High Court of Ireland Decisions

 


HC 224/04

THE HIGH COURT JUDICIAL REVIEW

[2002 No. 2689S.S.]

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS AMENDED BY THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS, 1961 TO 1991

AND IN THE MATTER OF THE EXTRADITION ACTS 1965 TO 2001 AND IN THE MATTER OF AN APPLICATION FOR THE EXTRADITION OF ROBERT BURNS

BETWEEN

THE ATTORNEY GENERAL

RESPONDENT

AND ROBERT BURNS

APPELLANT

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 10th December, 2003.

This matter comes before this Court on appeal by way of case stated from a decision of the District Court (Judge Conal Gibbons) made on 25^th June, 2002, on the application in writing of the appellant, he being dissatisfied with the determination of the District Court judge as being erroneous on a point of law.

The case stated recites that the matter came before Judge Gibbons at the Dublin Metropolitan District Court on 10^th June, 2002 and following days on an application by the Attorney General for the extradition of the appellant to the United States of America pursuant to the provisions of the Extradition Act, 1965, as amended. It appears from the case stated that this application was on foot of the request from the Government of the United States of America dated the 18^th January, 2002, together with supporting documentation furnished to the District Court and a further letter from the United States Government dated 29^th January, 2002.

The case stated recites the documentation that was furnished to the District Court which documentation was appended to the case stated herein. It appears from the case stated that the extradition of the applicant was sought only in respect of counts 1 to 15 and counts 26, 28 and 29 of the indictment, which indictment formed part of the supporting documentation.

The case stated reveals that the appellant was arrested by Detective Sergeant Heffernan of the Extradition Section, Garda Headquarters on 14^th January, 2002, at Howth Summit, Howth in the County of Dublin on foot of a provisional warrant of arrest issued by the District Court on 12^th January, 2002, pursuant to the provisions of the Extradition Act, 1965. The applicant was taken initially to Howth Garda Station where he gave his name and address and ultimately was taken to the Bridewell Garda Station and later to the District Court which remanded him in custody from time to time.

Mr. Robert Adams, a trial attorney in the United States Department of Justice, Criminal Division, Fraud Section, gave evidence to the District Court that all of the offences on which the appellant's extradition was being sought had occurred in the United States of America, that they had no political connotations, that they were not revenue offences and did not attract the death penalty. He further indicated that no charges were pending against the appellant in any other country in respect of these offences. He indicated that the appellant had a United States passport and appeared to have been born in the United States of America. He conceded that he had never seen the appellant before. He confirmed that Messrs. Ashcroft and Powell, who were named in the supporting documents, were Cabinet level officers appointed by the President of the United States of America and as such were equivalent to a Minister in the Irish Government.

It is indicated in the case stated that Mr. Adams, when cross-examined by Counsel on behalf of the appellant, agreed that the conspiracy charged in count no. 1 of the indictment was an agreement to commit two separate offences, namely health care fraud and mail fraud. The case stated indicates that he stated that proof of the use of the mail was a necessary element of the offence of mail fraud and was not simply a jurisdictional matter. The case stated also indicates that he stated that the conspiracy charged was alleged to date from 1993 onwards. He conceded that the statutory limitation period applicable to the offence was five years but stated that, in the case of conspiracy, the time runs from the last act in furtherance of the conspiracy, although this was not set out in the United States Code but was a result of a judicial decision. The District Court judge records that he was unable to give a citation for such an authority. He indicated that since the health care statute was not enacted until 1996, the United States Government was applying on acts of the appellant from 1993 to 1996 to support mail fraud and on acts from 1996 on to support health care fraud. It was conceded that acts committed prior to 1996 could not violate the health care statutes. He also agreed that the jury could not divide the charges as laid and if they found evidence of either mail fraud or health care fraud they could find the appellant guilty of the conspiracy charge. If the appellant was convicted of this count, he would be punished for all the conduct alleged from 1993 onwards.

