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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Minister for Justice and Equality -v- Prieto [2016] IECA 90 (24 February 2016)
URL: http://www.bailii.org/ie/cases/IECA/2016/CA90.html
Cite as: [2016] IECA 90
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Judgment
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1. By her first order made on the 27th November 2015 pursuant to s. 16 of the European Arrest Warrant Act, 2003 as amended (“the Act of 2003”), Ms Justice Donnelly ordered the surrender of the appellant to the judicial authority in Scotland on foot of a European arrest warrant issued by it on the 5th June 2014 in respect of two of the offences set forth in the warrant, namely, broadly speaking, the offence of assault, and that of failing to appear in court as required by the terms of his bail. However, by her second order of the same date made pursuant to s. 16 (11) of the Act of 2003 she certified one point of law as being of exceptional public importance, such that it is desirable in the public interest that an appeal to this Court be brought. That point of law was certified in the following terms:-
3. The appellant was arrested and charged with a serious assault, and brought in custody before a Sheriff’s Court in Scotland firstly on the 19th March 2013, and again on the 26th April 2013. On that date it would appear that he applied for was granted bail on certain conditions which included that “[he] appears at the appointed time at every diet relating to the offence with which he is charged of which he is given due notice or at which he is required by this Act to appear”. The other conditions to which his conditional release on bail was subject are not relevant to the question certified for this appeal. The copy bail order which has been provided by the Scottish judicial authority concludes with the words: “The above conditions having been accepted, the court authorised the accused’s release”.
4. He was subsequently notified of a procedural hearing to take place on the 7th January 2014 at which his attendance was required. He failed to appear, though his legal representative was present. A warrant was issued for his arrest there being no reasonable excuse offered for his non-appearance.
5. He had failed to comply with a signing on condition also. The warrant seeks his surrender for offences which arise under Scottish law in that regard, but the trial judge found no offence in this jurisdiction which corresponded to the Scottish offence in relation to failing to sign on as required, and there is no appeal against that conclusion. The trial judge was satisfied that the offence of assault for which he is wanted to face prosecution corresponded with an offence of assault in this State, and she ordered his surrender in relation to that offence.
6. In the High Court the candidate offences for correspondence purposes in relation to the appellant’s failure to appear at the court in Scotland as required by the terms of his conditional release were the common law offence of criminal contempt of court, as well as s. 13 (1) of the Criminal Justice Act, 1984 which provides:
(b) Is it alleged that he entered into a recognisance before a court?
(c) Is it alleged that the recognisance required him to appear before court?
(d) If so, is the offence and alleging breach, failure to appear in accordance with that recognisance? I believe that the ‘recognisance’ you refer to is the accused’s agreement to comply with conditions of bail set by the court.
It is not a term used by our courts, but in short I believe the answer to your questions to be ‘yes’.
I attach a copy of the bail order issued to the accused by Edinburgh Sheriff Court on 26.04.2015[sic]. It includes conditions (a) and (b) requiring him to attend at court for every diet relating to the offence and also at St Leonard’s Police Station in Edinburgh three times a week to sign in.
His release on bail was conditional on him agreeing at court in front of a Sheriff to abide by the conditions of bail in the bail order.
Intimation of the procedural hearing that took place on 07.01.2015 was given. The accused did not attend as required but was represented at court by a solicitor when the Failure to Appear Warrant (attached) was granted …
In order for such a warrant to be granted the court must be satisfied that the accused failed to appear at court without reasonable excuse.
