[1985]
1 I.R.	550	
The State (at the Prosecution of Robert Trimbole otherwise known as Michael Hanbury) v. The Governor of Mountjoy Prison
[1984 No. 659 SS]
High Court	5th February 1985 
	
Supreme Court	26th March 1985 
	
Constitution - Personal rights - Liberty - Deliberate violation - Invasion by persons on behalf ofthe Executive - Planned results of such invasion - Inherent jurisdiction - Abuse of process -Scheme of courts within Constitution.Practice and procedure - Appeal to Supreme Court - Stay on order of High Court - Power ofappellate court - Constitution - Liberty - High Court order releasing from detention -Exercise of appellate powers in conflict with Constitution.Criminal law - Arrest - Suspicion - Arrest without proper suspicion - Detention - Illegal arrestand detention - Legality of subsequent extradition proceedings - Extradition Act, 1965 (PartII) (No. 19) Order, 1984, (S.I. No. 271) - Extradition Act, 1965 (No. 17) - Constitution ofIreland, 1937, Article 40.
 At 2.00 p.m. on October 25th, 1984, the prosecutor was arrested in purported pursuance of s. 30 of the Offences Against the State Act, 1939. Early next afternoon the detention period was extended by another twenty-four hours. At about the same time (1.15 p.m.) the Government made an order applying Part II of the Extradition Act, 1965, in relation to the Commonwealth of Australia as and from that date. That same afternoon the prosecutor applied to the High Court to have the legality of his detention ascertained, which hearing was fixed for 7.00 p.m. that evening. At 6.00 p.m. a provisional warrant pursuant to s. 27 of the Extradition

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
	551
H.C.	
 Act, 1965, was issued by District Justice Ballagh. At the High Court hearing Egan J. found that no genuine suspicion that the prosecutor had committed a firearms offence could have been formed by the arresting Garda; that the arrest and detention were illegal and accordingly ordered the prosecutor's release. A short while later, at approximately 10.00 p.m. outside the immediate precincts of the Four Courts the prosecutor was arrested on foot of the provisional warrant just issued by District Justice Ballagh. He was then brought to the District Court and remanded in custody.
 On November 2nd, 1984, a habeas corpus application challenging the remand orders was refused by Egan J.
 On November 8th the Minister for Justice addressed an order to District Justice Kotsonouris pursuant to s. 26 of the Extradition Act, 1965, signifying that he had received from the Commonwealth of Australia a request for the extradition of the prosecutor. Application was then made on November 17th to District Justice Kotsonouris for orders committing the prosecutor to prison, there to await the order for his extradition or until the High Court or Supreme Court should order his release.
 On November 4th the prosecutor applied to the High Court pursuant to Article 40 of the Constitution for an inquiry as to the legality of his detention, at the end of which hearing it was
Held by Egan J., that the object of the arrest, pursuant to s. 30 of the Offences Against the State Act, 1939, of the prosecutor was to ensure that he would be available for the provisional warrant arrest; that such arrest amounted to a deliberate and conscious violation of constitutional rights; that there were no extraordinary excusing circumstances; that his detention in subsequent proceedings was tainted by the illegality of his original arrest and accordingly the prosecutor was to be immediately released.
 The respondent then applied to the Supreme Court for a stay on the order of the High Court pending appeal.
Held by the Supreme Court (Finlay C.J., Walsh, Henchy, Hederman and McCarthy JJ.) that whatever powers the court may have to make its ordinary appellate jurisdiction effective, such powers would not be exercised in a manner inconsistent with the Constitution.
 On appeal by the respondent from the order of the High Court it was
Held by the Supreme Court (Finlay C.J., Henchy, Griffin, Hederman and McCarthy JJ.) in dismissing the appeal and affirming the judgment of Egan J., 1, the courts have not only an inherent jurisdiction but a positive duty (a) to protect persons against the invasion of their constitutional rights; (b) if invasion has occurred, to restore as far as possible the person so damaged to the position in which he would have been if his rights had not been invaded; and (c) to ensure as far as possible that persons acting on behalf of the executive who consciously and deliberately violate the constitutional rights of citizens do not for themselves or their superiors obtain the planned results of that invasion.
 Principles in  The State (Quinn) v. Ryan  [1965] I.R. 70 ;  The People (Attorney General) v.O'Brien  [1965] I.R. 142  and  The People v. Lynch  [1982] I.R. 64  affirmed.
 2. The well recognised jurisdiction of the courts at common law to prevent an abuse of their own process is amplified and reinforced by the position of the courts within the framework of the Constitution and a direct duty arises to prevent such abuse of their process.
 R. v. Bow Street Magistrates, ex p. Mackeson  (1981)  75 Cr. App. R. 24  considered.
 Cases mentioned in this report:—
In re Nielsen  [1984] A.C. 606; [1984] 2 W.L.R. 737; [1984] 2 All E.R. 81.
The State (Furlong) v. Kelly  [1971] I.R. 132.
Wyatt v. McLoughlin  [1974] I.R. 378.
Wilson v. Sheehan  [1979] I.R. 423.
R. v. Brailsford  [1905] 2 K.B. 730.
Cahill v. Sutton  [1980] I.R. 269.
The State (McFadden) v. Governor of Mountjoy Prison  [1984] I.L.R.M. 113.

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
	552
H.C.	

The People (A.G.) v. O'Brien  [1965] I.R. 142.
The People v. Madden  [1977] I.R. 336; (1976) 111 I.L.T.R. 117.
The People v. Lynch  [1982] I.R. 64; [1981] I.L.R.M. 389.
D.P.P. v. Joyce  [1985] I.L.R.M. 206.
The State (Quinn) v. Ryan  [1965] I.R. 70; (1964) 100 I.L.T.R. 105.
Application of Woods  [1970] I.R. 154.
The State (Browne) v. Feran  [1967] I.R. 147.
In re Singer (No. 2)  (1964) 98 I.L.T.R. 112.
Egan v. Macready  [1921] 1 I.R. 265; (1921) 55 I.L.T.R. 197.
The State (McDonagh) v. Frawley  [1978] I.R. 131.
Application of Zwann  [1981] I.R. 395; [1981] I.L.R.M. 379.
The State (Rogers) v. Galvin  [1983] I.R. 249; [1983] I.L.R.M. 149.
In re  Ó Laighléis   [1960] I.R. 93; (1957) 95 I.L.T.R. 92.
The People v. Kehoe  [1985] I.R. 444.
R. v. Bow Street Magistrates, ex parte Mackeson  (1981) 75 Cr. App. R. 24.
The People v. McCann, Pringle and O'Shea  (1984) 2 Frewen 57.
R. v. Hartley  [1978] 2 N.Z.L.R. 199.
Terry v. Ohio  (1968) 392 U.S. 1.
Re Brian Francis  (1963) 97 I.L.T.R. 160.
Robert Trimbole v. Commonwealth of Australia  (1984) 155 C.L.R. 186.
Stone v. State of California  (1964) 376 U.S. 483.
The People v. O'Loughlin  [1979] I.R. 85; (1978) 113 I.L.T.R. 109.
The People v. Walsh  [1980] I.R. 294.
The People v. Farrell  [1978] I.R. 13.
The People v. Shaw  [1982] I.R. 1.

Habeas Corpus Proceedings.
 The facts are as appear in the judgments of Egan J. and Finlay C.J.
 Article 40, s. 4 of the Constitution of Ireland, 1937, provides:—
 "1 No citizen shall be deprived of his personal liberty save in accordance with law.
 2 Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	553
H.C.	
 Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.
 3 Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it.
 4 The High Court before which the body of a person alleged to be unlawfully detained is to be produced in pursuance of an order in that behalf made under this section shall, if the President of the High Court or, if he is not available, the senior judge of that Court who is available so directs in respect of any particular case, consist of three judges and shall, in every other case, consist of one judge only."
 The matter was heard by Egan J. on the 4th November and 8th December, 1984.
S. MacBride S.C. , P. MacEntee S.C.  and Clive Nicholls Q.C.  of the Bar of England and Wales (with them J.G. Danaher ) for the prosecutor.
T.K. Liston S.C. , E.F. Comyn S.C.  (with them Susan Denham ) for the respondent.
Cur. adv. vult.

Egan J.
	5th February 1985 

 I consider the following sequence of events to be relevant:—
 1. Some short time after 2 p.m. on the 25th October, 1984, the prosecutor was arrested by Detetive Inspector Cormac Gordon in purported

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	554
H.C.	
 pursuance of s. 30 of the Offences Against the State Act, 1939. In the early afternoon of the 26th October, 1984, he was informed by Inspector Gordon that a Garda officer not below the rank of Chief Superintendent had ordered his further detention for an additional period of twenty-four hours in purported exercise of powers under the said section.
 2. At approximately 3 p.m. on the 26th October, 1984, an application was made to me on behalf of the prosecutor in the name of Michael Hanbury (under which name he had at all relevant previous times been referred to) and I directed that an enquiry should be held at 7 p.m. that same evening as to the legality of his detention. This enquiry was duly held and it concluded at approximately 10 p.m. During the course of the enquiry evidence was given by Inspector Gordon that, based on information which he had received from Inspector McGroarty (who also gave evidence), he had formed a suspicion prior to the arrest that the prosecutor had been in possession of a firearm and ammunition at the Gresham Hotel between 4-6 p.m. on the 24th October, 1984. I was satisfied after hearing the evidence that no genuine suspicion could have been formed by the Gardaí in relation to possession by the prosecutor of any firearm or ammunition and I found as a fact that the evidence as to the genuineness of the suspicion was most unconvincing. I accordingly found that the detention of the prosecutor was illegal and I made an order for his release.
 3. A short while later outside the immediate precincts of the Four Courts, the prosecutor was arrested on foot of a provisional warrant issued pursuant to the provisions of s. 27 of the Extradition Act, 1965, which described the prosecutor as "Robert Trimbole alias Robert Trimboli and Michael Pius Hanbury." This arrest took place shortly after 10 p.m. on the 26th October, 1984. The provisional warrant bore the same date and had been issued by District Justice Ballagh at approximately 6 p.m. on that date.
 4. Whilst not in strict sequence, two further events took place which were argued to be of significance in the present matter:—
 (a) The Government on the 26th October, 1984, made an order that Part II of the Extradition Act, 1965, would apply in relation to the Commonwealth of Australia as and from the said date. The court was informed that this order was signed at 1.15 p.m. on the 26th October, 1984, and the time given was not disputed. The validity of the order was challenged in this matter and will be dealt with later. The order is entitled "Extradition Act, 1965 (Part II) (No. 19) Order, 1984" and was published in Iris Oifigiúil on the 30th October, 1984.
 (b) On the same date as the date of the making of the Government order hereinbefore referred to i.e., on the 26th October, 1984, the Governor General of Australia made regulations entitled"Extradition (Republic of Ireland) Regulations" which provided that

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1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	555
H.C.	