Mr. Adams also agreed that the Federal Sentencing Guidelines permit judges to take into account uncharged conduct when sentencing defendants so that a defendant might be punished for offences with which he was never charged. It is recorded that the sentencing guidelines provide for a base offence level and that the court then examined the conduct for characterisation of the offence which could move the level upwards thereby attracting a greater sentence. However the sentence could not exceed the statutory maximum for the offence. Under the sentencing guidelines relevant conduct included unindicted bad conduct. Matters which could be taken into consideration by a sentencing court included similar offences and loss attributable to unindicted conduct. The conduct charged on counts 16 to 26 inclusive could be taken into consideration by a federal court when sentencing a defendant in a criminal case, notwithstanding the fact that the applicant's extradition was not sought on these counts. It appears that Mr. Adams did not know if the rule of specialty would apply to a case in which the defendant had been extradited from another jurisdiction so as to prevent this occurring. It appears that he was not familiar with the manner in which the Federal Sentencing Guidelines are applied in cases such as the present.

Counsel for the appellant referred Mr. Adams to a number of authorities. Mr. Adams pointed out that none of the cases cited were from the 4^th Circuit of Appeals which were the courts governing West Virginia and he did not know what the law in West Virginia was in relation to the application of the rule of speciality. The cases in question are U.S. v. Andonian, U.S. v. Lazarevich and U.S. v. Labaron.

Mr. Adams agreed that at the appellant's trial other claims concerning patients other than those expressly referred to in the indictment could be introduced in evidence.

The submissions made by counsel on behalf of the appellant's before the District Court are recorded in the case stated at para. 4 and are as follows:

1. That the onus is on the Attorney General to satisfy the court that all the statutory requirements would be met and, if the evidence is not sufficient to so satisfy the court, the court should order the discharge of the appellant.

2. The request for extradition in the present case does not comply with the requirement of s. 37 of the Extradition Act, 1965 which provides:

"A document supporting a request for extradition shall be received in evidence without further proof of it which purports to be signed or certified by a judge, magistrate or officer of the requesting country and to be authenticated by the author or some witness or by being sealed with the official seal of a Minister of State of that country and judicial notice shall be taken of such official seal."

The Extradition (European Union Conventions) Act, 2001 which came into operation on 20^th March, 2002, by virtue of S.I. 85 of 2002 made certain amendment to the Extradition Act 1965. Section 17 (b) of the Act of 2001 substituted a new s.37 in the Act of 1965 by way of repeal of the former section. The new section provides as follows:

  "37.—(1) In proceedings to which this Part applies, a document supporting a request for extradition from a requesting country (other than a Convention country) shall be received in evidence without further proof if it purports—

(a) to be signed by a judge, magistrate or officer of the requesting country, and

(b) to be certified by being sealed with the seal of a minister of state, ministry, department of state or such other person as performs in that country functions the same as or similar to those performed by the Minister under this Act, as may be appropriate, and judicial notice shall be taken of such seal.

     (2) In proceedings to which this Part applies, a document purporting to be a copy of a document supporting a request for extradition from a Convention country shall, subject to subsection (3), be received in evidence without further proof.

     (3) In proceedings to which this Part applies, a document that purports to be certified by—

(a) the judicial authority in a Convention country that issued the original, or

(b) an officer of the Central Authority of such a country duly authorised to so do, to be a true copy of a conviction and sentence or detention order immediately enforceable or, as the case may be, the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of that country, shall be received in evidence without further proof, and where the seal of the judicial authority or Central Authority concerned has been affixed to the document, judicial notice shall be taken of that seal.".

3. It is submitted that this new s.37 does not apply to the present case which is still governed by the former s.37 by virtue of section 21 (e) of the Interpretation Act, 1937. Section19 of the Act of 1937 provides:

"(1) Where an Act of the Oireachtas repeals the whole or a portion of a previous statute and substitutes other provisions for the statute or portion of a statute so repealed, the statute or portion of a statute so repealed shall, unless the country has expressly provided in their repealing act, continue in force until the said substituted provision comes into operation.

