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IN RE REQUESTED EXTRADITION OF JAMES JOSEPH SMYTH

September 15, 1994

IN THE MATTER OF THE REQUESTED EXTRADITION OF JAMES JOSEPH SMYTH


The opinion of the court was delivered by: BARBARA A. CAULFIELD

 This matter comes before the court for consideration of the request for the extradition of James Joseph Smyth to the United Kingdom of Great Britain and Northern Ireland. The court denies the request to certify Mr. Smyth for extradition for the reasons set forth below.

 I. PROCEDURAL HISTORY.

 James Joseph Smyth was convicted of attempted murder and sentenced to twenty years' imprisonment in Belfast, Northern Ireland in 1978. In September 1983, 38 prisoners, including Smyth, escaped from the Maze Prison in Belfast. Smyth arrived in San Francisco, California in 1984. Since that time he has lived and worked peacefully in the community.

 One day after this court granted Smyth's request for bail, the government executed the provisional arrest warrant and requested that Smyth be detained pending extradition to Great Britain. 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 the 1978 attempted murder conviction. This court granted Smyth's request for bail under the requirement of special circumstances, a decision later reversed by the Ninth Circuit Court of Appeals

 Extradition of Mr. Smyth is sought pursuant to the Supplementary 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 ("Supplementary Treaty"). Mr. Smyth seeks to avoid extradition by raising a defense under Article 3(a) of the Supplementary Treaty: 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.

 Several months before the extradition hearing, this court ruled that Article 3(a) created an exception to the traditional rule of non-inquiry in extradition matters, permitting the person being sought the right to establish that he individually would be prejudiced as a result of discriminatory treatment within the requesting country's criminal justice system. *fn1"

 Smyth sought discovery of several documents which he contends support his claim that he would be "punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions" if surrendered. The documents Smyth sought included the Stalker-Sampson Reports, the Kelly Report, documents regarding the Stevens inquiry and a statement of information on ex-prisoners available to security forces on the streets of Northern Ireland. The Stalker-Sampson Reports documented the investigation of members of the Royal Ulster Constabulary for the shooting deaths of six people in 1982 whom the officers suspected of being members of the Provisional Irish Republican Army. 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 Kelly Report memorialized the review of Charles Kelly, the chief constable in Staffordshire, England, who was appointed in 1988 to consider whether disciplinary charges should be brought against constables who had been identified by Stalker and Sampson as having committed murder and other criminal offenses. The Stevens inquiry investigated allegations of collusion between members of the security forces and loyalist paramilitaries.

 The U.K. objected to producing the documents, claiming that they were irrelevant and were protected from disclosure by the state secrets privilege, deliberative process privilege, and investigatory files privilege.

 After a review of the description of the documents in question, the court found that the documents were relevant for discovery purposes. In light of Smyth's strong showing of need for the documents and the vagueness of the U.K.'s declarations invoking privileges from production, the court determined that an in camera review of the documents was necessary. Suggestions from the U.K. regarding the redaction of particularly sensitive information pertaining to the identity or activities of security forces personnel were invited. The U.K. responded that it would not be possible to redact the documents and declined to submit the documents for any in camera review by the court.

 The U.K.'s refusal to produce the documents led this court to grant the following rebuttable presumptions to Smyth as a remedy to balance the competing interests:

 
(1) Catholic Irish nationals accused or found guilty of offenses 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.

 The court intended the presumptions to balance the refusal to produce the relevant documents with Smyth's right to review those documents to aid his defense. The presumption granted by the court shifted the burden of production to the U.K., but Smyth retained the ultimate burden of proof in establishing his defense to extradition. The court later ruled that the presumption must be rebutted by the U.K. by a preponderance of the evidence.

 The parties to the proceedings agreed that the Federal Rules of Evidence do not apply in extradition proceedings. Fed. R. Evid. 1101(d)(3). The court received all evidence introduced. The government and Smyth introduced statistical reports. Witnesses interpreted many of the statistical reports. The court considered appointing an expert under Federal Rule of Evidence 706(a) but declined to make the appointment. The review of the statistical evidence by the court and the testimony of the witnesses interpreting the evidence demonstrates the inability to draw any logical conclusion from the statistical evidence. The statistical evidence regarding a pattern of arrests, detentions, or treatment of individuals in Northern Ireland is flawed by the lack of scientific record-keeping or collection techniques. Therefore, the court declines to rely upon statistics collected for the purpose of the Smyth case by either the U.K. or Mr. Smyth. The court instead will evaluate the evidence of witnesses testifying at trial on the issues presented to the court.

