Dunne v High Court Dublin, An Irish Judicial Authority

In a Part 1 extradition appeal, the statutory seven-day period for giving notice requires both filing with the court and service on the respondent and the Crown Prosecution Service. Filing must precede service. Those requirements are jurisdictional and cannot be waived, dispensed with or extended by the court. Practical difficulty arising from an appellant’s lack of representation or custody does not alter the statutory rule. Separately, Article 2 or Article 3 arguments require sufficiently cogent evidence of a real risk or near certainty of death, or of treatment attaining the required severity. Uncorroborated allegations of threats, dietary difficulties or an allergy did not meet that threshold.

Dunne brought a statutory appeal against the Westminster Magistrates’ Court decision of 14 January 2009 ordering his extradition to Ireland to serve sentence following his conviction in absentia for sexual intercourse with a mentally impaired person. He alleged that extradition would breach Articles 2, 3 and 8 of the European Convention on Human Rights because of threats from Irish Republicans, an allergy to red onions, alleged mistreatment and the absence of a strictly kosher diet.

A preliminary issue arose because Dunne filed his notice within the statutory period but failed to serve it on the respondent or the Crown Prosecution Service. The central questions were whether the Administrative Court had jurisdiction despite that failure and, if so, whether the human-rights objections were arguable.

1. Jurisdiction. The court followed and applied Mucelli v The Government of Albania [2009] UKHL 2, [2009] 1 WLR 276. Under section 26(4) of the Extradition Act 2003, giving notice requires filing the notice with the court and serving it on the respondent and the Crown Prosecution Service within seven days. Filing must precede service. Neither requirement can be waived or dispensed with, and an application for an extension out of time is unavailable.
2. Although the appellant filed his notice within time, he did not serve it. The Administrative Court therefore lacked jurisdiction to hear the appeal. The statutory requirements remained decisive despite the appellant’s lack of representation and custody.
3. Merits considered in the alternative. The appellant’s complaints did not disclose any tenable ground under Articles 2 or 3. The evidence did not establish a near certainty of death, a real risk of serious harm, or treatment reaching the requisite severity. The alleged onion allergy and absence of a guarantee of onion-free kosher food did not establish a real risk of inhuman or degrading treatment. Evidence of historic attacks or threats did not sufficiently establish either their cause or a continuing risk in Irish custody.
4. The appeal would therefore have been dismissed on the merits in any event. The court also endorsed the desirability of standard written advice explaining the strict filing and service requirements to unsuccessful extradition defendants.

• Westminster Magistrates’ Court: On 14 January 2009 District Judge Wickham ordered Dunne’s extradition to Ireland.
• High Court (Administrative Court): The court held that it lacked jurisdiction because the notice had not been served within the statutory period. It nevertheless considered the merits and concluded that the appeal would have been dismissed in any event.