4. Section 21 of the Act of 1937 provides:

"(1) Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention appears, such repeal should not –

(a) revive anything not in force or not existing immediately before such repeal takes effect or

(b) affect the previous operation of the statute or portion of a statute so repealed or anything duly done or suffered hereunder, or

(c) Affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the statute or portion of a statute so repealed which was committed before such repeal, or

(e) prejudice or affect any legal proceedings, civil or criminal, pending at the time of such repeal in respect of any such right privilege, obligation, liability, offence, or contravention as aforesaid.

It was submitted by counsel before the District Court that there was no evidence before that court that the request from the Government of the United States of America was sealed by the official seal of a Minister of State of the United States of America. Counsel referred to the fact that Mr. Adams admitted in evidence that he was not familiar with the signature of Mr. Powell or with the seal of the State Department and conceded that the document purporting to certify the other documents did not appear to have been signed by Mr. Powell. On this basis it was submitted by counsel that the documents did not satisfy the requirements of s. 37 and the court should not make an order for the appellant's extradition.

Counsel referred to s.10 of the Act of 1965 as amended by s. 11 of the Extradition (European Union Conventions) Act, 2001 providing for dual criminality of offences which provides, inter alia, as follows:

"10(1) Subject to subsection (2), extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty and for which, if there has been a conviction and sentence in the requesting country, imprisonment for a period of at least four moths or a more severe penalty has been imposed.

11. Section 11 of the Extradition (European Union Conventions) Act, 2001 amended Section 10 of the 1965 by, inter alia, the addition of a new subsection 4 which reads as follows:

(4) In this section "an offence punishable under the laws of the requesting country" means an offence punishable under the laws of the requesting country on

(a) the day on which the offence was committed or is alleged to have been committed, and

(b) the day on which the request for extradition is made,

(c) and cognate words shall be construed accordingly."

It was submitted by Counsel that because subs. 4 constitutes an amendment by way of an addition and not a repeal the provisions of s.21 (e) of the Interpretation Act, 1937 do not apply and the above subsection became operative from the 20^th March, 2002 by virtue of S.I. No. 85 of 2002. Counsel submitted that it is accordingly now an essential requirement of an application for extradition pursuant to Part II of the Extradition Act, 1965 that there be evidence that the offence for which extradition is sought were offences in the requesting country both on the date of the commission and the date on which the request is made. It was submitted by counsel in the present case that the request for extradition was made on 18^th January, 2002. Counsel submitted that there was no evidence, documentary or otherwise, before the court upon which it could be satisfied that the offences for which the appellant's extradition is sought were offences in the United States of America on 18^th January, 2002. It was submitted that para. 16 of the affidavit of Mr. Adams sworn on 10^th January, 2002, does not provide proof and he did not address this matter in his oral evidence. It was submitted accordingly that there has been a complete failure in proof of this statutory requirement and the court should therefore refuse to make an order for the appellant's extradition.

Counsel referred to s.13 of the Act of 1965 insofar as it provides for immunity in the case of revenue offences. It was submitted that the onus is on the Attorney General to prove that the offences for which the appellant's extradition is being sought are not revenue offences. Counsel submitted that para. 16 (a) of the indictment which refers to Medicare which is a federal government health insurance program the subject of the conspiracy in count 1 of the indictment, and the offences of international money laundering at counts 27 to 29,inclusive, of the indictment are offences depriving the United States of America of revenue by falsely making claims and also transferring money out of the country in breach of laws that prohibit and criminalise such transfer. It is submitted that the conduct in question is one which is capable of falling within the definition of "revenue offence" as defined in s.3 of the Act of 1965. It was submitted by counsel before the District Court that the Attorney General should have introduced evidence to show what offences are considered revenue offences under the laws of the United States of America to prove positively that the offences in question do not fall within the definition of a revenue offence in the Act of 1965. It was submitted by counsel that the evidence of Mr. Adams did not and could not constitute the evidence in question that the offences were not revenue offences under Irish law. It was further submitted that insofar as the District Court could not be satisfied that the offences at counts 1 and 27 to 29 inclusive are not revenue offences the appellant's extradition should be refused in respect of these offences since it is prohibited by law.