……… [emphasis added]. 10. Having so concluded in relation to the first candidate offence for correspondence, Donnelly J. went on to consider whether there was correspondence with the common law offence of criminal contempt of court. She concluded that it did so correspond, and that surrender was not therefore prohibited under s. 38 of the Act of 2003. 11. During the course of submissions on this issue, Counsel had referred the trial judge to the Law Reform Commission’s Consultation Paper on Contempt of Court published in July 1991, and to a section within Chapter 2: ‘Contempt in the Face of the Court’ which discussed whether non-attendance in Court constituted contempt in the face of the court. While acknowledging the difficulty conceptually in seeing a failure to appear before the court as being a contempt in the face of the court, she nevertheless was persuaded that indeed it was so, based on the decision of the Supreme Court in In Re Kelly [1984] ILRM 424. That case involved the failure by a witness under subpoena to attend court as required by that subpoena. In that case much emphasis was placed upon the need for a contempt jurisdiction in order to protect the public interest in the administration of justice and ensure that it was not obstructed. The trial judge noted the submission made by counsel for the appellant that the failure by him to attend as required at a purely procedural hearing in Scotland did not amount to an interference with the administration of justice, and therefore to a contempt of court, given that the court could have proceeded in his absence. However, the trial judge felt unable to accept that submission given that there was no evidence before her that the court in Scotland could proceed further in the absence of the accused, and that the court had actually issued a warrant, suggesting that it could not proceed in his absence. Having so stated, the trial judge concluded that she was “satisfied that the failure to appear is quite rightly said to take place in the face of the court”, and stated at paras. 60-61 of her judgment:
61. In this jurisdiction, a person who agrees to be bound by a condition of release on bail that they will turn up at every court sitting when their criminal case is listed and who does not turn up is interfering with the administration of justice. Even where the case might proceed in his or her absence, for example in the case of some summary matters, there is an interference with the administration of justice by the very fact of the failure to appear. The court before which the proceedings are listed will be obstructed in any number of ways, from perhaps being forced to put the matter back to second calling, to having to hear an application for a bench warrant or … to proceed in the person’s absence and where sentence may be imposed there is an interference with the administration of justice because the person is not present. The release on the agreement of the person to turn up in court requires that the person abide by that condition. The administration of justice in criminal matters has a default position that the person be present at those proceedings. It is an interference with the administration of justice for an act used person, having been released from custody and having agreed to turn up in court, to voluntarily absent him or herself.” Correspondence
16. In addressing that submission, the trial judge stated at para. 33:
44. This issue was fully examined by the Supreme Court in Attorney General v. Dyer [2004] IESC 1, [2004] 1 IR 40. In the course of his decision, Fennelly J. identified a number of principles set out in previous cases. These are:- 1. In considering whether correspondence has been established, the court looks to the facts alleged against the subject of their quest, as opposed to the name of the offence for which he or she is sought in the requesting state, and considers whether these facts or this conduct would amount in this State to a crime of the necessary minimum gravity;
2. In considering correspondence therefore the court is concerned not with the name of the offence in the requesting country but the criminal conduct alleged in the request or warrant, and 3. In the absence of anything suggesting that the words used in a warrant had a different meaning in the law of the requesting state, the question of correspondence was to be examined by attributing to such words the meaning they would have in Irish law.” 19. The interpretation of s. 5 of the Act of 2003 to which I have referred conforms to the purpose and objective of Article 2 of the Framework Decision which I have set forth above. The Court’s focus must be on the acts or omissions alleged to give rise to the offence in the warrant (and, if necessary, any further information provided by the issuing state), and then see if the same acts or omissions if committed in this State would give rise to an offence here - not necessarily the same offence in the issuing state, but an offence here. Article 2 of the Framework Decision is given expression in s. 5 of the Act of 2003. Article 2 makes clear that this exercise is not to be carried out by a comparison of the offence in the issuing state with the candidate offence here. There