 "The Act applies to the Republic of Ireland subject to the limitations, conditions, exceptions and qualifications specified in regulation 4." The Act referred to is the Extradition (Foreign States) Act, 1966.
 5. Following on his arrest on foot of the provisional warrant on the 26th October, 1984, the prosecutor was brought to the District Court and was remanded in custody. Further orders of remands in custody were made from time to time in the District Court.
 6. On the 2nd November, 1984, an application was made to me on behalf of the prosecutor for an order of habeas corpus ad subjiciendum on specific grounds, namely that the remand orders were deficient in that they only amounted to recitals and did not constitute actual orders. They were compared to a deed without a habendum. I did not accept the argument as being valid and refused to make an order for the release of the applicant.
 7. On the 8th November, 1984, the Minister for Justice after reciting therein the Government order of the 26th October, 1984, and that a request had been received by him on the said 8th November, 1984, from Australia, communicated by its Ambassador, for the extradition of Robert Trimbole, made an order in the following terms:—
 "Now I, Michael Noonan, Minister for Justice, by this Order hereby signify to you, Mary Kotsonouris, a Justice of the District Court, that the aforesaid request has been duly made by the Commonwealth of Australia and received by me in accordance with Part II of the Extradition Act 1965."
 This order of "signification" was made under s. 26 of the Act and was a vital step in procuring the ultimate surrender to Australia of the prosecutor. He could not have been detained on foot of the provisional warrant for a period longer than eighteen days. The validity of this order is challenged.
 8. Application was made on the 17th November, 1984, to District Justice Mary Kotsonouris in the Dublin Metropolitan District Court for orders committing the prosecutor to prison there to wait the order of the Minister for his extradition. A hearing took place but was adjourned to the 21st November, 1984, when it was resumed before the same District Justice, this time sitting at Dundrum courthouse. On that date the learned District Justice made orders committing the prosecutor to be detained in Mountjoy Prison until the Minister should otherwise order in accordance with Part II of the Act of 1965 or until the High Court or Supreme Court should order his release. These committal orders refer to sixteen Australian warrants. Eighteen warrants in all were before her but it appears to have been conceded by the State that two of them did not disclose offences which, if they had been committed in Ireland, would have constituted crimes which would attract a maximum sentence of not less than twelve months. The committal orders made are exhibited by photostat copies thereof annexed to

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	556
H.C.	
 the certificate of the Governor of Mountjoy Prison dated the 18th December, 1984. They are numbered "A1" to "A15" (inclusive) and "A18".("A1" is out of sequence and appears at the end).
 I shall attempt to deal with the arguments made in the case under separate headings even though this may occasionally result in an over-lap.
A. The order of the Government dated 26th October, 1984
 It was suggested in the opening arguments that the Government in being "satisfied" of the matters mentioned in the order was exercising powers of a judicial nature which it would not be entitled to do under the Constitution. This argument was not pursued and, in my opinion, rightfully so.
 The order was made under s. 8 of the Act of 1965 which provides in sub-s. 1 that:—
 "Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Government are satisfied that reciprocal facilities to that effect will be afforded by another country, the Government may by Order apply this Part in relation to that country."
 It is to be noted that the order does not refer to any international agreement or convention and the expressed specific ground is stated to be the Government's satisfaction that reciprocal facilities would be afforded by the Commonwealth of Australia. It was argued that the order was ultra vires in that true reciprocity as required by the section would not result.
 Various dictionary meanings of the word "reciprocal" were mentioned but, in my view, they did not supply an answer to the problem. The main argument as to the absence of reciprocity lies in the fact that Part II of the Act when thus applied does not contain any requirement in this country ofprima facie evidence such as would justify the trial of the person sought to be extradited. The position under the relevant Australian statute differs in this regard. Under s. 17, sub-s. 6 (b) of the Extradition (Foreign States) Act, 1966, there must inter alia be produced to the Magistrate "such evidence as would, in the opinion of the Magistrate, justify the trial of the person if the act or omission constituting that crime had taken place in, or within the jurisdiction of, that State or Territory."
 It is argued that "reciprocal" must mean "identical" in scope and substance but the Act does not say so. An evidence requirement might well be considered desirable in all extradition applications but this does not solve

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	557
H.C.	
 the problem. The respondent argues, in effect, that "reciprocity" in its context means no more than "mutuality" and that there is no requirement that procedures or provisions should be completely identical.
 I was asked to look at a telex report of a judgment of the High Court in Australia in a case where the prosecutor Robert Trimbole, sought an injunction to restrain the Australian authorities from proceeding further with the request for his extradition on many grounds which are not relevant to the issues in this case. His application was dismissed. The "requirement of evidence" distinction was raised but it was pointed out that s. 10, sub-s. 4 of the Australian Act of 1966 did not require that the Governor General should be satisfied that the law of the foreign State provides a reciprocity which corresponds in every detail with the Australian law. It recognised that the law of the foreign State might impose limitations, conditions, exceptions or qualifications which are not necessarily the same as those of Australian law.
 It is now incumbent on me to decide the matter and I have come to the conclusion that reciprocity does not require identity. The constitutional validity of this order will be dealt with under another heading.
B. The order of the Minister dated 8th November, 1984
 This order was made under s. 26 of the Extradition Act, 1965, which provides in sub-s. 1 that:—
 "If the Minister receives a request made in accordance with this Part for the extradition of any person he shall, subject to the provisions of this section, by Order signify to a Justice of the District Court that the request has been made and the Justice shall issue a warrant for the arrest of that person."
 It is perfectly clear that the Minister would not be entitled to make such an order without having received a request for extradition supported by the documents set forth in s. 25 of the Act. The requirements of s. 25 will be dealt with later in the course of this judgment. Hence the over-lap to which I have referred earlier.
 It has been argued that this order is a bland signification which does not describe any offences and does not define the scope or limits of any inquiry to be conducted by the District Justice. It is correctly stated that there is no express provision for the transmission to the District Justice of the documents required by s. 25 to support a request for extradition. But these arguments do not bring about a fatality to the order. The offences must be described in the s. 25 documents and no final surrender could lawfully be achieved unless the District Justice applied his or her mind as to the adequacy of the s. 25 documents when dealing with an application for committal under s. 29 of the Act. It is, in any event, common case that the

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	558
H.C.	
 relevant documents (whether adequate or not) were in fact, transmitted to District Justice Mary Kotsonouris and were scrutinised by her.
 It was also argued that the Minister was the person who would have to be satisfied that the documents transmitted to him with the request for extradition complied with the requirements of s. 25 of the Act and also involved him in the necessity of forming a judgment that the offences referred to in the documents were "extraditable offences" within the meaning of s. 10 of the Act. If this were the position it could be said that he would be exercising judicial powers which are not properly the function of the executive power of the State.
 It is perfectly true that the section authorises and entitles the Minister to look at the documents by virtue of s. 26, sub-s. 3 and form an opinion. He is also entitled under s. 26, sub-s. 4 to form an opinion that the case is one in which extradition is prohibited. An analogy could perhaps be drawn regarding the position of the Director of Public Prosecutions with regard to crimes in general. He can and should consider all information before him in arriving at a decision whether or not to institute a prosecution.
 The Act does not require the Minister to be "satisfied" and this is in stark contrast to the specific requirement in s. 29 of the Act that the District Justice must be satisfied of the matters therein referred to before a committal order can be made.
 The arguments advanced on behalf of the prosecutor under this heading are accordingly rejected by this court.
C. Dual Criminality
 It might be thought that arguments challenging the validity of certain provisions in Part II of the Act having regard to the Constitution should be dealt with in priority to the matters with which I now propose to deal. My reason for the sequence adopted is that some of the matters to be dealt with now are relevant to some of the arguments under the Constitution.
 Section 10, sub-s. 1 of the Extradition Act, 1965, provides as follows:—
 "Subject to subsection (2), extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty and for which, if there has been a conviction and a sentence in the requesting country, imprisonment for a period of at least four months or a more severe penalty has been imposed."
 Sub-section 2 of the section might have authorised the District Justice to make committal orders in respect of the two warrants which she excluded but I do not consider it necessary to deal with this matter. Section 10, sub-s. 3 provides that "In this section references to an offence punishable under