Counsel relied upon s.16 of the Act of 1965 which precludes extradition where a prosecution is pending in the State against the person claimed for the offence for which extradition is requested. It was submitted that the Attorney General failed to produce any evidence to establish to the satisfaction of the District Court that there was no prosecution pending in the State against the applicant for the offences for which extradition was requested. Mr. Adams gave evidence that, to his knowledge, there were no proceedings pending in any country outside the United States of America in respect of the charges upon which the appellant's extradition was being sought but it was submitted by counsel before the District Court that he was not competent to give such evidence in relation to the situation in Ireland. It was submitted that in these circumstances the court should refuse the extradition. It was next submitted by counsel on behalf of the applicant in the District Court that the provisions of s.18 of the Act of 1965, which provides that extradition should not be granted when the person claimed has, according to the law of either the requesting country or the State, become immune by reason of lapse of time from prosecution or punishment.

While Mr. Adams indicated to the District Court that the conspiracy to commit mail fraud came into being in 1993 and could have been prosecuted at that time and the law relating to limitation periods for the prosecution of crimes in the United States of America is "five years next after such offence shall have been committed" it was submitted by counsel that it could not be said that the Attorney General proved that S. 18 did not apply. Counsel submitted that while it was sought to prosecute the appellant for acts alleged to have occurred more than five years before the indictment was filed, it was submitted that Mr. Adams failed to produce or refer to any authority for his contention that conspiracies which commenced more than five years before could be prosecuted up to five years from the date of the last act in furtherance of the conspiracy. It was submitted to the District Court that it should refuse to make an order for the extradition of the appellant on all counts in the indictment which involved conduct which allegedly occurred prior to September, 1996.

Dealing with the rule of speciality, counsel referred in the District Court to s.20 of the Act of 1965 which provides as follows:

"20 (1) Extradition shall not be granted unless provision is made by the law of the requesting country or by the extradition agreement

(a) that the person claimed shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order, or otherwise restricted in his personal freedom, for any offence committed prior to his surrender other than for which his extradition is requested, except in the following cases-.....

(i) with the consent of the Minister, or

(ii) where that person, having had an opportunity to leave the territory of that country, has not done so within forty-five days of his final discharge in respect of the offence for which he was extradited or has returned to the territory of that country after leaving it, and

(b) that where the description of the offence charged in the requesting country is altered in the course of proceedings, he shall only be proceeded against or sentenced in so far as the offence under its new description is shown by its constituent elements to be an offence which would allow extradition.

(2) Notwithstanding anything in subsection (1) the fact that the law of the requesting country permits the taking of any measures necessary to remove the person any legal effects of lapse of time shall not of itself prevent his extradition.

(3) The consent of the Minister shall not be given unless a request for consent is submitted by the requesting country, supported by the documents mentioned in section 25 and a legal record of any statement made by the extradited person in respect of the offence concerned.

(4) The consent of the Minister shall be given if the offence for which it is requested is itself one for which there is an obligation to grant extradition.

Counsel indicated that Article XI of the Treaty on Extradition between Ireland and the United States of America goes further than the section and provides:

"A person extradited under this treaty shall not be proceeded against, sentenced, punished, detained or otherwise restricted in his or her personal freedom in the requesting state for an offence other than that for which extradition has been granted, or be extradited by that state to a third state …"