may be similarities and there may be differences between the precise offence in any number of Member States all of whom are operating under the same EU instrument. That is confirmed by the words appearing at the end of Article 2, namely “whatever the constituent elements or however it is described”. Provided what the respondent allegedly did in Scotland as disclosed in the warrant (and, if necessary, any information later provided) would, if done here give rise to an offence here (not necessarily an identical offence to that in the issuing state), then correspondence is made out. In most cases this is not a complicated or difficult task. To interpret s. 5 in this way is to do so in a way that conforms to the objectives and purpose of the Framework Decision, and is not contra legem since it does not do any violence to the words of the national provision, and is therefore not contra legem (see Pupino (Case C C-105/03) [2005] E.C.R. I-05285. Applying these principles, I will now turn to the candidate offences for correspondence, firstly the common law offence of criminal contempt, and secondly, s. 13 of the Criminal Justice Act, 1984. The Contempt of Court offence 21. Robert Barron SC for the Minister has made helpful submissions on behalf of the Minister. He submits that a failure by an accused person to turn up in court for his trial clearly impedes or obstructs the administration of justice, and therefore commits a criminal contempt. He submits that the trial judge’s conclusion in this regard is correct as set forth at para. 61 of her judgment which I have set forth above. While he cannot point to any case where an accused was prosecuted for his non-attendance in court pursuant to his bail condition, he has submitted that neither is there any authority which decides that it may not be prosecuted as a contempt of court. He submits that approaching the matter from first principles it is clear that if a person acknowledges himself bound to conditions of bail which include that he attend court when he is required by the court to do so, and then in disobedience to that undertaking given to the court fails to do so without reasonable excuse, it is a direct obstruction of the business of the court and therefore to the administration of justice, which is the essence of the offence of criminal contempt. In his submission, the trial judge was correct to find that correspondence was made out by reference to the common law offence of criminal contempt of court. 22. The jurisdiction to punish summarily a criminal contempt in the face of the court is of long-standing and exists to protect the administration of justice. As O’Malley states in Sentencing, Law and Practice, 2000, Roundhall at para. 11-90 “… criminal contempt of court … consists in behaviour calculated to prejudice the due course of justice”, and in that regard he footnotes the judgment of O’Dalaigh CJ in Keegan v. de Burca [1973] I.R. 223 where at p. 227 he states:
26. The trial judge drew support for her conclusion that a failure to appear in court was a contempt in the face of the court from the judgment of Costello J. in In Re Kelly and Deighan [1984] I.L.R.M 424. That was a case where Messrs. Kelly and Deighan were found to have attempted to suborn a witness and had encouraged him not to attend court on foot of a subpoena that had been served on him. In his judgment in that case Costello J. stated that jurisdiction to deal with such matters “should only be exercised in very exceptional circumstances; only if in fact it was necessary for the proper administration of justice should the court undertake a summary trial”, the alternative being of course that the matter would be referred to the DPP in the ordinary way on foot of a complaint so that the DPP would decide whether or not a prosecution should be brought on indictment. But the point is that it is a jurisdiction to be exercised for the protection of the administration of justice. Costello J. stated:
28. As I have said already, neither Counsel has been able to point to any authority either here or in the neighbouring jurisdictions to the effect that the breach by an accused of the condition of his bail to appear in court when required to do so is a criminal contempt of court. Being a not uncommon occurrence, that itself speaks loudly for the proposition that such a breach is not treated as such an offence. Any authority on the point is in fact the other way. Mr Sexton has directed the Court’s attention to some such authorities. 29. Archbold [2006 ed.] at para. 28-58 states that “The offence of failing to surrender to custody contrary to the Bail Act 1976, s. 6(1), is not a contempt of court”. Authority in that regard is located in three cases to which we have been referred, namely R v. Reader 84 Cr.App.294, Schiavo v. Anderton [1986] 83 Cr. App. R. 228, and R v. Lubega [1999] 163 JP 221, CA. 30. In R v. Reader, Leggatt J. stated:
‘An offence under section 6 of the Bail Act is not a contempt of court, although it may be said to bear some relation to it in the sense that a person who commits it has acted in defiance of an essential condition of his bail, namely that he surrender so as to appear before the court at a place and at a time appointed.’
