Ellis and Gilligan, In re

The House of Lords dismissed conjoined appeals against magistrates' orders under the Backing of Warrants (Republic of Ireland) Act 1965. The court held that the test in section 2(2) of the 1965 Act — whether the offence specified in an Irish warrant "corresponds" with any offence under the law of the part of the United Kingdom which is indictable or punishable on summary conviction with imprisonment for six months — must be applied by construing the warrant itself, using the ordinary meaning of "correspond". Magistrates are ordinarily confined to the terms of the warrant (and exceptionally to ancillary material explaining technical language) when deciding correspondence. The House refused to recognise a broad common-law abuse of process jurisdiction in proceedings under the 1965 Act: the statutory protections in section 2(2) are exhaustive and Parliament did not intend that magistrates or the High Court should entertain general abuse of process challenges to endorsed warrants.

Background and relief sought.

The appeals arose from applications for writs of habeas corpus challenging magistrates' orders made under the Backing of Warrants (Republic of Ireland) Act 1965 to deliver up the appellants to the Republic of Ireland. The Irish warrants charged diverse offences, including murder, drug and firearms offences and sexual offences. The appellants contended that the offences specified in the Irish warrants did not "correspond" with offences under English law of the requisite seriousness and that the endorsement process had been abused.

Procedural history.

• The Divisional Court had earlier held in Reg. v. Belmarsh Magistrates' Court, Ex parte Gilligan [1998] 2 All E.R. 1 that, on the warrants before it, the correspondence requirement in section 2(2) was satisfied as a matter of law; it also rejected the submission that magistrates had jurisdiction to entertain an abuse of process application. The Ellis committal was treated similarly by the Divisional Court.

Issues framed by the House of Lords.

1. What materials may a magistrate take into account when deciding whether the offence specified in an Irish warrant "corresponds" with an offence in English law for the purpose of section 2(2) of the 1965 Act?
2. What is the proper meaning of the word "correspond" in section 2(2)?
3. Whether a magistrate or the High Court has jurisdiction to entertain a stay or other relief on abuse of process grounds in proceedings under the 1965 Act.

Court's reasoning and conclusions.

• The court endorsed the Divisional Court's approach: the magistrate must read the warrant and determine what offence is specified from the warrant itself; extrinsic material is not admissible except exceptionally to explain technical language or expressions a magistrate would not otherwise understand.
• "Correspond" is an ordinary English word and should be applied in its ordinary, flexible sense. The required test is whether what is specified in the warrant would, if it had occurred in England, correspond with some sufficiently serious English offence (i.e. an indictable offence or one punishable on summary conviction with imprisonment for six months). Exact identity of juristic elements is not required; substantial similarity or analogy is sufficient.
• Applying those principles, the House held that the warrants in both cases (with narrow exceptions previously identified by the Divisional Court) satisfied the correspondence test.
• The House held that magistrates do not have jurisdiction under the 1965 Act to entertain a general abuse of process challenge and that the High Court likewise lacks an original jurisdiction to entertain such a challenge in the backing-of-warrants context; the statutory safeguards in section 2(2) are the intended limits on review.

Practical note: the court emphasised the special, close relationship between the United Kingdom and the Republic of Ireland and the policy of a simple, expeditious procedure for backing warrants when construing the Act.

Appeals dismissed. The House held that (1) the magistrate's inquiry under section 2(2) is principally confined to the warrant itself (with limited exception to explain technical language); (2) "correspond" in section 2(2) is to be given its ordinary, flexible meaning so that substantial similarity or analogy with some sufficiently serious English offence suffices and exact identity of juristic elements is not required; and (3) there is no jurisdiction under the Act for magistrates (nor for the High Court as a matter of original jurisdiction) to entertain a general abuse of process challenge to an endorsed warrant, such remedies being limited to the statutory grounds in section 2(2).

The matters reached the House of Lords on appeal from the Divisional Court of the Queen's Bench Division. The Divisional Court had dismissed the Gilligan habeas corpus application in relation to sixteen of the Irish offences and allowed it in relation to two ([1998] 2 All E.R. 1). The Ellis decision in the Divisional Court (27 January 1998) was a brief unreported judgment but followed the reasoning in Gilligan. The House of Lords upheld the Divisional Court's approach and dismissed both appeals.