JF Law & French |TCLR Junior Editorial Board
Recent high profile extradition cases, in particular the case of solicitor Michael Lynn, have got me thinking about what is a hugely important, yet little-important legal process. Like most people, I had heard of extradition and had a rough idea of its meaning and purpose, but never really understood the system’s inner workings. I thought the writing a blog post on a topical legal issue to be an ideal opportunity to explore the mechanics of extradition in greater detail. In this post, I would like to share with you what I learned and how this relates to the case of Michael Lynn.
Extradition is the official means of transferring a person living in one country to another where he is wanted for a crime. The Irish system of extradition is governed by a number of domestic statutes, international agreements and, more recently, EU measures. The basis for all this is the Extradition Act 1965, s 9 of which provides:
Where a country in relation to which this Part applies duly requests the surrender of a person who is being proceeded against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person shall, subject to and in accordance with the provisions of this Part, be surrendered to that country.
The process to be followed by countries seeking the extradition of a fugitive living in Ireland is laid out in a set of guidelines available from the Department of Justice. A request for extradition must be made by the Ambassador or other diplomatic official to the Department of Foreign Affairs, who then forward the request to the Dept. of Justice and the Attorney General. The Dept. of Justice request that the Gardaí investigate his/her whereabouts. Once the Attorney General confirms that the request for extradition is in keeping with the 1965 Act and any other relevant agreements, the Minister for Justice signs a certificate for extradition. The Attorney General then presents the certificate to the High Court, where an arrest warrant will be issued. The Gardaí apprehend the fugitive and bring him/her before the High Court. The extradition hearing in the High Court is not concerned with the guilt or innocence of the person; the judge must issue the extradition order once she is satisfied that Ireland has an extradition agreement or treaty with the requesting country and that the request is made in keeping with the 1965 Act and such an agreement. The fugitive will then be surrendered to the requesting country after fifteen days, during which additional habeas corpus proceedings may be heard. There are provisions in much of the relevant law for these procedures to be amended in cases of particular urgency, but I won’t go into that here.
These guidelines only apply to countries outside the European Arrest Warrant system, as implemented by the European Arrest Warrant Act 2003. Under this system, a warrant issued by a judge in an EU member state can be transmitted to the Irish Minister for Justice, endorsed by an Irish High Court judge, and executed by the Gardaí much more easily than a traditional extradition request.
So why is this in the news? Well, Michael Lynn was an Irish solicitor-cum-property-developer who racked up €80 million in debt when his business, Kendar Holdings, collapsed in 2007. The Law Society, concerned with the operations of his business, shut down his legal practice and sought to examine him in the High Court over suspicions that he used solicitors’ undertakings (property held in trust for clients during residential property transactions) to draw down mortgages to expand his business. When Mr. Lynn didn’t show, a bench warrant was issued for his arrest – but he had already fled the country. Since 2011, Mr. Lynn has lived in Brazil, where he had some business dealings, residency after the birth of his son and, crucially, there was no extradition treaty with Ireland.
The Extradition Act 1965 works on the basis that Ireland would already have entered into a bilateral agreement with the requesting country. Outside the EU, Ireland has extradition agreements with the USA and Australia. Police in Brazil told the Irish Times that Mr. Lynn believed he would therefore be safe in Brazil, but in mid-2013, Ireland and Brazil entered into talks on an extradition treaty and agreed that in the meantime, extradition requests would be treated on the basis of reciprocity. Under this arrangement, the Irish government requested Mr. Lynn’s extradition through Interpol in August last year, since when he has been in prison awaiting the extradition hearing. This week, his appeal to the Brazilian Supreme Court failed, and he will return to Ireland in January to face charges of theft.
Having known very little about the workings behind extradition before I started this blog post, in is undoubtedly true that a very high-profile or public interest case such as that of Michael Lynn can be a prompt towards a more comprehensive understanding of our legal system.