - which is what this is all about - has always been a sensitive issue here because the majority of people believe they are political offenders. They don't necessarily support the activities of the IRA but they believe it is partition and the unjust treatment of the Catholic/nationalist minority in the North that is the root cause of the violence there. And they don't trust the RUC and the non-jury courts there to give nationalists a fair trial.
Extradition for IRA members was always rejected by courts in the South, citing the long-standing legal tradition of no extradition for political offenders — a tradition laid down by the British courts in the nineteenth century. But there has been a lot of pressure from Britain and the Ulster Unionists since the Northern "Troubles' began in 1969, and eventually the Fine Gael/Labour government changed its attitude in 1981-82, and the courts here took the hint and followed suit in the MeGlinchey case.
The RUC asked for MeGlinchey on a charge of shooting 67-yearold Hester McMullan, killed following an attempt to kill her RUC Reservist son - though they did not mention the RUC connection. It was an unsavoury case and the Supreme Court handed McGlinchey over, but the Chief Justice also took the opportunity to make a sweeping declaration that henceforth no offence involving violence could be regarded as political.
He was standing the law and the precedents on their heads. Under that ruling a member of the ANC [ African National Congress] or the FMLN would be extradited without a second thought. He said that the test of a political offence was what a reasonable, civilised person' would regard as political. He didn't define that, but it looks as if he meant someone like himself, well-paid, well-fed and middle class. But political offenders don't come from groups like that, they come from the poor and deprived - ghettodwellers.
Now the whole thing looks ludicrous. The case the court chose to change the law has collapsed and they have had to ask for MeGlinchey back. They've been made to look like fools.
Q. • But doesn't the McGlinchey case prove that the system works? He got a fair trial and he was acquitted.
A. On the contrary. There was never any case against McGlinchey. Half of the Crown case was only put together after the RUC had asked for his extradition - it consisted of the affidavits he swore in the Southern courts to resist extradition. And he wasn't told they could be used in evidence against him in the North. That highlights a major loophole in the law - that the British authorities do not have to establish a primafacie case against someone they want extradited.
More important, it became clear in court that the RUC probably had as much evidence against McGlinchey on charges of attacking RUC men and British soldiers but didn't press them because they were too obviously political. In other words they conned the Southern courts. That has left a bad taste in people's mouths and made them question the whole system.
Q. You have opposed extradition from the Republic and you are against the new Anglo-Us extradition treaty. Why are you so opposed to handing over political offenders?
A. Because extradition from the Republic involves denying that the conflict in the North is a political one - and recognition of that is a precondition for any solution. And it involves acceptance of the unsatisfactory legal system there. The same reasoning applies to the
More generally, I feel that the right of political asylum which this tradition protects is very important for those struggling against oppressive regimes anywhere - South Africa, the Philippines, El Salvador. If the Reagan administration gets this treaty through, it has already indicated it will propose similar treaties with other "friendly" states.
And if small countries like Ireland abandon this tradition it will make it easier for the big powers to do so too. The nonreturn of political offenders is an important legal tradition. It should not be jettisoned for short-term political expediency. O
International Viewpoint 24 February 1986