……… All that the appellant is guilty is an offence under section 6.” 31. In Sciavo v. Anderton, Watkins L.J. noted the position which prevailed prior to the passing of the Bail Act, 1976. In that regard he stated:
Section 13 of the Criminal Justice Act, 1984
36. I consider that the trial judge wrongly focussed on trying to find equivalence between the offence in Scotland and the s. 13 offence here, rather than focus on what the respondent actually did in Scotland according to both the warrant and the additional information provided (which forms part of what the Court may consider), and then to determine whether if the same was done here he would commit an offence here. The final words of Article 2.4 of the Framework Decision “whatever the constituent elements or however it is described” are important also. 37. In relation to the Court’s entitlement to take account of facts included in additional information, and not be confined to the facts disclosed in the warrant, I refer firstly to what was stated by Denham J. (as she then was) in Dolny when towards the end of para.17 of her judgment she stated:
39. So what acts or omissions did he do or omit to do in Scotland which are said to constitute the offence charged there? First of all he accepted as a condition of being granted bail by the Scottish court that he would appear before the court whenever he was required to do so. He gave that acceptance of that condition verbally as is recorded in the bail order which has been provided. Whether it was given in writing or given verbally does not affect the character of what he did. He committed himself as a condition of being granted bail to attend court when required until his trial was concluded. The second act or omission alleged is that he failed to attend court in accordance with that commitment or undertaking. Those are the facts alleged to constitute the offence, and they are uncomplicated. 40. I take full account of the fact that under the Scottish section 102A it would appear on a plain reading of the section that even where an accused fails to appear without having given a commitment to do so as part of any conditions of bail, he will commit the offence. However, that simply does not make any sense. It is fanciful that such could occur. How, one might ask rhetorically, could it be sensibly alleged that a person who fails to appear in court without any legal obligation to do so would commit a criminal offence if he did not appear. It simply does not make sense. The failure to appear offence can only occur where an obligation to do so has been undertaken and then breached. Therefore, to confine one’s view to the mere fact of a failure to appear (i.e. the only fact stated in the warrant) and ignore the later disclosed facts that a commitment to appear was accepted as a condition of bail being granted, is, for the purpose of establishing correspondence under s. 5, to ignore the reality of what occurred, and fail to properly carry out the function required of the Court of determining correspondence. 41. In this jurisdiction an accused will, as a condition of being granted bail, agree or undertake that he will attend court on any occasion that is required including for his trial. Usually that commitment is not given orally, though it may be done that way. I accept that it is more normally done by signing a form known as a recognisance, which contains the conditions attaching to bail including the commitment to appear, and I accept also that such a form of recognisance normally contains a monetary element, often of a fairly nominal amount, which may be estreated or forfeited if any condition of bail is breached. Either way, in each jurisdiction a commitment or undertaking is entered into by the accused person that, as a condition of being released from custody pending his trial, he will attend court as required. If that person breaches that commitment or undertaking to appear he will both in Scotland and here commit an offence - that committed here will be the offence under s. 13 of the Act of 1984. The words in s. 13 of the 1984 Act “in accordance with his recognisance” must be read as meaning “in accordance with his commitment to appear”. It seems to me that when one looks at all the facts and circumstances as appear from the warrant and the additional information, it is clear that there is correspondence for the purpose of s. 5 of the Act of 2003. 42. With respect to the trial judge, her focus on the words “in accordance with his recognisance” is a distraction to the task of finding correspondence, and led to an undue focus on whether there is equivalence of offence. It failed to recognise that what is important for correspondence is the fact that a solemn commitment or undertaking to appear in court when required was given as a condition of being given bail, and that it was breached, and not the manner in which that commitment or undertaking was given. 43. As it happens, in this jurisdiction the commitment or undertaking is created by entering into a recognisance. It is true that upon entering into such a recognisance the accused will commit also to being liable to pay a specified sum of money by way of estreatment. However, estreatment of bail is, following the passing of the 1984 Act, a sanction which is in addition to the commission of a s. 13 offence where the accused fails to honour that commitment to attend court. The fact that under a recognisance a sum of money is mentioned, which may be estreated in the event of breach, does not alter the fact that what the accused does by entering into the recognisance is to undertake to appear in court as required as a condition of being released pending his trial. 