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O'Sullivan v. Conroy [1997] IEHC 142 (31st July, 1997)

THE HIGH COURT

1996 No. 258 Sp

IN THE MATTER OF THE EXTRADITION ACTS, 1965-1994

AND IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACT, 1965

BETWEEN

NOEL O'SULLIVAN

APPLICANT

AND

NOEL CONROY

RESPONDENT

Judgment of Mr. Justice Barr delivered the 31st day of July, 1997.

1. The facts which have given rise to this application are not in dispute and are as follows:-

2. On 3rd January, 1996 the respondent, an Assistant Commissioner of the Garda Siochana, authorised the execution of a warrant for the arrest of the applicant. It is alleged that between 1st January, 1990 and 28th September, 1994 within the jurisdiction of the Central Criminal Court for England and Wales, the applicant, together with other persons named in the warrant, conspired to defraud the Secretary of State for Social Security by dishonestly causing and permitting the Secretary of State to pay out monies by way of welfare benefits by means of falsely representing that details and documents provided in support of claims of benefit were true and complete and were genuinely made by the person in whose name the claim was made, contrary to common law.

3. On 19th January, 1996 the applicant was arrested by members of An Garda Siochana at his home in the State and brought to the Dublin Metropolitan District Court where in due course extradition proceedings were heard on 18th April, 1996, the applicant having been admitted to bail by order of the High Court. On the latter date the learned District Judge made an order pursuant to Section 47 of the Extradition Act, 1965 (as amended) requiring the delivery of the Applicant into the custody of a member of the London Metropolitan Police, it having appeared to the court that the offence specified in the warrant corresponded with an offence under the laws of the State which was an indictable offence, namely conspiracy to defraud contrary to common law. The applicant thereupon brought proceedings in which he has applied to this court for his release pursuant to Section 50 of the Extradition Act, 1965 as amended.

4. The section provides:-

"(1) A person arrested under this Part shall be released, if the High Court or the Minister so directs in accordance with this section.

(2) A direction under this section may be given by the High Court, were the court is of the opinion that........

(b)(b)(b) by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances of the case, be unjust, oppressive or invidious to deliver him up under Section 47"

5. It is not in dispute that the offence of conspiracy to defraud is part of the common law in Ireland, as in England, and it is also accepted that, if extradited, the applicant will be tried only in respect of the particular offence specified in the warrant. The essence of the argument advanced on behalf of the applicant relates to the procedure under English law which will be followed at the proposed trial regarding the introduction of evidence before the jury which is directed towards proving the character and object of the alleged conspiracy but the admissibility of which is conditional upon the introduction by the prosecution of other evidence of common purpose. If no such corroborative evidence is forthcoming, English law requires that the trial judge is obliged to direct the jury to disregard the evidence in question. It is submitted by Mr. Gageby for the applicant, that, having regard to the judgment of the Supreme Court in People v. Conroy [1986] I.R. 460 the concept of conditional admissibility of evidence before a jury in a criminal trial is contrary to the principle of fair procedure which is guaranteed to accused persons in Ireland under the Constitution. It is argued that such evidence may not be introduced to a jury in Irish law while there is any qualification as to its admissibility against the accused i.e. in Irish law a jury should not receive evidence prejudicial to an accused person the admissibility of which is dependant on other evidence which may not be forthcoming. Mr. Gageby relies in particular on the following passage from the judgment of Finlay C.J. in Conroy at p.472:

"It seems to me clear that the constitutional right of a person charged with anything other than a minor offence to a trial with a jury does not involve nor does the decision in the Lynch case [1982] I.R. 64 suggest that it involved a right that issues of fact arising with regard to the admissibility of evidence should be tried by the jury. I am, however, satisfied that the constitutional right to a trial in due course of law as interpreted by this Court would involve as a fundamental matter the right to trial by a jury from whose knowledge there is excluded any evidence of guilt which is inadmissible at law. For this reason I have the greatest possible difficulty in conceiving circumstances under which , with justice, it would be possible to leave to a jury at the conclusion of the case, evidence, the admissibility of which is being challenged, simply giving to them a direction on the issue of fact which is involved and a warning that if they should resolve that issue in favour of the accused, they should ignore the incriminating evidence which they had heard. Experience as a judge indicates that even as a trained lawyer there is a very significant difficulty in excluding from someone's mind incriminating evidence on the trial of a criminal case which is inadmissible. In my view it would be an unreal task to seek to impose on a jury of lay persons, and the risk of real injustice flowing from it would be great."

6. The framework provided by Section 50 supra must be considered in the light of the constitutional structure in which all Irish law operates. Accordingly, the function of the court is to look at the procedure which will be adopted in connection with the applicant's proposed trial in England and consider whether it would be acceptable in Irish law having regard to the constitutional safeguards provided for the benefit of accused persons in criminal trials in this jurisdiction.