 II. FINDINGS OF FACT.

 A. Background on the Political Violence in Northern Ireland.

 1. Northern Ireland has a population of about 1,500,000. The population is approximately 62% Protestant and 38% Roman Catholic. The largest city in Northern Ireland is Belfast. Within Belfast is the Ardoyne neighborhood, a Catholic nationalist area with a population of 15,000-20,000. James Smyth is from the Ardoyne neighborhood.

 2. There are two main ideological combinations in Northern Ireland: people who wish Northern Ireland to unite with the Republic of Ireland and people who wish it to remain part of the United Kingdom. "Nationalists" are those people who desire a united political entity encompassing Northern Ireland and the Republic of Ireland. Within the nationalist combination exist the "republicans," who believe that the use of violence is a legitimate means of pursuing that goal. A subset of the republicans actually take up arms in pursuit of that goal. "Unionists" are those people who desire Northern Ireland to remain a part of the United Kingdom. Within the unionist combination exist the "loyalists," who believe that the use of violence is a legitimate means of pursuing that goal. A subset of the loyalists actually take up arms in pursuit of their goal. Nationalists are from the Catholic community and unionists are drawn from the Protestant community.

 3. Sinn Fein is a minority political party in Northern Ireland, capturing about ten percent of the popular vote. Sinn Fein's political aim is generally aligned with the republican ideology and seeks to establish a socialist republic for the Republic of Ireland and Northern Ireland.

 4. The current chapter in the civil unrest in Northern Ireland began in August 1969, when Protestant unionists attacked Catholic nationalist neighborhoods. People were shot and stoned; homes and cars were burned. The local constabulary was unable to control the situation and British Army troops arrived. Twenty-five years later, the British Army remains in Northern Ireland.

 5. On the republican side, the main paramilitary organizations are the Provisional Irish Republican Army ("IRA") and the Irish National Liberation Army. There are roughly 400 active service members (i.e., those actively involved in carrying out violent acts) in the IRA. The IRA has publicly announced that the British Army and persons who work for the Army are targets. Government sources estimate that 97% of the 1,726 bombings and two-thirds of the shootings relating to the political violence in Northern Ireland were done by republican terrorists in the 1987-1992 period.

 6. On the loyalist side, the main paramilitary organizations are the Ulster Freedom Fighters and the Ulster Volunteer Force. These organizations are closely associated with the Ulster Defense Association. Loyalist paramilitaries have typically shot their victims, although they increasingly use explosives. Loyalist paramilitary violence is directed largely against the Catholic population and generally not against the security forces.

 7. Since 1969, over 3,000 people, including more than 2,100 civilians, have been killed in the political violence in Northern Ireland. Over 35,000 people, including over 23,000 civilians, have been injured. Over 15,000 people have been charged with terrorist-type offenses. In the last few years, loyalist violence has increased dramatically; in 1992, more than half the terrorist murders were committed by loyalists.

 8. Membership in either the republican or loyalist paramilitary organizations is highly secretive. Indeed, merely being suspected of being a member can subject one to intense police attention and death from the opposing paramilitary organization. Thus, while the organizations take credit for their violent deeds, rarely will any individual publicly take credit for being in one of the organizations.

 9. The republican and loyalist paramilitary organizations make efforts to learn who their opponents are to target them for violence. When a person's "details" -- such as his name, address, workplace, patterns of movement, or picture -- are known to paramilitaries on the opposing side, the person's risk of harm increases greatly. The police force takes the danger seriously and frequently warns individuals that they are in imminent danger because their "details" are known to persons with criminal intent. At the hearing, evidence was presented of republicans being warned that their details were in the hands of loyalist paramilitaries shortly before the suspected republicans were shot or murdered. Many of these attacks took place in the victims' own homes.

 B. Government Efforts in Connection with the Political Violence.

 10. Approximately ten percent of the government expenditures in Northern Ireland is devoted to sustaining the security effort. This is approximately $ 1,400 per capita in Northern Ireland for the security effort. There are approximately 30,000 persons in the Royal Ulster Constabulary and British Army (collectively referred to as the "security forces") in Northern Ireland.