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	559
H.C.	
 the laws of the State shall be construed as including references to an act which, if it had been committed in the State, would constitute such an offence."
 It should be pointed out that the scheme of extradition under Part II of the Act differs from the scheme under Part III which applies to contiguous jurisdictions. Under Part III a warrant issued by a judicial authority in the requesting jurisdiction is endorsed by the Commissioner (or Deputy Assistant Commissioner) of the Garda Síochána for execution by any member of the Garda Síochána in any part of the State. No actual proof of foreign law is required. Under Part II, however, foreign law must be proved and in the present case it was sought to be proved by the affidavit of Peter John Welch, a Senior Legal Officer in Australia with high qualifications. It was argued that Mr. Welch's affidavit should not have been received in evidence in the District Court as the State had failed to make him available for cross-examination. It was conceded, however, that the request on behalf of the prosecutor that Mr. Welch should be available for cross-examination was made at a time so close to the hearing as to make it quite impracticable to procure his attendance. His superior, Mr. Wolfring, was actually present at the hearing and was cross-examined. I am satisfied that there was no serious insistence on the request for the availability of Mr. Welch and that there was no denial of legal or natural justice in this regard.
 Part II also differs from Part III in that there are different punishment requirements in relation to the test of extraditability but these differences need not be dealt with here. There are also other differences not relevant to the issues in this case but attention must be drawn to the provision in Part III that the District Court shall not make a delivery order under s. 47 of the Act if it appears to the court that the offence specified in the warrant does not "correspond" with any offence under the law of the State. This is in contrast to s. 10 which provides that extradition shall be granted only in respect of an offence which "is" punishable under the laws of the requesting country and the State. My own view is that the distinction is of little, if any, significance.
 The court was addressed at some length on the degree of control vested in the Minister under Part II of the Act and there is no doubt but that his powers are considerable. It is his order under s. 26 which launches the proceedings before the District Justice or he may simply decide to make no order. He may cancel provisional warrants. Even when committal orders are made by the District Justice under s. 29 there is no absolute duty on the Minister to direct that the committed person be surrendered to the requesting country. Other examples of his powers were illustrated. It must again be emphasised, however, that the District Justice is not the "rubber stamp" of the Minister. No ultimate surrender is ever possible under Part II without there being a hearing under s. 29 as a result of which the District Justice is"satisfied" of the matters referred to in the section.

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	560
H.C.	

 It was argued that the order of the Minister under s. 26 and the order of the District Justice under s. 29 should specify the precise offences of which the "wanted" person would have been guilty if the foreign offence alleged to have been committed by him had been committed in this country. The authority cited in support of this proposition was a decision of the House of Lords in  In re Nielsen  [1984] A.C. 606. The relevant passage from the judgment of Lord Diplock is at p. 87 where he states:—
 "Under the principal treaty, the documents accompanying the requisition for the surrender of a fugitive criminal in an accusation case will state the 'acts' on account of which the fugitive is demanded by the Danish Government. It is for the Secretary of State to make up his mind what crimes those acts would have amounted to according to the English law in force at the time they were committed if they had been committed in England. In the instant case, this meant identifying the offences which those acts would have amounted to under the relevant criminal statute in force in England at the relevant date (viz. in the instant case the Theft Act 1968) had they been done by Nielsen in England. This was what the Secretary of State did in the Orders to proceed, to which I have previously referred."
 This was a decision under the Extradition Act, 1870, and Lord Diplock was obviously influenced to some extent by the forms authorised by the Act. At an earlier part of p. 87 he states:—
 "Important too are the forms set out in Schedule 2 to the 1870 Act the use of which, or of forms as near thereto as circumstances admit, is authorised by section 20 of the Act. The form of Order to proceed issued by the Secretary of State to the police magistrate pursuant to section 7 contains a space in which the Secretary of State specifies the crime (which, ex hypothesi, for the list so requires, must be described in terms of a crime according to the laws of England) as being the crime for which the magistrate is required to issue his warrant for the apprehension of the fugitive criminal under section 8." He proceeds to refer to other relevant forms.
 The Act of 1965 does not contain any schedule of extraditable crimes nor does it contain any schedule of forms. There are no specific provisions requiring that the order of the Minister under s. 26 or the order of District Justice under s. 29 should specify the precise offences of which the person named would have been guilty if the alleged acts had been committed in Ireland. It might perhaps be desirable that there should be such provisions but I cannot read them into the Act when they are not there.
 I take the view, therefore, that it is sufficient if the alleged acts, in fact, would constitute offences under the laws of Ireland within the ambit of s. 10

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	561
H.C.	
 if they had been committed here. The parties seemed to accept that the Statements of Offence as required by s. 25 (b) of the Act should describe the conduct of the fugitive complained of in the requesting State. It is not sufficient that the Statements of Offence should recite the offence as defined by the law of the requesting State where the words are used or capable of being used in a legal connotation in that State. The court may not supplement or interpret words used to define a crime in the foreign law by reference to the legal provisions in that State. Foreign law cannot be proved by putting the law or part of the law of that State before the court without the statement of an expert witness to evaluate or interpret it. I accept the argument that the Statements of Offence should tell us what the fugitive did in ordinary language so that one could say "If he did that here, it would be punishable under the laws of this State."
 I now come to deal with the Statements of Offence relied upon in this case. They are contained in exhibit "C" of the affidavit of Peter John Welch. His competence to speak on matters of Australian law is not questioned and I am fully satisfied that the relevant criminality of each alleged offence had been proved. In this context I mean criminality under the laws of Australia. In order, however, to establish the relevant criminality under the laws of Ireland the Particulars of Offence therein contained must be examined. It is unfortunate that the pagination and enumeration of the offences does not correspond with the warrants but I find no difference of the slightest significance between the wording in the Particulars of Offence and the wording of the warrants. Furthermore, the orders of the District Justice refer to the warrants and are marked with the same letters and numbers. For convenience, therefore, I will refer to the warrants when dealing with this aspect of the case.
 I am satisfied that the decisions under Part III of the Act of 1965 are relevant to the task in hand.  The State (Furlong) v. Kelly  [1971] I.R. 132 is a case where the English warrant specified that the prosecutor did "steal" a machine contrary to s. 9 of the Theft Act, 1968, (a statute which did not apply in Ireland).  Ó Dálaigh  C.J. embarked on an analysis of the text of the English law and came to the conclusion that "stealing" within the meaning of the Theft Act, 1968, would not necessarily correspond with larceny in Ireland. Walsh J. did not enter into any examination of the Theft Act in England (and subsequent decisions of the Supreme Court confirm that he was correct in not doing so). He found, however, that the material set out in the warrant was insufficient notwithstanding the presence of the word"steal". He stated at p. 144 that "the word cannot be divorced from the reference to section 9 of the English Act of 1968. If it were sought to show that this corresponded, for example, to simple larceny under our law, then either the Statement of Offence in the warrant or the accompanying appropriate evidence should inform the District Justice that the prosecutor

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	562
H.C.	
 is accused of taking an object without the consent of the owner fraudulently and without a claim of right made in good faith and carrying away the object in question with the intention of permanently depriving the owner of that object." The majority of the Court held that the correspondence had not been established.
 Probably as a result of the words of Walsh J. there came into vogue what became known as the "dressed-up warrant". The words used in the warrant in  Wyatt v. McLoughlin  [1974] I.R. 378 were clearly drafted to follow verbatim what the learned judge had said in  Furlong's Case  [1971] I.R. 132 that it should contain. At p. 398 of  Wyatt's Case  Walsh J. stated as follows:—
 ". . . it is necessary that either the warrant or some other document accompanying it should set out sufficient information as to these acts to enable the courts of the State to identify the corresponding offence, if any, in our law. It cannot be sufficient simply to use the name by which the crime is known, or alleged to be known, in the requesting country even though that same name may be used in this country as the name of a crime, because the acts complained of, although having identical names, may constitute quite different criminal offences in different countries or, indeed, no offence at all in one of them. For example, what constitutes embezzlement in one country may be larceny in another, and acts which would constitute the offence of abortion or unlawful homosexual behaviour in one country may not constitute any offence in the other."
 In  Wilson v. Sheehan  [1979] I.R. 423 the Supreme Court held (in reference to Part III of the Act) that the requirement for extradition is satisfied when correspondence is shown between the specified offence andany offence which either is an indictable offence or is punishable on summary conviction with a maximum term of at least six months' imprisonment. At p. 429 Henchy J. stated as follows:—
 "When it comes to the words in the warrant by which the factual content of the specified offence is identified, the correct rule is that those words should prima facie be given their ordinary or popular meaning unless they are used in a context which suggests that they have a special signification."
 The particular warrant alleged that the plaintiff "on the 14th day of February, 1974, did rob Michael Barker of £281 in cash and immediately before doing so used force, to wit, personal violence, on the said Michael Barker." In a separate entry in a separate part of the warrant, the offence was said to be contrary to s. 8 of the Theft Act, 1968. The Court considered that the words "rob" and "force" and "personal violence" had ordinary or colloquial meanings.

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	563
H.C.	

