Officials investigated if Ellis extradition void if ‘Republic of Ireland’ used

Irish officials investigated whether an extradition order issued by the UK for Desmond “Dessie” Ellis was valid if the warrant used the term “Republic of Ireland” rather than “Ireland”.

Confidential documents released this year also indicate that Gardai had been told not to arrest one fugitive if found as the warrant had used “Republic of Ireland”.

A request was made by the Attorney General’s office in January 1990 to examine the UK’s use of “Ireland” as the name of the State, based on direction given by the Supreme Court on aspects of the Ellis extradition case.

The Supreme Court declined to uphold Ellis’ claim that his right to challenge the validity of the warrants was hampered by his inability to access the information upon which the warrants were based.

Mr Ellis, who is now a Sinn Fein TD, was serving a prison sentence in Portlaoise Prison at the time of the extradition request.

The warrants were issued in relation to the possession of explosives with intent to endanger life, and conspiracy to case explosions likely to endanger life, in the jurisdiction of England and Wales between January 1981 and October 1983, according to documents from the National Archives.

A document marked “confidential” stated that the Ellis extradition case was due to come before the District Court on January 8 1990, and could mark the first case of a request for extradition to Britain since the Guildford Four.

It stated that “the terms of the judgements on the issue of the name of the State would certainly suggest a possibility that the District Court will refuse Ellis’s extradition on this ground alone”.

The confidential briefing note outlines comments from Supreme Court judge Brian Walsh, who emphasised the obligation on the district court in Ireland to protect the constitutional rights of those before it.

The judge’s comments are quoted as: “The present case could provide a possible illustration of what could arise… it is difficult to see what, if any, justification can exist in justice for adding (a conspiracy charge) to the substantive offence if charged. To adopt it as a policy, is to say the least, very dubious”.

In relation to the name of the State, the judge remarked: “If the courts of other countries seeking the assistance of the courts of this country are unwilling to give this State its constitutionally correct and internationally recognised name then, in my view, the warrants should be returned to such countries until they are rectified.”

The document notes that Gardai had been advised “not to proceed with the arrest of one fugitive if found because the term Republic of Ireland appears in the warrant(s)”.

It also added that Ireland’s attorney general’s office had been in touch with their counterparts in London “to indicate that the use of Republic of Ireland will not be acceptable in warrants and that the ‘Checklist’ will have to be amended to make this explicit”.

Ireland’s Attorney General office suggested referring to a relevant Irish city or county instead.

The Chief Justice at the time Thomas Finlay agreed that “it is undesirable that the name of the State should be incorrectly set out in warrants”, but said that no argument was presented on this issue before the court and questioned whether it was “good grounds for refusing extradition”.

Mr Justice Niall McCarthy said the courts in Ireland “should refuse to sanction any further such refusal to recognise Article 4 of the Constitution”.

A legal adviser replied on January 9 that “two formats” of an agreement are used, and stated that both sides “appear to be satisfied” with the name of the other State as long as the document “which binds them is in the correct designation” according to domestic requirements.

“In fact, to avoid difficulties in bringing the aforementioned agreement into force in each jurisdiction, the notifications have been worded to avoid the use of the names of the two States.”

It also stated that legal requests from the UK are normally addressed to the courts of the “Republic of Ireland”, and have “always been acted on without difficulty”.

A briefing note from the Anglo-Irish Section stated that UK law is “clearly wrong” in saying that Irish law names the State the “Republic of Ireland”, and rather, the law says the state’s name is ‘Eire’ or ‘Ireland’, and the description of the State is “the Republic of Ireland”.

The conclusion drawn is that it is “clear that the British ‘name’ the State, in the domestic and bi-lateral contexts, as the Republic of Ireland in the knowledge that we do not regard it is the name of the State”.

But it added that if Ireland were to “press the use of Ireland they may accept to do so provided that we (call) them by the name their law specifies, ie, the United Kingdom of Great Britain and Northern Ireland”.

The observation was also made that Ireland’s “own practice in this regard to the name of the State has not been wholly consistent”, and points out that Republic of Ireland is sometimes used to distinguish the state from Northern Ireland.

In November 1990, Mr Ellis became the first person extradited from Ireland to the UK under the 1987 Extradition Act.

He had gone on hunger strike in the days prior to his extradition to protest efforts to send him to Britain.

Mr Ellis was acquitted at a trial in London the following year.

The material can be viewed in the National Archives in file 2021/53/29