High Court of Ireland Decisions

Newell v. O'Toole [2002] IEHC 22 (22nd March, 2002)

1. On the 14th day of November 1997, under the hand of William Richard Wilson, Resident Magistrate and a Justice of the Peace for Northern Ireland, two Warrants of Arrest issued for and in respect of the applicant, who then had an address at Bella, Collooney, County Sligo. The first Warrant, identified as “Warrant A” recited as follows:-

1. The second Warrant, “Warrant B”, was couched in the following terms:- “Whereas a complaint has been made on oath and in writing that the defendant, Nicholas Newell, formerly of 6 St. Cianan’s Villas, Duleek, County Meath, Ireland and now of Bella, Collooney, County Sligo, Ireland, on the 30th day of December, 1995, in the County Court Division of Antrim, dishonestly and with a view to gain for himself, in furnishing information to Driver and Vehicle Licensing Northern Ireland produced a document required for an accounting purpose, namely Form V 90(N.I.) for the refund of a vehicle licence, which to his knowledge was misleading, false or deceptive in a material particular in that it purported to show that the said licence was taken out by him or transferred to him with vehicle registration number TIB 1182.

1. On the 17th of August 1998, the Respondent, as Assistant Commissioner of An Garda Síochána, authorised the execution of both of these Warrants in this State by any member of the Garda Síochána. On either the 13th or 17th of September, 1998, the precise date being irrelevant, the said Warrants were executed and the applicant brought before the District Court. Ultimately by Order dated the 16th day of November, 1999, that Court, having indicated that in relation to Warrant A the corresponding offence in this State was “obtaining by false pretences contrary to the Section 32(1) of the Larceny Act, 1916” and in relation to Warrant B was “uttering a forged document contrary to Section 6 of the Forgery Act, 1913”, ordered that the applicant, pursuant to Section 47(1) of the Extradition Act, 1965 as substituted by Section 12 of the Extradition (Amendment) Act, 1994, be delivered into the custody of a member of The Royal Ulster Constabulary for conveyance onwards to the authorities in Northern Ireland. On the same day a Special Summons was issued wherein the applicant sought his release pursuant to the provisions of Section 50 of the aforesaid Act of 1965 as amended. It is in respect of that claim for his release that this Court presently gives judgment.

1. Section 50 of the Extradition Act, 1965, insofar as is material reads as follows:- “50 (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 where the Court is of opinion that -

• the offence to which the warrant relates is -
• a political offence ...................
• an offence under military law ........................
• a revenue offence, or.
• ....................
• ......................
• ... or
• the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of a least six months”

1. In this case there are two issues both of which are relied upon by the applicant as the basis for seeking his release under Section 50. The first and by far the most principle suggestion is that neither the offence specified in Warrant A or the offence specified in Warrant B is an offence “in connection with taxes, duties, or exchange control”, and on that ground alone he asserts an entitlement to be discharged by this Court. The second issue relates to Warrant B only, in respect of which it is submitted that the indictable offence specified in the District Court Order namely “uttering a forged document contrary to Section 6 of the Forgery Act, 1913” is not in fact a corresponding offence in this jurisdiction to that alleged in the said Warrant. In addition, on this as a subsidiary ground, he also seeks his release from this Court.

1. From an evidential point of view there are two Affidavits which have been filed in this case and which are of relevance. The first is an Affidavit of Mr. Michael Humphreys a Barrister practising out of the Royal Courts of Justice in Belfast. The second is that of a colleague of his namely, Geoffrey Miller who also has a practice in Belfast. From both Affidavits it would appear to be common case, that the Driver and Vehicle Licensing Agency, which is referred to in both Warrants, is an Agency within the Department of the Environment for Northern Ireland and is thus, for the purpose of this case, an emanation of that State. It would also appear that the general licensing of motor vehicles in Northern Ireland is now governed, in its entirety, by the Vehicle Excise and Registration Act, 1994 and not by the repealed provisions referred to by Mr. Humphreys. Nothing of significance turns on this as the essential part of the preamble in the 1971 Act is similarly worded in the current legislation. That states that the 1994 Act is “An Act to consolidate the enactments relating to vehicle excise duty and the registration of vehicles.” Section 1(1) of the Act provides that vehicle excise duty shall be charged in respect of “every mechanical propelled vehicle which is used, or kept, on a public road in the United Kingdom and shall be paid on a license to be taken out by the person keeping the vehicle”. Mr. Humphreys in the final paragraph of his Affidavit, having stated as his belief that the purpose of such duty is to raise funds for the Government, went on to say that:-

1. Mr. Miller in his evidence was more extensive, this not only in the views and opinions offered by him but also in setting out some of the background facts and some of the circumstances surrounding this intended prosecution. At paragraphs 6 to 8 inclusive he states:-