 I consider  Wilson v. Sheehan  [1979] I.R. 432 to be sufficient authority to have entitled the District Justice to be satisfied that the particulars in warrants "A9" to "A15" (inclusive) and "A18" were adequate. They allege that he "did murder" the persons named or that he "did conspire to murder" the persons named.
 I consider the particulars in warrant "A1" to be hopelessly inadequate. The conduct alleged is that "Robert Trimbole did conspire with Morris John Caplan and divers other persons to commit offences against a law of the Commonwealth namely offences of forgery contrary to Section 67 of the Crimes Act 1914." Apart from other possible objections with which I need not deal, the particulars do not tell us in ordinary language (or indeed in any language) what he is supposed to have done. So far from being a "dressed-up warrant" this one is practically naked.
 Warrant "A2" appears to me to be perfectly adequate and not vitiated by the inclusion of the words "prohibited imports to which Section 233B of the Customs Act 1901 applied." It is a charge of conspiring to import into Australia narcotic goods consisting of heroin. It has been conceded that the court in this context is entitled to consider the criminality of conspiring to import narcotics consisting of heroin into Ireland. The importation of heroin is clearly an offence (s. 21, sub-s. 2 of the Misuse of Drugs Act, 1977, and Misuse of Drugs Regulations 1979, S.I. No. 32 of 1979 (article 4, para. 1 (c) and schedule 2). The fact that the charge is one of conspiracy does not affect its relevant criminality.
 Warrant "A6" is similarly (if not identically) adequate (article 4, para. 1 (b) of the 1979 Regulations). Warrants "A4" and "A5" are more difficult to assess. The conduct alleged in each is that Robert Trimbole was "knowingly concerned" in the importation into Australia of narcotic goods consisting of a quantity of heroin. Under s. 21, sub-s. 1 of the Misuse of Drugs Act, 1977, a person who "aids, abets, counsels or procures" the commission of an offence under the Act is guilty of an offence. The text of the foreign law (see exhibit "C" p. 18) is that any person who "aids, abets, counsels or procures, or is in any way knowingly concerned in the importation etc." shall be guilty of an offence. This means that the words "knowingly concerned" provide an alternative criminality in Australia not specifically specified in the Irish Act. This leads me to the conclusion that people speaking the same language as we speak in Ireland take the view that the words "knowingly concerned"would not be understood to be included in the meaning of aiding, abetting, counselling or procuring. I agree with their view and as the only words used in the particulars of offence are "knowingly concerned" I must hold that warrants "A4" and "A5" are inadequate.
 The remaining warrants are "A7" and "A8", which allege that Robert Trimbole did conspire with others "to procure by the making of false and misleading representations the issue of certain Australian Passports." I am

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	564
H.C.	
 satisfied that this means a conspiracy to produce a public mischief:  R. v.Brailsford  [1905] 2 K.B. 730; even though it was argued that it is not an offence in Irish law to procure by false representations the issue of an"Australian Passport". In my view, it is an offence and the particulars are adequate.
 In the end result, I hold that the learned District Justice was correct in being satisfied that adequate particulars were disclosed by warrants "A2","A6", "A7", "A8", "A9", "A10", "A11", "A12", "A13", "A14", "A15"and "A18".
D. Constitutional challenge to the validity of Part II of the Act
 I mean no disrespect to counsel who addressed the court on this aspect of the case when I say that most of the arguments consisted of criticisms of the Act and did not disclose basic reasons for a finding of repugnancy. Most of the arguments were unsupported by authority. I was strongly tempted by Mr. Liston's suggestion that the arguments did not require any answer and, this being a 1965 statute, the presumption of constitutionality was sufficient answer to the arguments advanced. I take the view, however, that I should deal specifically with some of the arguments which were more fully developed.
 I have already held that the Government order dated 26th October, 1984, was intra vires but its validity is also challenged having regard to Article 29, s. 5, sub-s. 2 of the Constitution which provides that "the State shall not be bound by any international agreement involving a charge on public funds unless the terms of the agreement have been approved by Dáil Éireann ." I am not satisfied that there was an "international agreement".Section 8, sub-s. 1 of the Act provides that the Government may by order apply Part II in relation to another country. The application may be effected in either of two ways: (i) where an "international agreement or convention"has been made or (ii) where the Government are satisfied that "reciprocal facilities" will be afforded by the other country. The order is clearly expressed to have been made as a result of the Government's satisfaction that "reciprocal facilities" would be afforded by the Commonwealth of Australia and not on the basis of any "international agreement or convention."Even if there was an international agreement I am not satisfied that it involves a "charge" on public funds. The mere fact that expense has been or will be incurred does not necessarily constitute a "charge".
 It was also argued that the order was made specifically for the purpose of leading to the extradition of the prosecutor but, even if this be so, it is not proof of inequality or discrimination as the application of Part II affects all persons who are "wanted" in Australia for extraditable offences.
 I will not deal specifically with any other challenges. Apart from their

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	565
H.C.	
 inherent frailty many of them ought not to have been advanced at all having regard to the decision of the Supreme Court in  Cahill v. Sutton  [1980] I.R. 269. All arguments under this heading are accordingly rejected.
E. The detention of the prosecutor
 It need hardly be emphasised that in considering the legality of the detention of the prosecutor his guilt or innocence in respect of the charges against him is totally irrelevant. The offences for which he is wanted in Australia could hardly be more serious but the same legal principles would be applicable to an Irish citizen who was wanted in Australia for an offence of simple larceny. The fact that he may be a citizen of Australia does not deprive the prosecutor of his right to basic fairness of procedures:  The State (McFadden) v. Governor of Mountjoy Prison  [1984] I.L.R.M. 113. In  The People (A.G.) v. O'Brien  [1965] I.R. 142 it was held that where evidence has been obtained by the State as a result of a deliberate and conscious violation of a constitutional right it should be excluded save where there are"extraordinary excusing circumstances" which may warrant its admission. The same principle was also emphasised by the Court of Criminal Appeal in The People v. Madden  [1977] I.R. 336. The same principle was again repeated by the Supreme Court in  The People v. Lynch  [1982] I.R. 64 wherein O'Higgins C.J. stated at p. 79 that "once the Constitution had been violated for the purpose of securing a confession, the fruits of that violation must be excluded from evidence on that ground alone." In  D.P.P. v. Joyce [1985] I.L.R.M. 206 Hederman J. in delivering the unanimous judgment of the Supreme Court stated that once the evidence on which the Gardaí relied for the purpose of arresting the accused was improperly obtained it "tainted with illegality everything that the Gardaí did thereafter including arresting the accused."
 In my view the principle is not solely confined to the admission of evidence in a criminal case. Courts have no higher duty to perform than that involving the protection of constitutional rights and if at any time the protection of these rights should delay, or even defeat the ends of justice in the particular case, it is better for the public good that this should happen rather than that constitutional rights should be nullified. In  The State (Quinn) v. Ryan  [1965] I.R. 70  Ó Dálaigh  C.J. stated at p. 122 that "it was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that those rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them and that the Courts' powers in this regard are as ample as the defence of the Constitution requires."

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Egan J.	566
H.C.	

 I have already held that the original arrest of the prosecutor on the 25th October, 1984, under s. 30 of the Offences Against the State Act, 1939, was made without there being any genuine suspicion that he had committed the alleged scheduled offence. Part II of the Extradition Act, 1965, did not apply to Australia until, at the earliest, 1.15 p.m. on the 26th October, 1984. The provisional warrant of arrest in pursuance of s. 27 of the Act issued at approximately 6 p.m. on the 26th October, 1984. It is exhibit "B" in the affidavit of the prosecutor and it will be noted at the end that there is in manuscript a direction by Superintendent Herlihy in the following terms:"To Detective Inspector Cormac Gordon for legal execution." At the subsequent hearing before me that night Detective Inspector Gordon swore on oath that at no time from the time of arresting the prosecutor on the 25th October, 1984, under the name Michael Hanbury up to the time of giving evidence before me between the hours of 7.00 p.m. - 10.00 p.m. on the 26th October, 1984, did he believe the prosecutor to be any person other than Michael Hanbury. I did not accept his evidence.
 It might be possible to theorise in this matter but the only rational explanation for the s. 30 arrest on the 25th October, 1984, was to ensure that the prosecutor would be available for arrest and detention when Part II of the Act of 1965 would apply to the Commonwealth of Australia. There was a gross misuse of s. 30 which amounted to a conscious and deliberate violation of constitutional rights. There were no extraordinary excusing circumstances.
 It was suggested that even if there was such a violation, no "fruits" (to use the words of O'Higgins C.J. in  The People v. Lynch  [1982] I.R. 64) resulted therefrom. Reliance in this regard was placed on paragraph 5 of the affidavit of the prosecutor, in which he stated that "On the 25th October 1984 I set off with my daughter and friend to drive in a hired car to Westport in the County of Mayo where I intended to stay." It was argued that he would, therefore, have been available for arrest on the 26th October, 1984, or thereafter, even if he had not been in unlawful detention from the 25th October, 1984. It would be idle speculation for me to make any such assumption.
 It was further argued that in the application before me on the 2nd November, 1984, I had declared his detention to be lawful but the only arguments made to me on that date were to the effect that certain remand orders were deficient in that they only amounted to recitals. This problem was dealt with, however, in  Application of Woods  [1970] I.R. 154 where Walsh J. stated at p. 167 as follows:—
 "In my view it was never contemplated by the Constitution that the dismissal of such an application for habeas corpus precluded for all time any further application being made in respect of the same detention of the same person. Information might subsequently

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.	567
S.C.	
 come to light which would be sufficient to satisfy any court of the illegality of the detention. Even if it were the fact that such information could have been obtained at the time of the original application, in my opinion it would not alter the situation. It would be quite impossible and unreal for any court hearing such an application to extend the enquiries, which it must make upon such an application, to every conceivable matter which might possibly arise although not then raised by any person or, indeed, occurring to any person."
 Persuasive English and other authorities were cited but I need not refer to them save to say that they establish that the relevant courts should exercise their discretion in favour of a person who may have been adversely affected by a gross abuse of legal process.
 The present detention of the prosecutor is tainted by the illegality of his original arrest. It is the ultimate result of a conscious and deliberate violation of constitutional rights and is, accordingly, unlawful. I must, therefore, order his immediate release.
 [Application for a stay on the order was refused by Egan J. Upon immediate appeal from the refusal the Supreme Court granted a stay until decision upon hearing next day. (The prosecutor was at the time in intensive care at the Meath Hospital, Dublin.)]
T.K. Liston S.C.  (with him E.F. Comyn S.C.  and Susan Denham ) for the respondent appealing the refusal of the High Court to stay its order.
P. MacEntee S.C.  (with him S. MacBride S.C.  and Clive Nicholls Q.C. and J.G. Danaher ) for the prosecutor.
 The Court then retired briefly to consider its judgment.

