Matter of Doherty by Gov. of United Kingdom

• Decision Date: 12 December 1984
• Docket Number: No. 83 Cr. Misc. 1.,83 Cr. Misc. 1.
• Citation: 599 F. Supp. 270
• Parties: In the Matter of the Requested Extradition of Joseph Patrick Thomas DOHERTY by the GOVERNMENT OF the UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND.
• Court: U.S. District Court — Southern District of New York

599 F. Supp. 270

In the Matter of the Requested Extradition of Joseph Patrick Thomas DOHERTY by the GOVERNMENT OF the UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND.

No. 83 Cr. Misc. 1.

United States District Court, S.D. New York.

December 12, 1984.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for petitioner; Thomas E. Moseley, Sp. Asst. U.S. Atty., New York City, of counsel.

Somerstein & Pike, New York City, for respondent; Mary Boresz Pike, Stephen A. Somerstein, New York City, of counsel.

SPRIZZO, District Judge:

Petitioner United States of America, acting on behalf of the United Kingdom of Great Britain and Northern Ireland, has requested the extradition to the United Kingdom of respondent Joseph Patrick Thomas Doherty. This request is made pursuant to 18 U.S.C. § 3184 and the Treaty of Extradition between the United States of America and the United Kingdom of Great Britain and Northern Ireland, 28 U.S.T. 227, T.I.A.S. No. 8468 (effective Jan. 21, 1977) ("the Treaty"). The Government of the United Kingdom seeks Doherty's extradition on the basis of his conviction in Northern Ireland on June 12, 1981 for murder, attempted murder, and illegal possession of firearms and ammunition, and for offenses allegedly committed in the course of his escape from H.M. Prison, Crumlin Road, Belfast, on June 10, 1981.

Doherty was arrested by the United States Immigration and Naturalization Service on June 18, 1983, in New York City. A provisional warrant of arrest was issued by Chief Judge Constance Baker Motley on June 27, 1983, pursuant to Article VIII of the Treaty. A formal request for extradition was filed in accordance with Article VII of the Treaty in the Southern District of New York on August 16, 1983. A hearing was held by the Court in March and April 1984 pursuant to 18 U.S.C. § 3184.

The facts of this case are not in substantial dispute. The incidents giving rise to the extradition request are briefly as follows. Respondent Doherty was a member of the provisional Irish Republican Army ("PIRA"). On May 2, 1980, at the direction of the IRA, Doherty and three others embarked upon an operation "to engage and attack" a convoy of British soldiers. Transcript of Hearing ("Tr.") at 631.

Doherty testified that he and his group took over a house at 371 Antrim Road in Belfast, and awaited a British Army convoy. Some three or four hours later, a car stopped in front of 371 Antrim Road and five men carrying machine guns emerged. These men, members of the Special Air Service of the British Army ("SAS"), and Doherty's group fired shots at each other.

In the exchange of gunfire Captain Herbert Richard Westmacott, a British army captain, was shot and killed. Doherty was arrested, charged with the murder, among other offenses, and held in the Crumlin Road prison pending trial. On June 10, 1981, after the trial was completed but before any decision by the Court, Doherty escaped from the prison along with seven others. He was convicted in absentia on June 12, 1981 of murder, attempted murder, illegal possession of firearms and ammunition, and belonging to the Irish Republican Army, a proscribed organization.

Pursuant to Article IX of the Treaty, the Court must be satisfied that probable cause exists with respect to the offenses for which the requesting party seeks Doherty's extradition. See Sidona v. Grant, 619 F.2d 167, 175 (2d Cir.1980). Petitioner produced a Certificate of Conviction for the offenses related to the death of Captain Westmacott, and a Warrant for Arrest of Doherty with respect to the escape from the Crumlin Road prison. See Request for Extradition. Doherty has not contested that he is, in fact, the person named in those documents, or named as respondent herein. Indeed, he testified as to his involvement in both the May 2, 1980 incident which resulted in the death of Captain Westmacott and the June 10, 1981 prison escape. See Tr. at 631-45, 654-67. Therefore, the Court finds that probable cause clearly exists.

Doherty asserts that the extradition request must be denied, however, pursuant to Article V(1)(c)(i) of the Treaty, which provides:

(1) Extradition shall not be granted if:

* * * * * * (c)(i) the offense for which extradition is requested is regarded by the requested Party as one of a political character; ...

Petitioner denies that this so-called "political offense" exception to the Treaty is applicable in this case. The Court must determine, therefore, whether the offenses for which Doherty was convicted in relation to the May 2, 1980 incident, and those for which he is accused in connection with the escape from prison, are of a political character.