1. In his helpful submissions presented orally and supported by written material, Mr. Feichin McDonagh S.C., makes the following case on his client’s behalf. Having referred to Peter Buchanan Limited v. McVey [1954] IR 89, The State (Hully) v. Hynes 100 ILTR 145 and Byrne v. Conroy [1998] 3 IR 1, Mr. McDonagh claims that these must be revenue offences as the entitlement to a refund arises in the context of statutory provisions dealing with vehicle excise duty. It is said that this excise duty has all the hallmarks of a tax or a duty within the meaning of the Act. It is imposed by a sovereign Government in respect of Northern Ireland and is sought for the purposes of raising revenue. This revenue is collected by an agency for the benefit of the Exchequer at large and is leviable on all persons using or keeping vehicles on the public roads of that State. There is therefore, resulting from the activities complained of, a loss to the Exchequer of that State. In addition, on this first issue, objection is taken to the evidence of Mr. Miller, which is quoted above, it being suggested that such matters are immaterial and constitute hearsay. Moreover and in any event it is further claimed that once the Court strictly construes the relevant provisions it should also conclude that these averments are irrelevant.

1. On the “correspondence issue”, Section 1 (1) of the Forgery Act, 1913 was quoted as was subsection (2). It was claimed, relying on Kenny’s Outlines of Criminal Law 19th ed. 1965 at 375, Smith and Hogan’s Criminal Law 6th ed. 1988 p. 650 and The Law Relating to Dishonesty, LRC (43-1992) at 273, that the essence of the offence of forgery is that the document in question “tells a lie about itself” or as it is sometimes otherwise put “telling a lie does not become a forgery because it is reduced to writing: it is the document which must be false and not merely the information in it”.

1. On behalf of the Respondent, Mr. McGuinness S.C. began his detailed submissions with a review of what the relevant authorities and statutory provisions were and having asked this Court to accept the evidence of Mr. Miller, he urged that the offences in question were not and could not be revenue offences. He pointed out that the penal provisions of the 1994 Vehicles Excise and Registration Act, focused specifically on the offences of fraudulently evading payment of duty, as example of which would be to mistake the capacity or type of vehicle to be licensed. Furthermore he submitted that the mere loss of money to the revenue, could not by itself and without more, bring an offence into the category of a revenue offence, because if it did, it would mean that many offences such as robberies from post offices, security personnel and the like, which undoubtedly result in a loss to the Exchequer, would, simply because of this, become revenue offences under the 1965 Act. His firm belief was that these offences were not covered by Section 50. On the point raised under Section 50(2)(c) of the Act he disagreed with the submissions made on behalf of the applicant.

1. The general law on what constitutes “a revenue offence”, for the purposes of an outside agency seeking this Court’s assistance, has been dealt with, quite authoritatively, by both the present and former Supreme Courts. It is thus unnecessary for the purposes of this judgment, to look at such law in any depth but it is I think helpful to quote certain passages from the decision of Kingsmill Moore J. in the Buchanan case, supra. The following extracts are I believe of relevance to an understanding of the first issue which presents itself for consideration. These are as follows:-

1. This judgment of Kingsmill Moore J. was liberally applied in Byrne v. Conroy [ 1998] 3 IR 1. In that case Mr. Byrne with others was charged, by a Complainant described as a Senior Investigation Officer with Her Majesty’s Customs and Excise Investigation Division, at Paisley in Scotland, of conspiring to defraud the Intervention Board for agricultural produce, of monetary compensation amounts due in respect of the export of grain from Northern Ireland to the Republic by dishonesty avoiding payment due to the board through several alleged and specified devices. His extradition to Scotland was sought and the sole issue was whether or not the offences were revenue offences. The judgment in the High Court, having thoroughly reviewed all relevant law, concluded that they were not so covered in that phrase as contained in subsection (2)(a)(iii) of the 1965 Act and accordingly directed his extradition. The Supreme Court unanimously approved the judgment of Kelly J. and in the process also took the opportunity of endorsing and reaffirming the opinion of Kingsmill Moore J. in Buchanan supra. From Byrne the following principles emerge as being directly applicable to this case. These are as follows:-

• The onus of proof is on an applicant to satisfy the Court that the offence in respect of which his extradition is sought is a revenue offence,
• Whether such an offence is or is not a revenue offence is a matter of Irish Law and thus whilst the opinion of foreign experts, whether they be lawyers or economists, can be received in evidence, it’s relevance or weight value is highly problematic given the Court’s obligation to determine this issue in accordance with domestic law,
• The statutory provisions of the 1965 Act material to this case must be construed in a strict or literal manner as “extradition proceedings have far reaching effects for the person extradited. Not only may he lose his liberty but he may also be separated from his family and friends and sent to another country out of the jurisdiction of these Courts ... in a sense extradition proceedings are ancillary to criminal proceedings”. See The State (McFadden) v. Governor of Mountjoy Prison [1981] ILRM 113.
• In so doing:-
• Words must be given their ordinary and natural meaning,
• No gloss may be placed on such words,
• Any reasonable doubt or ambiguity must be resolved in favour of the applicant (See Kelly J., at page 13 in Byrne, supra), and finally,
• The Court is entitled to look at the true nature of the offence and to scrutinise the substance of the claim made. In doing so it can extensively inquire and fully analyse.