Finlay C.J.
	6th February 1985 

 I am satisfied that the provisions of Article 40 which set out the procedure for an inquiry of this kind and which provide that unless the High Court is clearly satisfied that the prosecutor is being legally detained, it must order his immediate release, that this procedure was complied with by Egan J. As a result Trimbole was in law released from custody. Whilst it is persuasive to say that any ordinary appellate jurisdiction includes any powers to make it effective, so to constitute that power to order a stay in this case would be inconsistent with the Constitution. I am satisfied from the report of  The State (Browne) v. Feran  [1967] I.R. 147 that the power of this Court to make an order for re-arrest clearly must be confined to a time when this Court has decided that the High Court decision is incorrect. There is no question of this Court ordering rearrest to allow the Court to decide an issue.

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Walsh J.; Henchy J.; Hederman J.; McCarthy J.; Finlay C.J.	568
S.C.	

Walsh J.
 I agree.

Henchy J.
 I agree.

Hederman J.
 I agree.

McCarthy J.
 I agree.

 The respondent appealed on the merits. The appeal was heard by the Supreme Court on the 15th February, 1985.
T.K. Liston S.C.  and E.F. Comyn S.C.  (with them Susan Denham ) for the respondent referred to  The State (McFadden) v. Governor of Mountjoy Prison ;  The People (A.G.) v. O'Brien ;  The People v. Madden ;  The Peoplev. Lynch ;  D.P.P. v. Joyce ;  Re  Ó Laighléis  ;  In re Singer (No. 2) ;  R. v. Bow Street Magistrates, ex parte Mackeson ; and  The State (Quinn) v. Ryan .
S. MacBride S.C.  and P. MacEntee S.C.  (with them J.G. Danaher ) for the prosecutor Trimbole referred to  The People v. McCann, Pringle and O'Shea ;  D.P.P. v. Joyce ;  The People (A.G.) v. O'Brien ;  The State (McFadden)v. Governor of Mountjoy Prison ;  The People v. Madden  and  R. v.Hartley .
Cur. adv. vult.

Finlay C.J.
	26th March 1985 

 This is an appeal brought by the respondent, the Governor of Mountjoy Prison, against an order made by Egan J. in the High Court on the 5th February, 1985, pursuant to an enquiry held by him under Article 40, s. 4, sub-s. 2 of the Constitution, directing that the prosecutor, Robert Trimbole, should be forthwith released from detention.
The Facts
 The material facts which are not in dispute may thus be summarised.
 1. The prosecutor, who is not a citizen, and has not got a permanent place of residence in Ireland, was at approximately 2 p.m. on the 25th

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.	569
S.C.	
 October, 1984, arrested on the outskirts of Dublin by Detective Inspector Cormac Gordon in purported pursuance of s. 30 of the Offences Against the State Act, 1939, and brought into detention in the Bridewell Garda Station, Dublin. He was there detained and shortly after noon on the 26th October, 1984, was served with an order made by a Chief Superintendent of the Garda Síochána extending the period of his detention for a further twenty-four hours.
 2. At approximately 3 p.m. on the 26th October an application was made on behalf of the prosecutor to Egan J. for an enquiry as to the legality of his detention and the prosecutor was brought before Egan J. at 7 p.m. on the same date and an enquiry then was had as to the legality of his detention.
 The judge having heard evidence and submissions rejected the evidence of Inspector Gordon which was to the effect that he had formed a suspicion prior to the arrest that the prosecutor had been in possession of a firearm and ammunition on the 24th October, 1984, and held that no genuine suspicion could have been formed by the Gardaí in relation to the possession by the prosecutor of any firearm or ammunition. He accordingly decided that the detention of the prosecutor was illegal and made an order for his immediate release. The prosecutor was then released from custody in the Four Courts.
 3. At approximately 1.15 p.m. on the 26th October the Government made an order, pursuant to Part II of the Extradition Act, 1965, applying that part of the Act to the Commonwealth of Australia as and from the date of the making of that order. Prior to the making of that order no extradition treaty existed between the Commonwealth of Australia and the State nor was Part II of the Act of 1965 applicable to the Commonwealth of Australia.
 4. At 6 p.m. on the 26th October, 1984, District Justice Ballagh issued a provisional warrant, pursuant to s. 27 of the Act of 1965, authorising the arrest and detention of the prosecutor on a number of charges relating to offences alleged to have been committed in the Commonwealth of Australia. Such a warrant can not, of course, be issued unless and until Part II of the Act of 1965 applies to the country requesting the surrender of the person named therein.
 The prosecutor was arrested by Detective Inspector Gordon pursuant to that warrant immediately after his discharge and release by Egan J. outside the precincts of the Four Courts. Subsequent to that arrest he was brought before the District Court and remanded in custody from time to time.
 5. On the 2nd November, 1984, application was made for an enquiry as to the legality of his detention before Egan J., the grounds of illegality asserted being deficiency in the form of orders of remand in custody which had been made from time to time between the 26th October and the 2nd

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.	570
S.C.	
 November by the District Court pursuant to the provisional warrant. After enquiry Egan J. rejected the submissions of illegality on these grounds.
 6. On the 4th November, 1984, this application was made to Egan J. pursuant to Article 40 of the Constitution for an enquiry as to the legality of the detention of the prosecutor and an order was then made in accordance with the Article directing the respondent, the Governor of Mountjoy Prison, to produce the body of the prosecutor before the High Court on Tuesday, 11th December, 1984, or on a later date to be agreed between the parties and to certify in writing the grounds of his detention.
 7. On the 8th November, 1984, the Minister for Justice made an order of signification to the District Court, pursuant to the provisions of s. 26 of the Act of 1965, of the request duly made by the Commonwealth of Australia and received by him in accordance with Part II of the Act of 1965.
 8. Application was made on the 17th November, 1984, to the District Court for orders committing the prosecutor to prison, there to await the order of the Minister for his extradition. After a number of adjournments and hearings orders were made by the District Court on the 21st November, 1984, committing the prosecutor to be detained in Mountjoy Prison until the Minister should otherwise order, in accordance with Part II of the 1965 Act, or until the High Court or Supreme Court should order his release. These orders referred to sixteen Australian warrants.
 9. The return to the order by the High Court on the 4th November, 1984, was in fact made on the 18th December, 1984, and this application was then at hearing for a considerable number of days before Egan J. He reserved judgment and gave judgment in the case on the 5th February, 1985, directing the release of the prosecutor.
 10. For reasons associated with his physical health the prosecutor was not in court at the time of the making of the order by Egan J. and was not, therefore, immediately released. Application was then made on behalf of the respondent for a stay on the order of release but this Court ruled that having regard to the express obligation imposed by Article 40, s. 4, sub-s. 2 upon the High Court, unless satisfied as to the legality of the detention of a person seeking an enquiry under that Article to order his release, that it would be inconsistent with the Constitution for this Court to exercise any right to stay such an order and, therefore, refused the application and the prosecutor was then released from custody.
The issues on this appeal
 The respondent did not appeal against the order made by Egan J. on the 26th October, 1984, nor against his conclusion on the hearing of that enquiry that there was no genuine suspicion which would justify the purported arrest of the prosecutor under s. 30 of the Offences Against the

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.	571
S.C.	
 State Act, 1939. In the course of the hearing of this application before the High Court the prosecutor advanced a number of grounds arising from the provisions of the Act of 1965 challenging the validity of the warrants issued and the orders made by the District Court under that Act. All these submissions were rejected by the learned trial judge and against that rejection no cross-appeal has been entered to this Court by the prosecutor. The grounds on which the learned trial judge ordered the release of the prosecutor were that the illegality of the original arrest of the prosecutor which purported to be under s. 30 of the Offences Against the State Act, 1939, had tainted the entire of the subsequent proceedings before the District Court and he must, therefore, in his discretion release the prosecutor. It is against that finding and that decision that this appeal has been brought.
 Apart from legal submissions as to the consequences of the illegality of the original arrest the respondent relies in particular on paragraph 5 of the affidavit of the prosecutor in which it is stated:—
 "On the 25th October 1984 I set off with my daughter and friend to drive in a hired car to Westport in the County of Mayo where I intended to stay. On the outskirts of Dublin all three of us were arrested by Inspector Cormac Gordon of An Garda Síochána in purported exercise of his powers under section 30 of the Offences Against the State Act 1939. We were conveyed by Garda car to the Bridewell Garda Station."
The law
 In the course of his judgment on this application the learned trial judge held that the purported arrest of the prosecutor on the 25th October, 1984, was a conscious and deliberate violation of his constitutional rights and there has been no appeal against that finding. The consequence of and the attitude of the courts to a conscious and deliberate violation of constitutional rights has been laid down in a number of cases. In  The State (Quinn) v. Ryan [1965] I.R. 70, which was concerned with the detention and deportation of a person in such a manner as to prevent him having access to the court for the purpose of initiating an enquiry as to the legality of his detention under Article 40 of the Constitution,  Ó Dálaigh  C.J. in a judgment with which the other members of this Court agreed, at p. 122, stated as follows:—
 "It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.	572
S.C.	
 circumvent them, and that the Courts' powers in this regard are as ample as the defence of the Constitution requires. Anyone who sets himself such a course is guilty of contempt of the Courts and is punishable accordingly."
 In  The People (Attorney General) v. O'Brien  [1965] I.R. 142 this Court was dealing with a case in which, through inadvertence, though not, on the findings, through any conscious or deliberate act, an unlawful search of the defendant's dwellinghouse was made. In the course of his judgment, at p. 170, Walsh J. stated as follows:—
 "The vindication and the protection of constitutional rights is a fundamental matter for all Courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen. The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence. The Courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist, such as the imminent destruction of vital evidence or the need to rescue a victim in peril."
 The violation of constitutional rights and its consequence arose again in The People v. Madden  [1977] I.R. 336 where the facts were that the accused Madden was in the course of making what the court of trial held to be a voluntary statement when the maximum period of his detention, which had commenced lawfully as an arrested person under s. 30 of the Act of 1939, expired, but he was not then released but rather permitted to conclude the statement. Delivering the judgment of the Court of Criminal Appeal, O'Higgins C.J. at p. 347 stated as follows:—
 "The court of trial appears to have sought an element of wilfulness or mala fides in the conduct of the Garda officer and not finding such to have concluded that the deprivation of constitutional rights was not deliberate and conscious. In the view of the Court, to adopt that approach is to misunderstand the decision in O'Brien's Case  and, accordingly, to err in law. What was done or permitted by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interests of the due investigation of the crime. However, it was done or permitted without regard to the right to liberty guaranteed to this defendant