7. Long standing convention requires that foreign law and procedure must be formally proved by expert testimony from a person duly qualified in the laws of the particular state. In this case both parties rely upon the affidavit of Richard Butcher, a member of the English Bar who specialises in the practice of criminal law in that jurisdiction. His deposition includes the following averments:-

"3. In paragraph 6 of his affidavit, the applicant states that he alone will be charged with a conspiracy to defraud rather than the statutory conspiracy laid against the other accused. The English law on the charge of obtaining property by deception [contrary to Section 15 of the Theft Act, 1968], and therefore conspiracies to do the same, has significantly changed following the ruling of the House of Lords in Regina v. Preddy, Slade and Dhillon [1996] 3 AER. 481. It is now necessary, following the ruling in Preddy for the prosecution to strictly prove that the matter obtained by the deceiver is exactly the same, both in physical and legal character, as that which was passed over by the deceived. Where, the subject matter of fraud is money, then whether it be cash, cheques [or similar instruments] or bank transfers [of whatever nature] it is now rarely appropriate to charge obtaining property by deception, a conspiracy to effect the same or an attempt. These restrictions are not present in a charge of conspiracy to defraud.

4. In paragraph 7 of his affidavit, the applicant states that he believes that the practice within the United Kingdom of preferring charges of conspiracy and the manner in which they are presented constitute an unfair procedure because it permits the admission of evidence which would otherwise be inadmissible were the charge one of deception simpliciter.

5. It is not correct that the existence of a conspiracy charge permits the admission of evidence which would otherwise be inadmissible . The English rule is that acts and declarations of any conspirator in furtherance of the common design are admissible in evidence against any other conspirator, irrespective of whether the indictment contains a count for conspiracy or not: Philips 'Treatis on Evidence' (1820) 4th Edition, p.p. 96-100 . [The deponent also referred to R. v. Walters and Others (1979) 69 CAR 115, 121 CA].

6. Such acts and declarations are admissible to prove the original character and object of the conspiracy. However, they may only be evidence against a conspirator if it is proved from independent evidence that, at the time of their making, he was a member of the conspiracy. It is an instance of conditional admissibility; the trial judge may have regard to such matters, although their admissibility is in issue but he will have to exclude them if it transpires there is no other evidence of common purpose: R. v. Donat (R.W.) (1986) 82 CAR 173, CA.: R. v. Governor of Pentoville Prison , ex-parte Osmond (1990) 1 WLR. 277 at 316 ".

8. The relevant rule in English law is succinctly summarised in the head-note to the judgment in Donat in the following term at page 174:-

"Where a defendant was charged with conspiracy, documents made out and actions done in furtherance of that conspiracy by persons other than the defendant may be admissible in evidence against him, provided that there was other evidence of common purpose. The latter could be dealt as one of conditional admissibility and the trial judge might have regard to such matter, although their admissibility was in issue; but would have to exclude them if it transpired that there was no other evidence of common purpose......."

9. Mr. Gageby submits that conditional admissibility is within the ambit of the dictum of Finlay C.J. in Conroy to which I have referred and that no evidence which could transpire to be inadmissible for lack of other evidence of common purpose should be introduced to a jury. I have some doubt as to whether the principle enunciated by Finlay C.J. in Conroy extends to include the concept of conditional admissibility as envisaged in the instant case. However, I do not have to decide that question as in my view it does not arise. The applicant will be tried in England in respect of one offence only i.e. conspiracy to defraud contrary to common law as specified in the warrant of arrest. If conditional evidence against the accused indicative of the conspiracy alleged is introduced to the jury by the prosecution and it transpires that there is no other evidence of common purpose, then under English law the trial judge will be obliged to withdraw the case from the jury and direct it to acquit the accused of the offence charged. It seems to me that the principle enunciated by Finlay C.J. in Conroy could have relevance only if the accused was on trial also for some other related crime. That will not arise in the applicant's case. It follows that the proposed conditional evidence will be admissible against the applicant if supported by other evidence of common purpose, or, alternatively, it will transpire to be unsupported by such further evidence, in which case the jury will be directed by the trial judge to acquit the applicant of the only offence which will be contained in the indictment at his trial, i.e., that specified in the warrant. In short, the question of unfair procedure in the context of Irish constitutional law will not arise on the applicant's trial in England.

10. It has been argued also that by reason of lapse of time since the commission of the offence specified in the warrant, it would be unjust, oppressive or invidious to deliver him up under Section 47 of the Extradition, Act, 1965. The crime charged relates to a conspiracy to defraud the Secretary of State for Social Security in the U.K within a period ending on 28th September, 1994. All of the conspirators, except the applicant, were arrested on 27th September, 1994. Thereafter there was no unreasonable delay in bringing them to trial. The applicant was not arrested with the others as his whereabouts was then unknown (see affidavit of Stephen Arthur Grayson, a barrister employed by the Solicitor to the British Department of Health and Social Security) The warrant for his arrest was issued on 30th October, 1995. It was endorsed by the respondent on 3rd January, 1996 after it had been considered by the Attorney General and the applicant was arrested on 19th January, 1996. It has not been established by the applicant that there has been any delay as envisaged in Section 50 (2) (b)(b)(b) supra.

11. I am satisfied that for the foregoing reasons the plaintiff's application under Section 50 to resist extradition on foot of the warrant fails.