44. O’Connor’s Justice of the Peace [1915 ed.] comments upon ‘Recognisances’ in Chap. VII at p. 270. The provisions of s. 34 of the Petty Sessions (Ir.) Act, 14 & 15 Vict. C. 93 as set forth commences with the words: “Whenever any person shall be bound to appear, or to keep the peace, it shall be done by separate recognisance ………”. A footnote to that section states, however, that “the signing of a recognisance is not essential to its validity” and authority is cited for that statement. I mention that simply because in the Scottish court the respondent gave his commitment to appear orally i.e. acceptance of that condition of his release, as the order notes. The fundamental essence of a recognisance is the commitment given to the court to appear. That is its purpose. A monetary element was historically included, but only for the purpose of securing the purpose of the recognisance which was the commitment to appear. Despite the words of the Scottish s. 102A, the reality, as I have explained above, is that the Scottish offence is committed when the accused fails to appear when he had an obligation to appear. There could be no such offence committed if he was not under a legal obligation to appear. 45. The inclusion of the words “in accordance with his recognisance” in s. 13 simply reflects the manner in which the commitment to appear is given to the court. It is the commitment to appear that must be focussed upon, and not the monetary nature of the recognisance. It does not detract from the fact that if the respondent did in this jurisdiction what he did in Scotland (i.e. give a commitment to appear and did not appear as required) he would commit the offence here under s. 13 of the Act of 1984, and therefore correspondence is established as defined in s. 5 of the Act of 2003. 46. The appellant has submitted that since there is no reference in the EAW or the additional information to any ‘recognisance’ being entered into by the accused person, it must follow that the appellant could not be convicted here of the s. 13 offence since that offence is committed if there is a failure to appear “in accordance with his recognisance”. In support of that submission he relies upon the judgment of Clarke J. in the Supreme Court in Clifford v. DPP [2013] IESC 43. That was a case where Clifford was charged with an offence under s. 13 of the 1984 Act, but no recognisance was produced at his trial as part of the proofs required to show that he was under an obligation to appear. In relation to proving that charge, Clarke J. stated as follows:
48. I would therefore answer the trial judge’s certified question by saying that the offence of failure to turn up in court in accordance with terms of conditional release corresponds to the offence under s. 13 of the Criminal Justice Act, 1984, but not to the common law offence of criminal contempt of court. 49. In my view, the order for surrender should stand, so that the appellant is surrendered on the assault offence Case 1 (charge 1) and the offence of failing to appear Case 1 (charge 2). His surrender on these offences is not prohibited. 1. I have had the opportunity of reading in advance the judgment which Peart J. has just delivered. I gratefully adopt his summary of the facts and the judgment in the High Court, together with his analysis of the issues raised on this appeal. As I entirely agree with his treatment of the criminal contempt issue, the only issue which I propose to address in this judgment is the separate question of whether the Scottish offence alleging that Mr. Prieto failed to attend at the appropriate court hearing in accordance with his bail terms corresponds with an offence known to our law, specifically s. 13 of the Criminal Justice Act 1984.
2. For reasons which I will now set out in this judgment, I believe that Donnelly J. was entirely correct in the conclusions which she reached in her judgment in the High Court so far as this issue is concerned. I accordingly regret that I cannot agree with the conclusions of the majority of this Court on the s. 13 issue
3. In the present case the appellant, Mr. Prieto, was given bail by Edinburgh Sheriff Court but one of the conditions was that he was required to attend at that court for every diet (i.e., court hearing) relating to the offence. It is alleged that he failed to appear at a procedural hearing on 7th January 2014 and a warrant was issued at Edinburgh Sheriff Court on 22nd January 2014.
4. Section 102A of the Criminal Procedure (Scotland) Act 1995 provides that an accused who is subject to criminal proceedings on indictment commits an offence is, without reasonable excuse, he fails to appear at a diet of which he has been given due notice, apart from a diet he is not required to attend.
5. The starting point for any consideration of this issue is s. 5 of the European Arrest Warrant Act 2003 (“the 2003 Act”)(as substituted by s. 70 of the Criminal Justice (Terrorist Offences) Act 2005) which provides that:
8. So far as the “corresponding offence” requirement is concerned, the proper approach is that articulated by Denham J. in Minister for Justice, Equality and Law Reform v. Dolny [2009] IESC 48 when she stated (at para. 14 of the judgment):
(ii) in criminal proceedings;
(iii) fails to appear before the designated court at the appointed date and time
[and
(iv) thereby breaches his recognisance]. 11. It is, of course, perfectly correct to state that in considering this question of correspondence the legal nomenclature employed in describing the essential ingredients of the offence is largely irrelevant. As McKechnie J. said in Attorney General v. Pocevicius [2015] IESC 59 at para. 41:
13. In my view, that question must be answered in the negative. I reach that conclusion for essentially two reasons which are inter-linked. First, unlike the Scottish offence, the Irish offence is not failure to attend at a designated court hearing simpliciter, since in this jurisdiction the offence is failure to attend in accordance with the recognisance. Second, in the context of a bail a recognisance necessarily implies that the accused has entered into a bond whereby he undertakes to pay a money sum in the event that he defaults on his bail conditions to attend court at a specified time and date.