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.	573
S.C.	
 by Article 40 of the Constitution and to the State's obligation under that Article to defend and vindicate that right. This lack of regard for and failure to vindicate the defendant's constitutional right to liberty may not have induced or brought about the making of this statement but it was the dominating circumstance surrounding its making. In the view of this Court this fact cannot be ignored."
 The decision of the Court of Criminal Appeal then was that the statement must be excluded and by reason of its exclusion the conviction of the accused, Madden, was set aside. In  The People v. Lynch  [1982] I.R. 64 this question arose again in this Court in respect of the admission of an incriminating statement made by the accused. In the course of his judgment O'Higgins C.J. quoted with approval the statement of Warren C.J. in the case of  Terry v. Ohio  (1968) 392 U.S. 1 where, at p. 13 of the report he said:—
 'Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions."
 I am satisfied that from these decisions certain general principles can be deduced. They are:—
 The Courts have not only an inherent jurisdiction but a positive duty: (i) to protect persons against the invasion of their constitutional rights; (ii) if invasion has occurred, to restore as far as possible the person so damaged to the position in which he would be if his rights had not been invaded; and (iii) to ensure as far as possible that persons acting on behalf of the Executive who consciously and deliberately violate the constitutional right of citizens do not for themselves or their superiors obtain the planned results of that invasion.
 Notwithstanding the fact, therefore, that of the four cases to which I have referred, three are concerned with the admissibility of evidence in criminal trials and the fourth was concerned with the punishment of persons acting in breach of the Constitution where neither protection nor reparation to the party injured was practical, I am satisfied that this principle of our law is of wider application than merely to either the question of the admissibility of evidence or to the question of the punishment of persons for contempt of court by unconstitutional action.
 This jurisdiction and direct duty arising from the Constitution and the position of the courts created by it is in some ways similar to, though more ample and dominant than, what I am satisfied was an inherent jurisdiction recognised by the common law in courts to prevent an abuse of their own processes.
 In the case of  R. v. Bow Street Magistrates, ex parte Mackeson  (1981) 75

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.	574
S.C.	
 Cr. App. R. 24, the question of this inherent jurisdiction arose on an application for an order of prohibition to prevent the trial of the applicant on certain charges in the Bow Street Magistrates' Court. The facts of that case shortly summarised were that the applicant, who was a British citizen, was in the year 1979 wanted by the Metropolitan Police in respect of certain charges of fraud. He was at that time resident in Rhodesia which in the eyes of the law of England was then in rebellion and, accordingly, previously existing statutory arrangements for extradition were no longer effective between the two countries. It was found as a fact that the English police upon that occurring entered into arrangements whereby the Rhodesian authorities would deport the applicant to England, not for the purposes for which the deportation laws of Rhodesia provided, namely, that he was an undesirable resident, but really for the purpose of securing an illegal form of extradition so as to make him amenable to the courts of England. The process thus initiated in fact was not completed until after the restoration, in the eyes of English law, of the Rhodesian state and after pre-existing statutory arrangements for extradition had again become effective. Upon arrival in England in the custody of Rhodesian police officers he was immediately arrested on the three charges of fraud on which he was originally wanted and brought before a magistrates' court. These charges were eventually dropped but sixteen further charges of fraud were preferred against him and it was the trial of those charges which the applicant sought to prohibit. The decision of the Court of Appeal, consisting of Lord Lane C.J. and Davies J. was that whilst undoubtedly the magistrates' court had jurisdiction to hear and determine the charges which had properly been laid against the applicant, the court had an inherent jurisdiction to prevent an abuse of its own process and that since the applicant had only been present in England and capable of being charged before the magistrates by reason of an illegal action in which the English police had co-operated, the court should exercise its discretion and prohibit the trial of the applicant on the charges notwithstanding the fact that they were charges properly brought before the magistrates' court which had jurisdiction to hear them.
 In the course of his judgment Lord Lane C.J. quoted with approval from the decision of the New Zealand Court of Appeal in  R. v. Hartley [1978] 2 N.Z.L.R. 199. In this case a man wanted for murder and associated crimes in New Zealand had before being arrested left for Australia. He was after a short time arrested by the Australian police with the connivance and at the request of the New Zealand police and transferred by plane to New Zealand where he was on arrival immediately arrested and charged with the murder. There existed a straightforward extradition arrangement between Australia and New Zealand which was ignored and not availed of. It was there decided that on the authorities the court of trial which tried the accused and found him guilty had clear jurisdiction to do so but the Court of

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.	575
S.C.	
 Appeal held that there was an inherent jurisdiction in the courts to exercise a discretion by reason of the illegality of the method of his being made available in New Zealand for arrest and charge, to direct the discharge of the accused. In particular Lord Lane quoted from the decision of Woodhouse J. where he states at p. 217:—
 "We have said that if the issue in the present case is to be considered merely in terms of jurisdiction then Bennett, being in New Zealand, could certainly be brought to trial and dealt with by the courts of this country. But we are equally satisfied that the means which were adopted to make that trial possible are so much at variance with the statute, and so much in conflict with one of the most important principles of the rule of law, that if application had been made at the trial on this ground, after the facts had been established by the evidence on the voir dire, the Judge would probably have been justified in exercising his discretion under section 347 (3) or under the inherent jurisdiction to direct that the accused be discharged."
 The Court of Appeal in fact set aside the conviction of the accused on the grounds of the inadmissibility of statements taken from him by oppressive methods after his return to New Zealand, but as is commented by Lord Lane C.J., it is plain what would have happened if the issue of discretion had been the only issue before the Court.
 Having regard to the discretion thus arising at common law and the duty of the court to intervene in appropriate cases under our Constitution it is necessary to look at the position of the prosecutor in this case. On the evidence in the High Court he is not a person who is suspected of or wanted for any offence against the law of this country. The section under which his original purported arrest took place is part of a code intended to protect the State against its enemies and those seeking to overthrow it by unlawful means. Not only did the prosecutor not come within that category of persons but the only right which the State would have had to interfere with his liberty would be under the Extradition Act, 1965, at the request of another country with which the State had reciprocal extradition arrangements. His purported arrest under s. 30 at the time at which it took place when no such arrangements existed was therefore not only a conscious and deliberate violation of his constitutional rights but a flagrant misuse of s. 30 of the Offences Against the State Act, 1939.
 It is clear that not every unlawful arrest, even though it may be classified as conscious and deliberate, gives to a person so arrested, after his necessary release from illegal detention, any immunity from the proper enforcement of due processes of law or makes him unamenable to answer to criminal offences in our courts.
 It is equally clear that a person wanted for extradition in this country as

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.	576
S.C.	
 the result of a valid request for extradition under lawful treaty or reciprocal arrangements could not by reason only of the fact that he was subjected in the first instance to an unlawful arrest gain any long-term or permanent immunity from extradition.
 The finding of the learned trial judge in this case, however, is of quite a different situation and is, in effect, a finding, that the unlawful arrest was part and parcel of a planned operation prompted by delay in bringing into operation the reciprocal extradition agreements, and therefore the application of the Act of 1965 as between Australia and Ireland. Dealing with this matter Egan J. stated as follows:—
 "It might be possible to theorise in this matter but the only rational explanation for the s. 30 arrest on the 25th October, 1984, was to ensure that the prosecutor would be available for arrest and detention when Part II of the Act of 1965 would apply to the Commonwealth of Australia. There was a gross misuse of s. 30 which amounted to a conscious and deliberate violation of his constitutional rights. There were no extraordinary excusing circumstances.
 It was suggested that even if there was such a violation, no 'fruits' (to use the words of O'Higgins C.J. in  The People v. Lynch [1982] I.R. 64) resulted therefrom. Reliance in this regard was placed on paragraph 5 of the affidavit of the prosecutor, in which he stated that 'on the 25th October 1984 I set off with my daughter and friend to drive in a hired car to Westport in the County of Mayo where I intended to stay.' It was argued that he would, therefore, have been available for arrest on the 26th October, 1984, or thereafter, even if he had not been in unlawful detention from the 25th October, 1984. It would be idle speculation for me to make any such assumption."
 The findings of fact here made by the learned trial judge and the inferences he drew from them are, in my view, well established. On the evidence before him he was entitled to find that the unlawful s. 30 arrest was a precaution purposely put in operation so as to try and avoid the possibility that the prosecutor would leave the jurisdiction or otherwise become unavailable for arrest before the application of Part II of the Act of 1965 to Australia and the issue of a provisional warrant under section 27. Looked at simply and directly, it was a plan which exactly achieved its purpose. At the time when the provisional warrant under s. 27 did issue, namely, at 6 p.m. on the 26th October, 1984, the prosecutor was still in detention and those charged with the duty of executing the warrant knew that either he would still be in such detention at the end of that day by reason of the refusal of his application under Article 40 of the Constitution or that he would be discharged from detention in the Four Courts as a result of a successful