Counsel submitted before the District Court that no evidence had been tendered by the Attorney General as to the status or enforceability of the treaty provisions in the United States of America. He complained that there was no evidence before the District Court as to the application of the rule of specialty in the United States courts. It was submitted that what evidence there was before the District Court demonstrated that the law as administered by the judicial arm of Government does not provide for the rule of speciality. Counsel referred in the District Court to three cases coming before the United States courts which showed that the United States authorities felt free to add new counts if they believe that the extraditing state would consider them to be of the same character and that this approach had been consistently upheld by the courts. Counsel indicated that all three cases related to extradition to the United States. All the treaties referred to in the cases in question have provision for a rule of speciality and while not expressed identically to the rule of speciality governing the instant case, were all sufficiently similar to be of assistance. It was submitted that all the cases demonstrate that persons extradited to the United States from countries with treaties incorporating the rule of speciality can face and have faced trial for offences for which they have not been extradited or in respect of which their extradition has been refused. Counsel again referred the District Court to the U.S. Federal Sentencing Guidelines which it was submitted indicated that unindicted relevant conduct of an accused might provide a basis for punishment over and above base level sentence for the offence of which he had been convicted. It was indicated that Mr. Adams had given evidence to the District Court that the United States authorities would feel free to adduce evidence of losses sustained by persons other than those referred to in the indictments and not simply related to the named persons and that this might be given at the trial itself.

The case stated indicates that Mr. Adams was unable to give any assurance that the Federal Sentencing Guidelines could or would be modified in respect of the appellant or disregarded by the federal judge sentencing him. On the state of the evidence in the case it was submitted that the District Court must conclude that not only is there every risk that the appellant, if extradited, would be punished for conduct in respect of which he had not been extradited, but in fact the sentencing guidelines mandated that this be done. It was submitted that in the instant case the Attorney General had failed to demonstrate that the treaty requirements regarding speciality are likely to be complied with by the United States authorities. It was submitted that, upon the extradition of a person to the United States on specified charges, if the United States is indeed free to add offences to those in respect of which he has been extradited and to sentence him for conduct other than that in respect of which he was extradited, then the District Court must come to the conclusion that it has not been persuaded that the rule of speciality, as laid down in the Act of 1965, together with the benefit it provides, applies and accordingly an order for the appellant's release should be made.

Dealing with the matter of dual criminality as it relates to count no. 1. it relates to the aspects of mail fraud and heath care fraud, namely mail fraud up to August 1996 and the latter thereafter. It was submitted by counsel that from the evidence of Mr. Adams the jury could return only one verdict on this count. But that this included the conduct alleged against the accused which predated the enactment of the health care statute. It was submitted that a conviction by a jury on this count would give no indication as to whether they had found a conspiracy to violate the health care statute or the mail fraud statue. The case stated records the fact that Mr. Adams confirmed in evidence that he would be asking the jury to consider all of the evidence from 1993 to 1996 in support of the single count of conspiracy. It was submitted that in view of the non-criminality of health care fraud during the earlier period, the court could not be satisfied that the dual criminality tests as set out at s.10 of the Extradition Act, 1965 was satisfied as it related to this count.

With regard to counts 27 to 29, pertaining to money laundering charges, it was submitted that the acts if alleged against the appellant in these counts would not be criminal acts if done in the State, insofar as it was not shown that the acts were done for the purpose of avoiding prosecution for an offence or the making or enforcement of a confiscation order. It was submitted by counsel before the District Court that the Attorney General made no reference to this necessary element of the offence in the State. The case stated records the fact that counsel for the Attorney General submitted to the District Court that the acts alleged would be criminal if committed in the State as being in violation of s.31 (1) of the Criminal Justice Act, 1994 which provides as follows:

"A person shall be guilty of an offence if he-

(a) conceals or disguises any property which, in whole or in part, directly or indirectly represents the proceeds of drug trafficking or other criminal activity, or

(b) converts or transfers that property or removes it form the State, for the purpose of avoiding prosecution for an offence or the making or enforcement in his case of a confiscation order.

It is clear that an essential requirement of the conduct in the State would be that it was done for the purpose of avoiding prosecution for an offence or the making or enforcement… of a confiscation order. Counsel for the Attorney General has made no reference to this necessary element of the offence in the State. The acts alleged against Mr. Burns in these counts would not be criminal acts if done in the State and accordingly this court should refuse to make an extradition order in respect of these counts.

