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Cite as: [1999] 4 IR 294, [1999] IEHC 198

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Myles v. Assistant Garda Commissioner [1999] IEHC 198; [1999] 4 IR 294 (13th October, 1999)

THE HIGH COURT

1997 No. 306 Sp

IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACTS 1965-1994

BETWEEN

KELVIN MYLES

APPLICANT

AND

ASSISTANT COMMISSIONER OF AN GARDA SIOCHANA, HUGH SREENAN

RESPONDENT

Judgment of Mr. Justice Geoghegan delivered on the 13th day of October, 1999

1. This is a claim for release under Section 50 of the Extradition Act, 1965, as amended. The Applicant is wanted in England on a charge of conspiracy to defraud. The Extradition Warrant issued from a Magistrates Court in London and contains the following particulars under the heading "alleged offence":-

"Between 1st May, 1989 and 31st March, 1990 within the jurisdiction of the Central Criminal Court for England and Wales conspired together with Clive James Smith, David Charles Wilkinson, Roger Anthony Jeffries and David Russell Crowe to defraud such persons as might be minded to subscribe for shares in Richmond Oil and Gas plc on or after 6th July, 1989 pursuant to an Offer for Sale of 20,000,000 new ordinary shares of 10p each at 105p ("the shares"), and such persons who might on or after 14th July, 1989 be minded to deal in the shares on the Stock Exchange,

(1) by dishonestly concurring in the issue of an Offer for Sale document which was false or misleading in material statements or omissions, namely in representing to professional advisers, the Stock Exchange and to the public that the Offer for Sale was fully underwritten in circumstances where the defendants knew or suspected that a number of the sub-underwriting companies with which they were connected could not or might not be able to meet all or any of their underwriting commitments and hence that the underwriting obligations of Corporate Broking Services might not be honoured; and

(2) by concealing from the Stock Exchange and from the market on or after 14th July, 1989 that:-

(a) thirteen of the sub-underwriting companies connected variously with the defendants and controlled by them had failed to honour their underwriting commitments in the total sum of £15,165,255;

(b) allotment letters in respect of the shares subscribed for by the said defaulting sub-underwriters had been issued as a result of the implementation of a fraudulent scheme designed to represent that the shares allotted to the said sub-underwriters had been paid for when in fact they had not;

(c) the supposed proceeds of sale of those shares which had been issued had not been passed to Richmond Oil and Gas plc. and were not available for the purposes stated at pages 5 and 6 of the Offer for Sale document;

(d) that despite the issue by 25th July, 1989 of all the shares, the total cash from the sale of the shares which was available to Richmond Oil and Gas plc was only about £8.2 million and not £21 million as investors were entitled to believe was the case by virtue of the statement as to full underwriting of the issue and the issue of all the shares; and

(e) that in the foregoing circumstances there was between 14th July, 1989 and 31st March, 1990 to the knowledge of the Defendants, a false market in the shares.

Contrary to Common Law."

2. Counsel for the Applicant, Dr. Forde, challenges the extradition on the following grounds:-

(1) There was no correspondence between the allegations as made in the warrant and any known Irish offence.

(2) The Common Law offence of conspiracy was only carried over under the Constitution in so far as the charge involved a conspiracy to commit a crime. As a conspiracy to commit some illegality short of crime was too vague and uncertain, it was argued by Dr. Forde that it could not constitute a crime in this jurisdiction having regard to the Constitution and particularly if the Constitution is interpreted in the light of the European Convention on Human Rights.

(3) There was inordinate delay in proceeding with the prosecution in England and that such delay and surrounding circumstances rendered it unjust to extradite the Applicant.

(4) There had been some evidence at the abortive hearing of this application before Mr. Justice Cyril Kelly that if the Applicant could not be tried jointly with co-accused who were to be tried now in November, the prosecution against the Applicant would be unlikely to go ahead on grounds of expense.

3. In the event, I do not think that the fourth ground was seriously pursued because the evidence at the hearing before me given by Mr. Anthony Farries of the English Serious Fraud Office did not bear it out. I am satisfied on the evidence that I heard that if the Applicant is extradited to England he will be tried. The trial, however, is not likely to occur until some time after Easter as the trial commencing in November would have to be well and truly finished. That trial is expected to last something in the order of four months.

4. I am only concerned in this judgment, therefore, with the three other grounds. The most important of these is the question of whether there is correspondence. The principles to be applied in relation to this issue are neatly summarised by Henchy J. in his judgment delivered in the Supreme Court in Hanlon -v- Fleming [1981] I.R. 489 at 495 in the following passage:-

"The third point raises the question whether the specified offence has the required correspondence with an offence under the law of this State. The relevant decisions of this court, such as The State (Furlong) -v- Kelly , Wyatt -v- McLoughlin and Wilson -v- Sheehan showed that it is a question of looking at the factual components of the offence specified in the warrant, regardless of the name given to it, and seeing if those factual components, in their entirety or in their near entirety, would constitute an offence which if committed in this State, could be said to be a corresponding offence of the required gravity."