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.	577
S.C.	
 application under Article 40 and would be immediately available for the execution of the warrant in an identifiable and predictable place in the centre of the city of Dublin.
 I would reject the submission that the averment contained in the affidavit of the prosecutor, that it was his intention at 2 p.m. on the previous day to travel to and remain in the West of Ireland, is inconsistent with the link found by the learned trial judge between the unlawful arrest and the facile execution of the warrant under s. 27 of the Act of 1965. One must infer from the evidence and from the findings of the learned trial judge that the Garda authorities were apprehensive that between lunchtime on the 25th October and the time when a warrant would be available on the following day, whether by reason of hearing of the moves which were being made in Australia to try to secure the extradition of the prosecutor to that country, or for any other reason, the prosecutor would change what he stated to be his intention and would depart out of the jurisdiction or become unavailable for arrest. Notwithstanding his statement of his intention at that time it seems to me that that possibility still existed and the onus being on the respondent Governor of the Prison to justify the legality of the detention of the prosecutor, the learned trial judge was correct in his findings of fact and in the inferences which he drew from them and that this is a case in which the planned result of the conscious and deliberate violation of the prosecutor's constitutional rights was his arrest under the warrant issued under s. 27 of the Act of 1965 from which flowed all further lawful orders of detention.
 In reaching this conclusion I have considered and rejected the submission made on behalf of the respondent that the illegality of the arrest made under s. 30 on the 25th October, 1984, was merged in or superseded by a series of valid and legal orders for the detention of the prosecutor, made by the District Court when he was brought before them having been arrested on what itself was a valid and legal warrant issued under s. 27 of the Act of 1965.
 If the challenge to the legality of the prosecutor's detention had been based on a want of jurisdiction in the District Court, or if the successful challenge to the original arrest had been one of form creating an illegality but not constituting either a conscious and deliberate violation of his constitutional rights or the abuse of a process of the court, then in those instances, undoubtedly, on the authority of the decisions in  Re Brian Francis (1963) 97 I.L.T.R. 160 and in  Re Singer (No. 2)  (1964) 98 I.L.T.R. 112 the orders of the District Court, having been made within jurisdiction, would justify the detention of the prosecutor irrespective of the method by which he had been brought before that court. I have no doubt, however, that different considerations apply to a challenge arising from the discretion at common law to prevent abuse of the processes of the court and the duty

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
Finlay C.J.; Henchy J.; Griffin J.; Hederman J.; McCarthy J.	578
S.C.	
 under the Constitution to vindicate the constitutional rights of the prosecutor.
 I, therefore, agree with the decision of Egan J. and the reasoning by which he reached it and I would dismiss this appeal.

Henchy J.
 I agree.

Griffin J.
 I agree.

Hederman J.
 I agree.

McCarthy J.
 The Governor of Mountjoy Prison appeals against an order of the High Court (Egan J.) made on the 5th day of February, 1985, following on an enquiry held under Article 40, s. 4, sub-s. 2 of the Constitution, directing the immediate release of the prosecutor.
 On the 25th October, 1984, the prosecutor, an Australian citizen, was travelling by motor car to the West of Ireland accompanied by his daughter and a lady friend, when all three were arrested in purported exercise of the powers of arrest given by s. 30 of the Offences Against the State Act, 1939. The period of detention pursuant to this arrest was subsequently extended from the initial twenty-four hours to one of forty-eight hours by the exercise of further powers granted by the section to a member of an Garda Síochána not below the rank of Chief Superintendent. The arrest took place in the early afternoon of the 25th at which time there was no extradition arrangement existing between Ireland and Australia. By 1.15 p.m., however, on the 26th October, such an arrangement had been brought into existence through the action of the Australian Government and the Irish Government, following on which provisional warrants for the arrest of the prosecutor were issued pursuant to the Extradition Act, 1965. On the evening of the 26th October Egan J. held an enquiry under Article 40, s. 4, sub-s. 2 of the Constitution and ordered the immediate release of the prosecutor. I quote from the judgment of the learned trial judge:—
 "At the subsequent hearing before me that night Detective Inspector Gordon swore on oath that at no time from the time of arresting the prosecutor on the 25th October, 1984, under the name Michael Hanbury up to the time of giving evidence before me between the hours of 7.00 p.m. - 10.00 p.m. on the 26th October, 1984, did he believe the prosecutor to be any person other than Michael Hanbury. I did not accept his evidence.

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
McCarthy J.	579
S.C.	

 It might be possible to theorise in this matter but the only rational explanation for the s. 30 arrest on the 25th October, 1984, was to ensure that the prosecutor would be available for arrest and detention when Part II of the Act of 1965 would apply to the Commonwealth of Australia. There was a gross misuse of s. 30 which amounted to a conscious and deliberate violation of his constitutional rights. There were no extraordinary excusing circumstances.
 It was suggested that even if there was such a violation, no 'fruits' (to use the words of O'Higgins C.J. in  The People v. Lynch [1982] I.R. 64) resulted therefrom. Reliance in this regard was placed on paragraph 5 of the affidavit of the prosecutor in which he stated that "On the 25th October 1984 I set off with my daughter and friend to drive in a hired car to Westport in the County of Mayo where I intended to stay." It was argued that he would, therefore, have been available for arrest on the 26th October, 1984 or thereafter, even if he had not been in unlawful detention from the 25th October, 1984. It would be idle speculation for me to make any such assumption."
 I pause in this citation to refer to the submissions made to this Court by Mr. MacEntee on behalf of the prosecutor, which I summarise as follows:— (a) The liberty of the individual includes his entitlement to change his mind. (b) The arrest under s. 30 was disposing of the risk that he (the prosecutor) would not be available - that he would change his mind; it took this area of uncertainty out of the case. (c) At the time of the arrest there was no possibility of holding the prosecutor lawfully - it was therefore a form of kidnapping to make him available to face the process that would result from the Government making the order that was made on the 26th October. (d) In short, that an order of release under Article 40, s. 4, sub-s. 2 means to set at liberty in a meaningful sense.
 To revert to the words of the learned trial judge:—
 "Persuasive English and other authorities were cited but I need not refer to them save to say that they establish that the relevant courts should exercise their discretion in favour of a person who may have been adversely affected by a gross abuse of legal process.
 The present detention of the prosecutor is tainted by the illegality of his original arrest. It is the ultimate result of a conscious and deliberate violation of constitutional rights and is accordingly unlawful. I must, therefore, order his immediate release."
 Earlier in his judgment, Egan J. had cited an extract from the judgment of  Ó Dalaigh  C.J. in  The State (Quinn) v. Ryan  [1965] I.R. 70 at 122:—

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
McCarthy J.	580
S.C.	

 "It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that those rights should be set at nought or circumvented. The intention was that the rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can with impunity set these rights at nought or circumvent them and that the Courts' powers in this regard are as ample as the defence of the Constitution requires."
 It is in point to cite the concluding sentence of that paragraph of  Ó Dalaigh  C.J.'s judgment: "anyone who sets himself such a course is guilty of contempt of the Courts and is punishable accordingly."  Quinn's Case  [1965] I.R. 70 was one where the purpose of the police plan was to eliminate the courts and to defeat the rule of law as a factor in government ( Ó Dalaigh C.J. at p. 118). No such purpose is ascribed in the instant appeal where the purpose of the police plan - as, clearly, there was a plan - was to detain the prosecutor until the necessary extradition framework had been constructed. It seems to me to follow, inexorably, that the "plan" or scheme must have involved individuals in other departments of the Executive and not just the Garda officers immediately concerned in the arrest. As far back as 1972 the Irish Government commenced negotiations with representatives of the Government of the Commonwealth of Australia to negotiate the text of an Extradition Treaty between the two countries and according to the affidavit of the Legal Adviser to the Department of Foreign Affairs these negotiations"were not and have not been either abandoned or discontinued and are continuing." The relevant regulations in Australia were "signed by the Governor General between 10.45 and 11.15 a.m. on the 26th October. That was sometime during the night of 25th October or the early morning of 26th October in Ireland." (see the judgment of High Court of Australia in Robert Trimbole v. Commonwealth of Australia  (1984) C.L.R. 186). At 1.15 p.m. on the 26th October the Government made the Extradition Act, 1965, (Part II) (No. 19) Order, 1984, which order came into operation on the same date and applied Part II of the Act of 1965 to the Commonwealth of Australia. There was, of course, no issue as to any of these events; the validity of the warrants for the arrest of the prosecutor that resulted from the making of the orders has been tested and upheld in the High Court and is not the subject of appeal. It is said, however, that, as it were, the pedigree of these warrants is defective because of what the learned trial judge termed, and in my view, correctly termed, "a gross misuse of s. 30 which amounted to a conscious and deliberate violation of his constitutional rights." The learned judge further said:—
 "It need hardly be emphasised that in considering the legality of the detention of the prosecutor his guilt or innocence in respect of the charges against him is totally irrelevant. The offences for

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
McCarthy J.	581
S.C.	
 which he is wanted in Australia could hardly be more serious but the same legal principles would be applicable to an Irish citizen who was wanted in Australia for an offence of simple larceny. The fact that he may be a citizen of Australia does not deprive the prosecutor of his right to basic fairness of procedures . . ."
 For myself, I think it is right to emphasise that guilt or innocence is irrelevant; that the fact that the charges are very grave and very numerous is equally irrelevant; what is most relevant is that the courts should defend the Constitution and the constitutional rights of every person within the jurisdiction of the courts. I refer again to  Quinn's Case  [1965] I.R. 70 and to the judgment of Davitt P. in the High Court where, at pp. 88-89, he says in reference to Article 40, s. 4, sub-s. 2 of the Constitution:—
 "If these provisions had to be considered alone and isolated from the other provisions of the Article it might reasonably be argued that they did no more than re-state some of the provisions of the common law in regard to habeas corpus. They occur, however, in an article dealing with personal rights which, in turn, is contained in a section of the Constitution which deals with fundamental rights. Paragraph 3 provides, in sub-para. 1: "The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizens." In sub-para. 2 it provides: "The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen." These guarantees are given on behalf of the State and apply to all its organs. They apply not merely to the Legislature, but also to the Executive and the Judiciary. Not merely are the appropriate laws as enacted to comply with the requirements of these guarantees, but they are, so far as their nature permits, to be interpreted by the Courts and administered and enforced by the Executive with a similar regard to the requirements of the Constitutional guarantees."
 If, then, the Executive itself abuses the process of law as in this case by the wrongful use of s. 30 of the Offences Against the State Act, 1939, and, for what it is worth, persists in that abuse by giving false evidence in the course of the constitutional enquiry, are the courts to turn aside and, apart from administering severe strictures to those concerned, appear to sanction the procedure that has been adopted to secure the extradition of an individual to the requesting State? It is not easy for anyone, particularly those outside the courts, to disassociate legal principles from the facts of any given case; it is important, therefore, to emphasise that the application of such legal principles must be the same for an Australian citizen on a temporary visit to Ireland as they would be for an Irish citizen, permanently

