NI: Extradition of James Joseph Smyth (feature)
01 September 1994
Introduction
In September 1992 the United Kingdom filed a formal request for the extradition of James Smyth from the United states, where he had been living since 1984. Smyth, who had been convicted in a Diplock court in 1978 for the attempted murder of a prison officer, had escaped with 38 others from the Maze prison in 1983. His hearing began in San Francisco on 27 September 1993 and closed without the usual closing arguments on 9 November. Instead the court asked both sides to submit written briefs in support of their respective positions. These included two briefs focusing specifically on the statistical evidence.
The legal background
In 1986 the United Kingdom and the United States signed a Supplementary Treaty on extradition which eliminated the political exemption defence in the Extradition Treaty between the two countries. This had permitted a number of Republicans to argue successfully against their extradition on the grounds that their "crimes" were political. Although the supplementary Treaty abolished the political exemption under Article 3(a) it provides:
"Notwithstanding any other provision of this Supplemental Treaty, extradition shall not occur if the person sought establishes to the satisfaction of the competent judicial authority by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality, or political opinions, or that he would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions."
Last May the Court issued a ruling on the interpretation of this Article. It ruled out any examination of the fundamental fairness of the Diplock system and limited the inquiry to alleged past or future discriminatory treatment Mr Smyth has received or will receive. On receiving details of the ruling, Smyth requested discovery of information particularly concerning the British government's investigations into the alleged shoot to kill policy and collusion between the security forces. The British Government refused to produce the documents even for an in camera review. The court, in fairness to Smyth, therefore imposed the following rebuttable presumption on the hearing:
1) Catholic Irish nationals accused or found guilty of offences against members of the security forces or prison officials are subjected systematically to retaliatory harm, physical intimidation and death in Northern Ireland.
2) Members of the security forces in Northern Ireland either participate directly or tacitly endorse these actions.
This meant that the British government was forced into a position where it was required to rebut the presumption by a preponderance of evidence. However, the ultimate burden in establishing a defence under Article 3(a) by a preponderance of evidence rested with Mr Smyth. Put simply, this meant that if Smyth's and the British government's evidence was placed on a set of scales, he had to make them tip slightly in his favour.
During the hearing the British Government called on witnesses. They included John Chilcot, the Permanent Under Secretary of State for Northern Ireland; Wolf Monahan, an Assistant Chief Constable of the RUC; Allistair Irwin, a Brigadier in the British Army, John Baxter, the present Governor of the Maze Prison; Jennifer Blaney, an RUC Constable responsible for compiling statistics.
Smyth called 22 witnesses and introduced over 60 exhibits. Most of the witnesses provided evidence about specific incidents of discrimination suffered by people who are in the same group as Mr Smyth. In addition, he introduced a mass of statistical evidence to support the inference that if returned he would be punished, detained, or restricted in his personal liberty on the grounds of his race, religion, nationality, or political opinions.
The judgement
Ju