 11. The Royal Ulster Constabulary ("RUC") performs the policing function in Northern Ireland. In addition to the 8,400 full-time regular RUC members, there are 4,200 RUC Reserve members. The RUC is 93% Protestant.

 13. Some residents of the republican neighborhoods do wish a police presence to ward off attacks by loyalist terrorists. Two of the U.K.'s witnesses stated that even though residents desire a police presence, the residents may not want that presence to include tanks and soldiers carrying machine guns. Although one U.K. witness stated that automatic weapons are kept down and not pointed at people routinely, another U.K. witness stated that sometimes weapons are held level so the soldiers look alert and deter sniper fire.

 14. Certain laws are in place in Northern Ireland because the government has determined that a state of emergency exists. The Northern Ireland (Emergency Provisions) Act ("EPA") was originally enacted in 1973 and has been amended and reenacted over the years. The Prevention of Terrorism (Temporary Provisions) Act ("PTA") was originally enacted in 1974 and has been amended and reenacted over the years. The EPA applies only in Northern Ireland and the PTA applies throughout the United Kingdom. Included in the EPA and PTA are the following provisions, which give the security forces substantial powers and considerable discretion.

 a. Any member of the security forces "may stop any person for so long as is necessary" in order to question him for the purpose of ascertaining his identity and movements and what the person knows concerning any recent explosion or any other recent incident endangering life. Reasonable suspicion of criminal activity is not necessary. Failure to stop or to respond to such questioning is a crime.

 b. A British Army soldier may arrest without warrant, and detain for up to four hours, any person the soldier has reasonable grounds to suspect is committing, has committed, or is about to commit any offense.

 c. A constable may arrest without warrant any person whom the constable has reasonable grounds to suspect is committing, has committed, or is about to commit a terrorist-type offense. The arrestee may be detained for up to 48 hours after the arrest, but this detention may be extended for an additional five days, for a total of seven days.

 d. When a person is arrested and being interrogated, access to a solicitor or notification of a third party of the arrest can be delayed up to 48 hours. Sometimes, consultations with solicitors are supervised by constables. A solicitor may not sit in on the interrogation of the client.

 e. A person may be detained for up to seven days for interrogation. During the detention, prisoners are kept in solitary confinement. An RUC Deputy Inspector stated that it might be possible to make arrangements for a relative to be allowed to visit a detainee, but he had never seen it happen. There are no phone calls, no religious services, and no exercise available to the detainee. Toilet facilities are available on request. These procedures are the same for republican and loyalist detainees.

 f. Exclusion orders may be imposed against a person who is determined to be involved in terrorism. An exclusion order prohibits a person from entering one or more countries in the United Kingdom. These orders may be imposed regardless of whether the person has been convicted of a crime. There were 81 exclusion orders in place in 1992.

 g. The Secretary of State may issue a detention order if there are grounds for suspecting that a person has been concerned in the commission of terrorism or directing, organizing or training of terrorists. The internment may last for several weeks.

 6. The government censors the broadcast of voices of representatives of Sinn Fein, the IRA, and persons supporting such organizations. When a member or supporter of one of these organizations speaks on television, there is a voice-over or subtitles with no sound.

 7. The security forces have established observation towers which resemble towers over prison perimeters, to overlook republican and loyalist neighborhoods.

 8. Vehicle check points are set up around the Ardoyne neighborhood in Belfast to prevent loyalist gangs from entering and to watch for the movement of explosives into and around the area. The security forces at the vehicle check points do not randomly check vehicles; they search vehicles driven by suspected or known terrorists, vehicles coming from houses occupied or frequented by suspected terrorists, and vehicles with certain physical characteristics (such as vans and overweight vehicles). There are no official instructions to stop a person based on religious or political views or ex-prisoner status. One RUC inspector did state that the RUC intelligence is that Sinn Fein is the political wing of the IRA, and that well-known Sinn Fein members likely would be stopped by RUC constables.

 9. The threat to the security forces is greater in republican than loyalist areas. *fn2" Constables are more likely to be accompanied by British Army troops in republican areas. Typically, sixteen soldiers accompany two or three RUC constables on patrol. In recent years the routine has been one or two patrols through the Ardoyne neighborhood, with each patrol lasting 60 to 90 minutes. Persons are stopped and questioned during the patrol. Major Anthony Brown of the British Army stated that the patrols stopped suspicious people if there had been an incident and otherwise people were stopped and questioned on a "totally random basis." Major Brown ...


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