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
McCarthy J.	582
S.C.	
 resident in Ireland, when either of them is sought by a requesting State with which State Ireland has an extradition treaty or arrangement.
 Counsel for the respondent, the Governor of Mountjoy Prison, who detained the prosecutor until his release, whilst acknowledging the impropriety of the arrest under s. 30, seek to uphold the detention, essentially, on the basis that the arrest and order for extradition made on foot of the extradition framework were not "fruits" of the wrongful arrest - that, according to his own affidavit, the prosecutor was not intending to leave Ireland and that the case is, therefore, different from the authorities cited bearing upon the admission in evidence of the "fruits" of improper or unconstitutional conduct by the Executive through the work of the Gardaí. It is true to say that the cases cited are, largely, concerned with "fruits" in that sense but, in my view, the argument overlooks the philosophy that underlies these decisions and, indeed, the many decisions of the Federal Supreme Court of the United States cited so often in such cases as  The People (Attorney General) v. O'Brien  [1965] I.R. 142 and subsequent cases. In  O'Brien's Case  Walsh J. said at p. 168:—
 "In the United States of America the exclusionary rule, as it is called, does not appear to have been based upon a principle of"fairness" to the prisoner but for the express purpose of enforcing compliance on the part of the police with the constitutional rights of the accused person. This is clear from the many decisions of the Supreme Court of the United States and the latest expression of it is in the judgment of that Court in  Stone v. State of California (1964) 376 U.S. 483. It would also appear that at least in cases of illegal search and seizure upon premises, the rule seems to be confined to cases where the violation has been that of the constitutional rights of the defendant . . .
 In my judgment the law in this country has been that the evidence in this particular case is not rendered inadmissible so that there is no discretion to rule it out by reason only of the fact that it was obtained by means of an illegal as distinct from an unconstitutional seizure. Members of the police make illegal searches and seizures at their peril and render themselves liable to the law of tort and in many instances also to the criminal law. In my view, it would properly be within the province of a court which learns in the course of a trial that evidence proffered has been obtained as a result of an illegal search and seizure, whether on the property of the accused or any other person, knowingly and deliberately carried out by the police, to publicly draw attention to that fact and in that, though perhaps remote, way effectually to control the actions of the police. But to render the evidence inadmissible on that account only and for the purpose of controlling the police

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
McCarthy J.	583
S.C.	
 would be to prefer the latter purpose to the competing but primary one of conducting a fair trial. If a stage should be reached where this Court was compelled to come to the conclusion that the ordinary law and police disciplinary measures have failed to secure compliance by the police with the law, then it would be preferable that a rule of absolute exclusion should be formulated rather than that every trial judge, when the occasion arises, should also be asked to adjudicate upon the question of whether the public good requires the accused should go free without full trial rather than that the police should be permitted the fruits of the success of their lawless ventures. Apart from the anomalies which might be produced by the many varying ways in which that discretion could be exercised by individual judges, the lamentable state of affairs which would call for such a change in the existing law of evidence would certainly justify absolute exclusion rather than a rule which might appear to lend itself to expediency rather than to principle."
 Clearly a principle underlying the exclusion of such evidence is the deliberate violation of constitutional rights and not, as in the United States, in part at least a weapon by the courts to deter police illegalities (paceWalsh J. at p. 167 in  The People (Attorney General) v. O'Brien  [1965] I.R. 142). The exclusionary rule expressed in O'Brien was examined in detail in The People v. Madden  [1977] I.R. 336; the  People v. O'Loughlin  [1979] I.R. 85; the  People v. Walsh  [1980] I.R. 294; the  People v. Farrell  [1978] I.R. 13 and the  People v. Lynch  [1982] I.R. 64, where O'Higgins C.J. said "Once the Constitution has been violated for the purpose of securing a confession, the fruits of that violation must be excluded from evidence on that ground alone." All these cases, however, are, as I have said, instances of the exclusion of evidence, they do not, of themselves, necessarily involve the release of the person detained. In the instant appeal, a person detained was ordered to be released and was released (in order to avoid publicity at the time, at the request of his counsel, the prosecutor was brought by the Gardaí to the Bridewell Station, accompanied by his junior counsel, and the arrest under the provisional warrant was effected there). Not merely was he released but, before the release was made, indeed before judgment was given by Egan J., counsel for the Governor had publicly stated the intention of the police authorities to arrest him under the provisional warrants.
 Therefore, it is said, that the arrest and intended extradition were not fruits of the unlawful arrest under s. 30; if they were, they do not touch upon the real issue viz., whether or not the prosecutor should be returned to Australia to face the charges detailed in the warrants. As in the case of evidence obtained in breach of constitutional rights, is there a discretion to be exercised in the light of the breach of the prosecutor's constitutional right to liberty where the chain between the deprivation of liberty and the arrest

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
McCarthy J.	584
S.C.	
 under the provisional warrant cannot be demonstrated to have been cleanly broken? Or, assuming no such break, where the impropriety is, so to speak, spent by the appearance of the prosecutor in the District Court on a number of occasions on remand by order of the District Justice and no question can be raised as to the validity of the extradition procedure and proceedings themselves, is there a duty or a discretion in the court to nullify these proceedings by ordering his release, and if there is a discretion, how should it be exercised? In any sense, is there a question of degree or proportionality appropriate to the issue? This I have found to be the real question to resolve in this appeal.
The balance
 1. If a breach of constitutional rights may be excused by extraordinary circumstances ( pace The People (Attorney General) v. O'Brien  [1965] I.R. 142) a parallel argument would apply here.
 2. In  The People v. Shaw  [1982] I.R. 1 the excuse, the hope of finding the girl alive, was held an adequate excuse for the violation of a constitutional right, although, in fact, the hope was groundless.
 3. The majority judgment (that of Griffin J.) in  Shaw  [1982] I.R. 1 stated at p. 61:—
 "The crucial test is whether it was obtained in compliance with basic or fundamental fairness, and the trial judge will have a discretion to exclude it "where it appears to him that public policy, based on a balancing of public interests, requires such exclusion" - per Kingsmill Moore J. at p. 161 of the report of  O'Brien's Case .This is a fairer and more workable test than a consideration of whether the questioned statement complies with specific constitutional provisions, because most of the criminal trials in this State are held in courts (the District Court, the Circuit Court and the Special Criminal Court) which, in terms of their judicial personnel, judicial experience and vested jurisdiction, are not designed for constitutional interpretation or for the balancing of constitutional rights, or for the preferment of one invoked constitutional provision over another."
 4. It is clearly in the interests of justice, and, indeed, in the interests of concord with other nations (the Preamble) and friendly co-operation amongst nations founded on international justice and morality (s. 1, sub-s. 1, of Article 29 of the Constitution) and the generally recognised principles of international law (s. 3) that where a friendly state seeks the extradition of a person alleged to have committed a serious crime within that State then this State should co-operate in effecting that extradition. It is self-evident that if such a person refuses or is unwilling to return to the requesting State, then

[1985]
1 I.R.	The State (Trimbole) v. The Governor of Mountjoy Prison
McCarthy J.	585
S.C.	
 he is seeking to evade a trial - he is seeking to evade justice; to aid him in so doing is, on its face, contrary to public policy.
 5. Other than the President, no holder of an office under the Constitution save the members of the Judiciary is required to make a declaration to uphold the Constitution and the laws. There are analogous provisions in the Police Forces Amalgamation Act, 1925, and the Defence Act, 1954. In particular, no member of either House of the Oireachtas or of the Executive at any level is required by the Constitution itself to make such a declaration. This circumstance emphasises, if emphasis were needed, the high responsibility that lies upon the Judiciary to ensure that constitutional rights are not flouted with impunity. The release upon what may appear to have been a technical ground of an individual "wanted" on serious charges may seem, at first sight, undesirable and, indeed, contrary to public policy; it may seem highly contrary to public policy that elaborate arrangements for extradition should be set at nought by what may be termed an excess of zeal. In my judgment, however, a far greater principle is at stake: that part of the Executive represented by the Garda authorities and those others responsible for what I have termed the plan to extradite the prosecutor must not be permitted to think that conduct of this kind will at worst result in a judicial rebuke, however severe. It will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be. If the consequences are such as to enable a fugitive to escape justice then such consequences are not of the courts' creation; they stem from the police illegality.
 During the course of argument, the question was canvassed as to whether or not the prosecutor could be validly arrested and extradited upon a fresh warrant or set of warrants from Australia. Mr. MacBride, as his counsel, expressly conceded that such an arrest and extradition would be valid. That is not to say that such arrest and extradition might not be challenged; for myself, however, I would like to make it clear that the views that I have expressed are not to be taken as any indication that the prosecutor is now seven weeks after his release free from extradition from this country.
 I would dismiss this appeal.
 Solicitors for the prosecutor: Con O'Leary & Co.
 Solicitor for the respondent: The Chief State Solicitor.
Éanna  Mulloy, B.L.
[1985] I.R. 550