1. In accordance with the aforesaid decisions I accept without reservation that the relevant part of Section 50, coupled with the definition of “revenue offence” must be construed strictly. If from this approach there should emerge a reasonable doubt or ambiguity or if a reasonable construction could avoid an adverse consequence for the applicant, then that course is the one which I should follow. But this principle of interpretation does not in my view render inadmissible the evidence of Mr. Miller as set out at paragraph 7 above. Indeed in accordance with certain passages from the judgment of Mr. Justice Kingsmill Moore in Buchanan, I feel that this Court is perfectly entitled to look at the substance of the offence in question and to closely examine the detail of it. The reason for permitting such an approach, certainly in the context of Buchanan, was to ensure that the requesting State would not dress up the offence in respect of which the extradition was sought in such a manner so as to give the ostensible but erroneous impression that the same was unrelated to the fiscal or revenue policies of that country.

1. In the absence of this exercise it would be of little benefit to the extradited person and would be an affront to the extraditing Court, if subsequent to the granting of the Order sought, it emerged quite clearly that in essence the true nature of charge proffered was indeed revenue based. And so the taking upon itself of this valuable course so that not only is the form looked at but also is the substance. Whilst it might be said that the intended beneficiary of this approach, would generally if not always be the accused person, nevertheless I cannot see anything in principle as to why, if invited, the Court should not be entitled to look at all of the circumstances and in particular address its mind to the essence of what is claimed. Once it remains conscious that the Act of 1965, is one which is penal in nature with the consequences which follow from that description, then in my view there is nothing to stop this Court, in this case, from considering the evidence of Mr. Miller which incidentally, as to its accuracy has not been challenged in these proceedings.

1. That being so I ask myself what claim based on taxes, duties or exchange control does the requesting authority have, make or assert as against the applicant? There is no question but that Mr. Newell did not own or have an interest in or operate, or otherwise have possession or use of the motor vehicle identified at any time. Or indeed have any vehicle which was in any way connected with the scheme devised by him and implemented in December 1995 and January 1996 in order to obtain the sum of £2,325 from the Vehicle Licensing Office in Coleraine. There is no suggestion that he misstated the capacity of a motor vehicle owned by him or its type, kind or make. He was involved, according to the evidence, with what a lay person would describe as the “theft of money” .

1. In charging him as the Northern Ireland Authorities have, they have not accused him of any offence under Revenue Legislation.. Rather he is charged under the Theft Act (Northern Ireland) 1969. It is not in my view tenable to suggest that he is charged with a breach of some revenue provision or that, if he was tried on either or both of the offences recited in the Warrants, he would be facing any specific or indeed any “revenue offence” known to Northern Ireland. The Authorities would not, by such a prosecution be attempting to enforce revenue law. This applicant quite simply was a person who found the property of another and who attempted, successfully, by using what he found, to obtain for himself a monetary gain.

1. If for example he was civilly sued for the amount of the cheque the form of proceedings I suspect would be quite unlike those taken by the Revenue Commissioners if taxes or duties were lawfully due and unpaid. There is no doubt but that there is a connection and interaction between the Revenue Authority/Exchequer on the one hand and the applicant on the other. This arises out of the ownership of the cheque which was cashed and also from the method by which it was allegedly obtained. But these “connecting aspects” , in my view fall far short of what would be required in order to constitute a “revenue offence” for the purposes of section 50 (2)(a)(iii) of the 1965 Act.

1. Lets suppose a person intercepted in the post, a cheque or money order payable to or from the Revenue Commissioners, whether that be a return of income tax, VAT or the payment of a state pension, unemployment assistance or allowance or otherwise, could it be said that the resulting offence was within the statute a revenue offence of the requesting State? The examples of a post office robbery or a robbery from Social Security Personnel may not altogether be identical with what happened in this case but nevertheless simply by way of an analogy it would be difficult to see how such a person could successfully defend extradition proceedings by raising the plea as is raised in this case. Accordingly I believe that what is alleged against the applicant has it’s basis in a claim falsely made by him and erroneously paid by the Licensing Authority. The resulting charges in my opinion for the reasons above given are not “revenue offences” as so defined in the relevant section. I would therefore refuse the applicant relief in this regard.

1. Commencing with section 41, Part III of the 1965 Act, as amended, deals with the endorsement and execution of certain Warrants. Save for the point hereinafter dealt with, no issue arises in these proceedings as to the validity of the endorsement or execution of either Warrant which as previously stated issued on the 16th of November, 1997. Section 47 of the Act reads as follows:-