The opinion of the court was delivered by: BARBARA A. CAULFIELD
On September 14, 1992, the United Kingdom filed a formal request for the extradition of James Joseph Smyth to serve the remainder of his sentence for a 1978 conviction in Belfast, Northern Ireland.
Smyth has indicated that he will raise a defense to extradition pursuant to Article 3(a) of the Supplemental Extradition Treaty between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, which went into effect on December 23, 1986 ("Supplemental Treaty") which 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 (emphasis added).
On May 6, 1993 this court issued an order outlining the permissible scope of the extradition hearing in this matter under Article 3(a). The parties are now before the court on Smyth's Second Request for the production of documents.
Smyth's Second discovery request seeks a number of documents which he contends supports his claim that he will be "punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions" if surrendered. This court has previously outlined the scope of the permissible inquiry on this issue in its May 6th order:
Evidence that Mr. Smyth himself would be subject to restraints on his liberty upon release from the Maze, or at risk of assassination is not admissible absent a showing that the government has explicitly tolerated or has been materially involved in any plots to restrain his liberty or assassinate him. Evidence that individuals who had previously served time in the Maze were restrained in their personal liberty or assassinated upon their release will not be admissible absent some showing of a pattern of conduct involving a government entity. For example, the court would consider the introduction of such evidence upon a showing under F.R.E. 104 that individuals who had religious or political views substantially similar to Smyth, and who had been convicted of either murder or attempted murder of "security" personnel (prison guards, security forces, etc.) were disproportionately restricted in their liberty or assassinated upon their release from the Maze and that a government entity was involved in the action directly or indirectly.
Order at 9:19-10:7.
Smyth's second discovery request seeks the following documents and reports which he maintains are essential to meet his burden of proof under Article 3(a):
1. The Kincora Report: The court has already ruled that this document appeared to be irrelevant. The court has not ordered that the United Kingdom ("UK") produce this document.
2. The Stalker-Sampson Reports: The Stalker-Sampson reports arise out of the investigation of officers in the Royal Ulster Constabulary ("RUC") for the shooting deaths of six people in 1982 whom they suspected of being members of the IRA. The purpose of the inquiry was to determine whether or not criminal offenses (involving, inter alia, the giving of false or misleading evidence and conspiracy to pervert the course of justice) had been committed. The investigation was originally led by Mr. John Stalker, deputy chief constable of Manchester. Shortly after Mr. Stalker submitted an interim report in September of 1985, he was relieved of his duties and replaced by Colin Sampson, the chief constable of West Yorkshire. The UK maintains that the reports contain highly sensitive information regarding internal affairs investigations and the procedures and identity of security forces personnel.
3. The Kelly Report: In 1988, Charles Kelly, the Chief Constable of Staffordshire, was appointed to consider whether disciplinary charges should be brought against RUC officers of the rank of chief superintendent and below who had been identified by Stalker and Sampson as having committed criminal offenses, including murder. The declarations of Patrick Mayhew, the Secretary of State for Northern Ireland, filed on June 7, 1993 and June 18, 1993, do not specifically invoke a state secret or national security privilege claim with respect to this report. Instead, the Mr. Mayhew states that "the public interest here is in the maintenance of an honorable, disciplined, law-abiding and incorrupt police force." Mr. Mayhew's declarations not only fail to specify that he has read the report
, but they also fail to specify that the report contains any state or national secrets.
4. The Stevens Inquiry: In 1989 the chief constable of the RUC, in consultation with the chief constable of Cambridgeshire, appointed the deputy chief constable of Cambridgeshire, John Stevens, to carry out an investigation into allegations of collusion between members of the Security Forces and Loyalist paramilitaries. As a result of the investigation, the RUC confirmed that Security Forces personnel had disclosed to Loyalists photos of republican suspects and the names, addresses and photographs of more than 400 people from the Catholic community in Northern Ireland. With respect to the Steven's Report, Mr. Mayhew's June 7, 1993 declaration states:
So far the actual report is concerned, I am satisfied that its disclosure would be injurious on two grounds; firstly the integrity of the process of criminal investigations and the making of decisions as to prosecutions and secondly, the efficacy of the efforts of the Government of the United Kingdom to counter terrorism and the protection of persons involved in those efforts.
A summary of this report has been disclosed to Smyth; however, the court finds that the summary does not contain sufficient detail to ...