5. It is conceded by Counsel for the Applicant that any arguments he might put forward in relation to correspondence on foot of paragraph (1) in the warrant are considerably weaker than arguments which he might put forward in relation to paragraph (2). When reduced to its essentials, this concession is largely based on the inclusion of the word "dishonestly" in paragraph (1) and its absence in paragraph (2). Dr. Forde does, however, make other points as well. He says that the word "concurring" could imply some kind of mere passive acquiescence and was not in any sense the same thing as "authorising". In relation to paragraph (2) quite apart from the omission of a word such as "dishonestly" or "falsely", he says that the word "concealing" does not necessarily imply any illegality or impropriety or still less criminality. Effectively, he is arguing that concealment may be perfectly innocent and is a neutral term. I should have also added that in relation to paragraph (1) the argument is made that the addition of the words "or suspected" after the word "knew" removes any correspondence with an Irish offence.

6. The best definition of the Common Law offence of conspiracy to defraud is probably to be found in the English case of Scott -v- Metropolitan Police Commissioner [1975] AC 819. That definition reads as follows:-

"An agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled, or...an agreement by two or more by dishonesty to injure some proprietary right (of the victim's)."

In O'Sullivan -v- Conroy , Barr J. in an unreported judgment delivered 31st July, 1997 stated the following:-

"It is not in dispute that the offence of conspiracy to defraud is part of the Common Law in Ireland, as in England..."

7. It would seem from the general tenor of those remarks and of that judgment that Barr J. himself was of the view that conspiracy to defraud was a Common Law offence similar in Ireland and in England even if it was conceded by both parties. In this case, of course, for other reasons Dr. Forde does not concede it is part of the Common Law of Ireland and I will be dealing with that point later on in this judgment. But if conspiracy to defraud was carried over under the Constitution, then I do not think it is seriously disputed in this case either that there is any difference in the ingredients of the offence as between Ireland and England. But of course for the purposes of deciding the correspondence point I do not have to concern myself with English law. I simply have to read the particulars in the warrant and form a view as to whether they constitute an offence in Irish law. Having applied that exercise, I am absolutely satisfied that there is correspondence in this case. It is quite clear from the dicta of Henchy J. that a mere imperfection in draftsmanship would not be sufficient to defeat the warrant. One must read the warrant as a whole and if on any reasonable interpretation of the particulars as given they are intended to convey a set of facts which would be an offence in Ireland there is sufficient correspondence. I do not find it necessary, therefore, to consider whether, as a matter of perfect draftsmanship, a word such as "dishonestly" ought to have been inserted in paragraph (2) because I am satisfied that upon reading the entire charge under the heading "alleged offence" it is perfectly obvious that dishonesty is what is alleged. While of course I accept Dr. Forde's submission that the label given to an offence is irrelevant and that therefore the mere fact that the offence alleged might be called in England "conspiracy to defraud" is not material. But that does not mean that I cannot apply an ordinary dictionary meaning to the verb "conspired" where it appears in the warrant and even more to the point to the words "to defraud" where they appear in the warrant. If the concealment from the Stock Exchange alleged in paragraph (2) was to be construed as something completely neutral and therefore possibly innocent, that would be entirely inconsistent with the general qualifying words in the opening paragraph which referred to the Applicant and the co-accused having "conspired together" and "to defraud". Nor do I think that the addition of the words "or suspected" after the word "knew" is in any way fatal to the validity of the warrant. Either word would cover fraudulent conduct and even if I am wrong in that, I think that the words "or suspected" can be treated as surplusage. I am satisfied that none of the arguments put up by Dr. Forde in relation to correspondence can be upheld and therefore on that count the warrant is perfectly valid in my view.

8. I now turn to the argument that the offence of conspiracy to defraud was not carried over under the Constitution. Let me state at the outset that I am impressed by the argument that certain types of vague conspiracies which might have been regarded as an offence under the old Common Law might now be regarded as two uncertain to render them triable under the Constitution. But it is not necessary for me seriously to consider this argument as I am satisfied that it could not apply to conspiracy to defraud. Dr. Forde fully admits that it could not apply to conspiracy to commit a crime. I think that by the same token the ingredients of the offence of conspiracy to defraud and the meaning of "defraud" have been so clearly established over centuries that the question of uncertainty does not arise and I see no reason why the Common Law offence of conspiracy to defraud would not have been carried over under the Constitution. As has been pointed out, it was clearly assumed by the Oireachtas of Saorstat Eireann to have been carried over under the first Constitution as there is a form of indictment included in a schedule to the Criminal Justice Administration Act, 1924 for conspiracy to defraud. I must reject this ground of opposition also.

9. The third ground of delay now remains to be considered. Under Section 50 of the Extradition Act, 1965, as amended, and, in particular, by the insertion of sub-section (2)(bbb) a release can be ordered "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 them up under Section 47". I accept in full the evidence of Mr. Farries. This was an extremely complex case. A hugely extensive investigation had to be carried out. There were vast numbers of interviews and production notices in relation to documents. Requests for assistance had to be made to several foreign jurisdictions. In relation to the trial of the co-accused which is expected to be heard in November, there are some 2,000 pages of statements and nearly 25,000 pages of documents. There are also gigantic quantities of unused material. In these circumstances, I do not consider that the lapse of time has been unreasonable. There is no evidence of any negligent delay on the part of the prosecuting authorities and at any rate there is no evidence of any other particular or special circumstances. I must reject this ground of opposition also.

10. The application under Section 50, therefore, must be refused.