UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
August 25, 1985
UNITED STATES OF AMERICA
IN THE MATTER OF EXTRADITION OF JAMES GERARD BARR, A fugitive from the United Kingdom of Great Britain and Northern Ireland
The opinion of the court was delivered by: NEWCOMER
This case poses a question rarely addressed in the context of an international request for extradition: whether the demanding country, through the United States government, has satisfied its burden of establishing that there is probable cause to believe James Gerard Barr committed attempted murder -- the offense he is charged with in Northern Ireland.
For reasons described below, I conclude that this burden has not been met, and I will therefore deny the government's petition for extradition.
submitted a brief with attached exhibits as the total evidence in support of the request for extradition. Respondent, James Gerard Barr, does not dispute the authenticity or admissibility of any of the government's papers. Mr. Barr did not submit any evidence on his behalf, nor request an evidentiary hearing in order to do so. Thus I am not faced with any evidentiary or procedural issues and this opinion relies on all of the submitted papers.
James Gerard Barr is charged by the United Kingdom and Northern Ireland with the attempted murder of Marine Kevin Lee Harris, a British soldier.
On July 14, 1981, at or about 7:10 p.m. a British military patrol was walking down the Falls Road in Belfast, Northern Ireland, when Marine Kevin Lee Harris was hit by bullets in the upper left arm and right thigh. The patrol consisted of five British soldiers, including Marine Harris. From the statements submitted, it appears that the gunmen shooting at the patrol were firing from the corner of Sevastopol Street and the Falls Road. Apparently none of the gunmen were hit. No other British soldier suffered any injuries. Marine Harris was treated at the Musgrave Park Hospital and subsequently released in good condition. Military personnel and police who searched the area recovered spent bullets, but did not discover any of the gunmen.
Almost two years later on June 3, 1983 one Henry Kirkpatrick pleaded guilty in a Belfast court to charges relating to the Harris shooting. Mr. Kirkpatrick gave a written statement on his and others' participation in the Harris shooting on August 18, 1983. A copy of that statement is included as an exhibit to the request for extradition. This statement constitutes the sole evidence I can glean from the submitted papers that even mentions Mr. Barr. Moreover the following comprises the entire evidence of any connection between the Harris shooting and Mr. Barr:
In the meantime Jim Barr from Twinbrook who was a volunteer in the Andersontown Unit arrived in his car which was a Renault 5 green color. I told him we were going to have a go at the Brits. I also told him to scout around the top end of Clonard Street for any other foot patrols.
Mr. Kirkpatrick does not state that Mr. Barr agreed to scout around, nor that Mr. Barr drove off in any direction. None of the statements of the British soldiers mentions Mr. Barr, nor in any way even suggest he was present during the attack.
Section 3184 of Title 18 controls international extradition proceedings:
Whenever there is a treaty or convention for extradition between the United States and any foreign government, any justice or judge of the United States, or any magistrate authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.
The government has the burden of establishing four elements in order to sustain its burden in an extradition proceeding: (1) that there are criminal charges pending against Mr. Barr in Northern Ireland; (2) that the crimes with which Mr. Barr is charged are extraditable ones under the treaty between the United States and the United Kingdom and Northern Ireland; (3) that Mr. Barr is the individual actually sought by the authorities in Northern Ireland; and (4) that, based on the papers submitted by the government, there is probable cause to believe that the crime charged has been committed and that there is probable cause to believe that Mr. Barr committed the crime charged.
Mr. Barr does not contest the first three elements. The papers reflect outstanding criminal charges against Mr. Barr in Northern Ireland for the attempted murder of Marine Harris. The United States and United Kingdom of Great Britain and Northern Ireland Extradition Treaty, at Article III(1) and Schedule III(1), TIAS 8468, includes attempted murder as an extraditable offense. Third, Mr. Barr does not contest that he is the person sought.
Turning to the last element, respondent concedes that there is probable cause to believe the crime charged was committed. However, his counsel argues that the evidence is insufficient to sustain the government's burden of showing there is probable cause to believe that Mr. Barr committed the crime charged.
In extradition proceedings, probable cause is measured by the federal standard used in preliminary proceedings. See Sindona v. Grant, 619 F.2d 167 (2d Cir. 1980).
Probable cause signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.
Coleman v. Burnett, 155 U.S. App. D.C. 302, 477 F.2d 1187, 1202 (D.C. Cir. 1973). A review of the documents submitted leads me to conclude that there is no probable cause to believe Mr. Barr attempted to murder Marine Harris.
Under the law of Northern Ireland, murder is a common law offense. It is committed when "a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the King's peace, with malice aforethought, either express or implied, the death following within one year and a day." Statement of Vincent Paul Lynagh, Solicitor in Northern Ireland at 1 (quoting Sir Edward Coke: "Institutes of the Laws of England" (1952)).
The relevant common law also establishes that an attempt to commit murder is punishable.
To prove an attempt to commit an offence it is necessary to prove that some act was done by the defendant which must be immediately and directly connected with the offence . . . . "The actus reus (Act) necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of a specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime. "
Id. at 1-2 (quoting Archbold: "Pleading, Evidence and Practice in Criminal Cases," 41st Ed. (1982)).
As related above, the evidence submitted does not mention or suggest any act by Mr. Barr. All Mr. Kirkpatrick states is that he requested Mr. Barr "scout around" the area. There is no evidence of any agreement by Mr. Barr to undertake any act, and certainly not one which a reasonable person could construe as "immediately and not merely remotely connected with the commission of [a specific crime]." Respondent claims that the government's evidence amounts to charges based on "mere presence" in the vicinity. I agree with this statement. A reasonable person could not find that probable cause exists to believe Mr. Barr committed the crime of attempted murder, based on such scanty evidence.
"Probable cause means more than opportunity to commit crime or presence in a particular place. It must be more than surmise or suspicion. There must be some tangible fact or incident which will support a judicial act, something which invokes discrimination of judicial discretion. "
Reis v. United States Marshal, 192 F. Supp. 79, 82 (E.D. Pa. 1961) (quoting United States v. Johnston, 292 F. 491, 493 (D. Wash. 1923)).
I conclude that, based on the evidence presented, the government has shown only that Mr. Barr was present in the vicinity of the attack and nothing more. Thus, I am compelled to deny the government's extradition petition for lack of probable cause. Article IX(1) of the Treaty. The petition will be dismissed. An appropriate order follows.
AND NOW, this 25th day of August, 1985, in accordance with the memorandum of this date, it is hereby Ordered that the petition of the United States government seeking the extradition of James Gerard Barr to the United Kingdom and Northern Ireland is DENIED.
AND IT IS SO ORDERED.