14. So far as the first issue is concerned, this issue was examined - albeit in a slightly different context - by the Supreme Court in Director of Public Prosecutions v. Clifford [2013] IESC 43. In Clifford one of the issues was whether there was sufficient evidence to convict the accused of a s. 13 offence. Following an altercation at a Garda station, a member of An Garda Síochána checked the Garda PULSE database and discovered that there was an outstanding bench warrant arising from the apparent failure of the accused to appear at a particular District Court on a designated date. The Garda in question accepted in evidence that she had not been present in court when this happened. She further accepted that she was not present in court when it was said that the accused “had entered into the relevant recognisance which was said to have required him to turn up in court on the 31st July 2006.”
15. At the close of the prosecution case the defence sought a direction on the basis that there was no evidence on which it could be found that Mr. Clifford “had either entered into recognisances which required him to attend court on the 31st July 2006, or that Mr. Clifford had not attended court on that date.” It is, perhaps, significant that Clarke J. then stated:
17. Second, the very term “recognisance” implies the assumption of a monetary obligation of some sort. Historically, “recognisance” simply meant, in the words of O’Connor, The Irish Justice of the Peace (Vol. I., 2nd. ed. 1915)(at p. 269) that:
19. As the Supreme Court’s decision in Clifford makes clear, proof of a breach of a recognisance - with the concomitant monetary obligations thereby assumed - is a vital element of the s. 13 offence. As Donnelly J. noted in her judgment in the High Court, the invariable usage of statute in this context is to treat a recognisance as involving a promise to pay a monetary sum in the event that the commitment to appear in court is not honoured. Some contemporary examples may be given to illustrate this point.
20. The first example is supplied by s. 32 of the Criminal Procedure Act 1967 provides:
22. The second example may be found in s. 5(1) of the Bail Act 1997 (as amended by s. 8 of the Criminal Justice Act 2007)(“the 1997 Act”) which as thus amended provides:
(b) Where a bank, building society, credit union or post office deposit book is accepted as security by a court by virtue of paragraph (a), the court shall make an order directing the bank, building society or credit union concerned or An Post, as the case may be, not to permit the moneys on deposit to be reduced below— (i) an amount equal to the amount required to be paid into court, or (ii) the amount then on deposit, whichever is the lesser.” 24. It is true that Ord. 18, r. 1 of the District Court Rules (as substituted by the District Court (Criminal Justice Act 2007) Rules 2008 (S.I. No. 41 of 2008) provides that in bail cases the District Judge “may determine the amount (if any) conditioned by such bail.” It further states that the provisions of Ord. 18, r. 1 “which relate to the payment of money or the giving of security shall not apply where bail is allowed otherwise than conditioned on an amount of money.” (emphasis supplied)
25. I accept that - as the highlighted words illustrate - the District Court Rules Committee appear to have taken the view that a monetary payment is no longer required in every case where the accused enters into a recognisance and is admitted to bail. But for the reasons just given, however, I cannot accept that the amendments to the 1997 Act effected by the Criminal Justice Act 2007 changed the essential characteristic of a recognisance, namely, a commitment to pay a monetary sum in the event of a failure to honour the promise to appear at a subsequent court hearing.
26. Nor can the fact that the District Court Rules Committee has chosen to interpret these changes as dispensing with the necessity to enter into a monetary commitment be regarded dispositive of this question. On the contrary, given the historical understanding of the term “recognisance” which is long embedded in the fabric of the law, very clear words would have been necessary on the part of the drafters of the 2007 Act to bring about such a significant change. For the reasons I have stated, I do not think that such change was indeed brought about by either the 1997 Act or for that matter, the 2007 Act. Conclusions 28. Since no such requirement was imposed on Mr. Prieto when he was granted bail, it follows that one essential element of the s. 13 offence is not - and cannot be - satisfied in the present case. The essence of the Scottish offence is failure to attend at court on a designated day. That, however, in itself is not an offence under Irish law, since under our law there is the additional element that the failure to attend must be in breach of the accused’s recognisance.
29. It is for this reason that I am of the view that the offence under s. 102A of the Criminal Procedure (Scotland) Act 1995 does not correspond to an offence under Irish law within the meaning of s. 5 of the 2003 Act. I would accordingly decline to make an order of surrender in respect of this offence and I would answer this certified question in the negative.
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