BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. This matter comes before the court firstly on an application pursuant to Article 40.4.2 of Bunreacht na hEireann seeking an inquiry into the custody of Laszlo Varga (otherwise Lazlo Varga) (hereinafter for convenience called "the plaintiff') at present detained in the Central Mental Hospital, Dundrum Road and secondly on foot of proceedings brought by the plaintiff pursuant to the Extradition Act, 1965-1994 whereby the plaintiff claims an order for his release under section 50 of the Extradition Act, 1965 as amended on the grounds set out in the summons.

These proceedings have been consolidated and are now heard together.

The following are the core facts which are not in dispute. On the 15 May, 1968 the plaintiff was convicted of murder committed in England on the 10 June, 1966 and sentenced to imprisonment for life. On the 19 May, 1972 the English Home Secretary pursuant to section 72 of the English Mental Health Act of 1959 having been satisfied that the plaintiff was suffering from a mental disorder that required his detention in hospital for mental treatment, by warrant directed the plaintiff to be so detained. From time to time the plaintiff was detained in different hospitals and on the 20 February, 1996 was in Three Bridges Regional Secure Unit, Uxbridge Road, Southall, Middlesex. On that date he left the English jurisdiction and came into the jurisdiction of this court.

On the 21 January, 1997 the plaintiff was at 407, North Circular Road, Dublin and was on that date arrested by Sergeant Martin O'Neill, a member of An Garda Siochana on a warrant issued by a Justice in England which warrant was endorsed for execution in the State by Assistant Commissioner Patrick O'Toole of An Garda Siochana. All the appropriate formalities were complied with in the procedure and no issue arises with regard to this aspect of the case.

The plaintiff appeared before the District Court on the 8 December, 1997 when an application for rendition was heard. All the formal evidence was given and no procedural point arises in this case.

The warrant is in the following form:-

3. On the 19 May 1972, under Section 72 of the Mental Health Act 1959, the Secretary of State, being satisfied by the reports of 2 medical practitioners that the said ("plaintiff") was suffering from mental illness and that the mental disorder was of a nature or degree which warranted the detention of the said ("plaintiff") in a hospital for medical treatment, was of opinion, having regard to the public interest and all the circumstances, that it was expedient so to do, by warrant directed that the said ("plaintiff") be removed to and detained in Broadmoor Hospital. The said Secretary of State, under section 74 of the Mental Health Act 1959, further directed that the said ("plaintiff") be subject to the special restrictions set out in Section 65 of the Mental Health Act 1959.

4. When the Mental Health Act 1983 (hereafter referred to as "the 1983 Act") came into force, by virtue of paragraph 3 of Schedule 5 to the 1983 Act, the said ("plaintiff") remained detained as if the directions referred to in paragraph 3 of this warrant had been made under the corresponding provisions of the 1983 Act, namely Sections 47 and 49 respectively.

5. On the 20 February 1996 the said ("plaintiff") who remained detained and who was in The Three Bridges Regional Secure Unit, Uxbridge Road, Southall, Middlesex UB1 3EU, England, was allowed by the responsible medical officer a day's unescorted leave until 10 pm from The Three Bridges Regional Secure Unit aforesaid.

6. On the 20 February 1996 the said ("plaintiff") failed to return to The Three Bridges Regional Secure Unit aforesaid.

7. The said ("plaintiff") who remains absent without leave from The Three Bridges Regional Secure Unit aforesaid in which he is required to be detained after being convicted of the said offence, is a convicted mental patient liable to be retaken under Section 18 of the 1983 Act.

The first point taken by Mr Grogan, SC counsel for the plaintiff is as follows. He submits that the warrant clearly shows that the plaintiff having been sentenced was on the 19 May, 1972 serving the sentence at Her Majesty's Prison, Maidstone. It also shows that the English Home Secretary by warrant directed the plaintiff to be removed from the prison and detained in Broadmoor Hospital. This power was exercised pursuant to the Mental Health Acts. He submits that thereafter the warrant is silent as to the circumstances in which the plaintiff comes to be detained in the Three Bridges Regional Secure Unit. He submits that since the warrant requires the plaintiff to be arrested "for the purpose of enabling him to be returned to The Three Bridges Regional Secure Unit" the warrant is bad since it fails to show on its face that the plaintiff's detention in this institution is lawful. Counsel further submits that it is not open to the defendant to seek to rely upon affidavits filed in connection with proceedings brought under section 50 of the Extradition Acts but that the merits of the warrant must be viewed as of the time when the order of the District Court is made. He further submits that notwithstanding the fact that the point was not expressly taken before the District Judge the obligation to ensure that the warrant is correct remains on the District Judge and if the warrant is flawed the fact that the point was not expressly taken before the District Judge is not material.