It seems clear, as the evidence established, that the centuries old hatreds and political divisions which were spawned by England's conquest of Ireland in medieval times continue to resist any permanent resolution. Instead they have smoldered, sometimes during long periods of quescience, only to repeatedly erupt with tragic consequences. The offenses which give rise to this proceeding are but the latest chapters in that unending epic. See In Re Mackin, 80 Cr.Misc. 1, p. 54 at 49-74 (S.D. N.Y. Aug. 13, 1981), appeal dismissed, 668 F.2d 122 (2d Cir.1981).

The Provisional Irish Republican Army, of which respondent is a member, claims to be a contemporary protagonist in that ancient struggle. The evidence established that the Irish Republican Army and more particularly the PIRA, had for a time lost much public support and had indeed become dormant, while other groups, emulating the pattern of civil rights groups in this country, sought to achieve an amelioration of alleged political and economic deprivations by peaceful means. It is indeed unfortunate that those efforts failed, but fail they did. Perhaps, given the long standing enmities, anxieties, and fears that exist between the Unionists and Republicans in Ireland, it was too much to expect that they would succeed. Nevertheless it was the collapse of those peaceful efforts that ironically led to a resurgence of the PIRA.

On January 30, 1972 in Londonderry, what started out as a peaceful demonstration ended in a bloody confrontation in which 13 civilians were killed. See Tr. at 61, 133-34. Since British troops were regarded as at least in part responsible for that tragedy, their presence which had been initially welcomed, became a subject of increasing antipathy and concern.¹ The result was a fresh impetus for the PIRA, and increasing support for those who would resolve Ireland's political problems by violence.²

Following the resurgence of the PIRA, the level of violence both by the PIRA and armed Loyalist groups continued to escalate in a continuing and seemingly inexorable series of events that between 1972 and 1979 claimed the lives of over 1,770 persons, nearly 1,300 of whom were civilian casualties, and injured hundreds of others. See Review of the Operation of the Northern Ireland (Emergency Provisions) Act 1978 (the "Baker Report") (P.Ex. 18) at 152; see also New Ireland Forum, The Cost of Violence arising from the Northern Ireland Crisis since 1969 (R.Ex. UU) at ¶ 2.1. This alarming and at times wanton destruction of life and property necessitated the enactment of special laws, see Northern Ireland (Emergency Provisions) Act 1973 (R.Ex. BB); Prevention of Terrorism (Temporary Provisions) Act 1976 (R.Ex. CC); Northern Ireland (Emergency Provisions) Act 1978 (R.Ex. DD); see also Report of the Commission to consider procedures to deal with terrorist activities in Northern Ireland (the "Diplock Report") (R.Ex. AA); Suppression of Terrorism Act 1978 (P.Ex. 15), including the creation of special Diplock Courts to try political offenders, and transformed the Catholic areas of Belfast and Londonderry into zones of military occupation.

Were the Court persuaded that all that need be shown to sustain the political offense exception is that there be a political conflict and that the offense be committed during the course of and in furtherance of that struggle, the respondent would clearly be entitled to the benefits of that exception. However, that conclusion is but the beginning and not the end of the analysis that must be made to determine whether in fact Doherty may be properly extradited.

While it is true that some of the older English cases, see, e.g., In re Meunier 1894 2 Q.B. 415, 419; In re Castioni 1891 1 Q.B. 149, 156, 159, 166, and some of the American cases that have relied upon them, see, e.g., In re Mackin, supra, 80 Cr.Misc. 1 at 24-25; In re Gonzalez, 217 F.Supp. 717, 720-21 (S.D.N.Y.1963); In re Ezeta, 62 F. 972, 999 (N.D.Cal.1894), have assumed that that is all that need be shown, such an approach is hardly consistent with either the realities of the modern world, or the need to interpret the political offense exception in the light of the lessons of recent history. Nor is it reflective of the more recent English precedents which have, relying upon that experience, adopted a more restrictive view of that exception, see, e.g., Regina v. Governor of Pentonville Prison, Ex parte Cheng 1973 W.L.R. 746, 753; Regina v. Governor of Brixton Prison, Ex parte Schtraks 1964 A.C. 556, 591-92, a view shared by at least one American court. See Eain v. Wilkes, 641 F.2d 504, 518-21 (7th Cir.1981), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981). But see Karadzole v. Artukovic, 247 F.2d 198, 204-05 (9th Cir. 1957), aff'g, Artukovic v. Boyle, 140 F.Supp. 245 (S.D.Calif.1956), vacated, 355 U.S. 393, 78 S.Ct. 381, 2 L.Ed.2d 356 (1958); Quinn v. Robinson, No. C-82-6688 RPA, slip op. at 22-23, 29-32 (N.D.Cal. Oct. 3, 1983), appeal pending, 83-2455 (9th Cir. Oct. 14, 1983); In re McMullen, Magistrate No. 3-78-1099 MG, slip op. at 3 (N.D.Cal. May 11, 1979).

How then is the political exception doctrine to be construed and what factors should limit its scope? Not every act committed for a political purpose or during a political disturbance may or should properly...