I do not accept the point made by counsel for the plaintiff. In my view the warrant and the quotations set out above clearly indicate that on the 19 May, 1972 the English Secretary of State pursuant to the powers vested in him under the Mental Health Act of 1959 directed that the plaintiff be removed and detained in Broadmoor Hospital. Thereafter and after the coming into operation of the 1983 Mental Health Act the plaintiff "remained detained" and on the 20 February, 1996 was in The Three Bridges Regional Secure Unit. In my view it is unnecessary for the warrant to recite the stages by which the plaintiff came to be so detained. Providing that the warrant makes it clear that the grounds for the detention in Broadmoor Hospital are identified and providing that it is recited that the plaintiff "remained detained" in The Three Bridges Regional Secure Unit then the validity of such detention is established. In my view the only possible interpretation that can be placed upon the word "remained" is that it relates back to the warrant referred to in paragraph 3 and that the detention was a continuation of the order made by the British Home Secretary on the 19 May, 1992.

Interpreting the warrant in this way it is unnecessary for me to determine the other issues which have arisen under this heading.

I turn now to consider the submission made by Mr Grogan on the application brought under the Extradition Acts.

It is submitted by counsel that the stated purpose for which the plaintiff should be arrested is "for the purpose of enabling him to be returned to The Three Bridges Regional Secure Unit aforesaid to undergo detention under the directions referred to in paragraph 3 of this warrant pursuant to the sentence of imprisonment for life imposed on the 15 May, 1968 . . .". It is submitted that in fact the true purpose for which he is to be returned to this establishment is not for the purpose of punishment but for the purpose of administering treatment for the condition from which the plaintiff suffers namely schizophrenia. It is submitted that this is clear from the fact that the plaintiff has been detained continuously from 1968 until the 20 February, 1996 a period of nearly 28 years. It is not alleged that the plaintiff committed a murder in such heinous or depraved circumstances as would justify such a long period of incarceration by way of punishment given that in default of an express recommendation by the trial judge, of which there was none in this case, that the prisoner serve a sentence in excess of which is normal that his discharge on licence would have occurred after a period of 14 to 16 years. That being so it follows it is submitted that his continuous detention must result from treatment for the plaintiff's mental health and that the purpose for which his continued detention is sought is to enable him to undergo compulsory treatment for his mental illness rather than to punish him. It is further submitted that given that a very small percentage (39 life sentence prisoners) have served 28 years or more the plaintiff's case is quite exceptional and it is submitted that the circumstances of this case falls squarely within the terms of section 50(2)(bbb) of the Extradition Act, 1965 as amended.

The subsection provides that:-

50(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.

(2) A direction under this section may be given by the High Court where the court is of opinion that --

(bbb) by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47".

I have no doubt that the plaintiff qualifies under the first of the two provisions in the subsection namely that there is a significant "lapse of time" since the commission of the offence however he must, to avail of the provisions of the section establish "other exceptional circumstances" and he must satisfy me that it would be "unjust oppressive or invidious" to deliver him up.

In my view there is no doubt but that the plaintiff remains subject to a sentence of life imprisonment and I accept the submission of the defendant's counsel Miss Kennedy that the plaintiff's continued detention is part of his original sentence of life imprisonment whether his detention be in a mental hospital or in a prison. I accept that the sentence remains in force until such time as the English Secretary of State may order that the plaintiff be released on licence.

I accept the evidence in Dr Dolan's affidavit that The Three Bridges Secure Unit is a place of lawful custody for patients convicted of a criminal offence who are transferred to hospital under section 47 and 49 of the Mental Health Act, 1983. I also accept the evidence of Ms Jennifer Morris that The Three Bridges Regional Secure Unit is a Health Service Hospital within the meaning of the National Health Service Act, 1977 and as such is a place where a person may be detained at the direction of the Secretary of State under the Mental Health Act of 1983.

In my view the fact that the plaintiff may be treated for schizophrenia in this establishment does not deprive it of its status as a Health Service Hospital within the meaning of the National Health Service Act, 1977 to which a prisoner serving a sentence may be sent.

That being so unless there is evidence to establish this fact I am not prepared to find as a fact that the purpose for which his return is sought is for the purpose of treating the plaintiff as opposed to punishing him by depriving him of his liberty.

Section 50(2)(bbb) requires that there be not only lapse of time but in addition "exceptional circumstances" which would having regard to the circumstances make it unjust, oppressive or invidious to deliver the plaintiff up. I accept on the authority of Ellis v O'Dea (No 2) [1991] IR 251 that, in the words of Chief Justice Finlay;

"if the plaintiff wishes to establish a general circumstance leading within the subsection to injustice or oppression, it would be necessary for him to adduce evidence to discharge a burden of proof in that regard".

I am unable to identify anything in the evidence in this case which establishes as opposed to suggests, oppression of the plaintiff such as would make it invidious to deliver him up under section 47. I recognise that the circumstances of this case could support the suggestion that his continued detention is for treatment however this in my view falls far short of discharging the onus of proof required under the Act.

Accordingly I am not prepared to make the order sought.