With regard to counts 2 – 15 of the indictment, reference was made to section 25 (b) of the Act of 1965 which provides as follows:

25.—A request for extradition shall be supported by the following documents—

     ( a ) …

     ( b ) a statement of each offence for which extradition is requested specifying, as accurately as possible, the time and place of commission, its legal description and a reference to the relevant provisions of the law of the requesting country;

Counsel before the District Court referred to the documents furnished by the United States Government in support of the extradition request and in particular to portions of the indictment which use words such as 'including but not limited to patients…' .

It was submitted before the District Court that the request for extradition had failed to comply with the statutory requirement because it had failed to sufficiently identify the offences alleged and accordingly that the District Court should not make the order sought for extradition.

It was further submitted before the District Court, with reference to count no. 1 of the indictment, that the acts alleged against the appellant in relation to this count alleged acts against four private medical insurance companies and one federal agency, namely the offence contrary to s. 371 of the United States code involving conspiracy to defraud private insurance companies and it was submitted accordingly that the court should refuse to make an order for extradition in respect of this count. It is clear that the submission in this regard was an act to defraud a private medical insurance company did not constitute an act to defraud the United States or any agency thereof.

Counsel before the District Court made reference to the provisions of S.I. 474 of 2001. It was submitted that the operative part of this order is article 3 which provides that Part II of the Extradition Act, 1965 shall apply to the countries set out in the table. It was submitted by counsel before the District Court that article 7 revoked the order which gave effect to the Treaty on Extradition between Ireland and the United States of America in 1987. Counsel referred to the fact that at page 218 of the table there was no reference to the application of part II to the United States of America. On this basis it was submitted that the District Court could not be satisfied that Part II of the Extradition Act of 1965 was ever applied to the United States of America and consequently that it applied to the application in question and on that basis it was submitted that the District Court must order the discharge of the appellant.

The case stated records in summary the submissions made by counsel for the Attorney General to the submissions advanced on behalf of the appellant as follows:

(i) The documents under seal have been proved in evidence and no contrary evidence has been called. There has been evidence that Colin Powell is a Minister of State and no evidence to contradict that has been called by the appellant. Accordingly the seal has been proved in that regard and the statutory consequences follow.

(ii) There was no evidence before the District Court that the offences in question were not offences at the time the request for extradition was made and that the District Court must act on the warrants which have been issued.

(iii) The only evidence before the District Court as to whether or not the offences in question were revenue offences was the evidence of Mr. Adams that they were not revenue offences. On this basis it was submitted that the District Court must act on his uncontradicted evidence in that regard. It was further submitted that there is nothing in the supporting documentation to suggest that the offences in question were revenue offences.

(iv) It was submitted that there was no evidence before the District Court that there was a prosecution pending against the appellant in this country. It was implicit in the evidence of Sergeant Michael Heffernan that there was no such prosecution pending because if there was, he would have arrested him in relation to it.

(v) The uncontradicted evidence of Mr. Adams, a United States criminal lawyer, that the limitation period for the prosecution of conspiracy offences runs from the date of the last act committed in furtherance of the conspiracy was sufficient to prove that the provisions of s.18 of the Act of 1965 do not apply.

(vi) In relation to the rule of specialty, it was submitted that it is contained in the Extradition Treaty between Ireland and the United States of America and that it was not for the District Court to consider the internal law of the United States of America as it applies to specialty. It was submitted that in the instant case there was no evidence before the District Court that the Government of the United States of America would not comply with the rule of specialty. It was further submitted that if there was evidence of continual breaches by the Government of the United States of America, the Minister for Justice would be constrained not to extradite persons to that country. It was further submitted as there was no evidence before the District Court that the appellant would be denied access to the courts in the United States of America to vindicate his rights regarding specialty, and that the extradition request should be granted. It was further submitted that the Attorney General would not make an application for the extradition of the appellant if he did not think that the United States Government would honour its treaty obligations regarding specialty. It was further submitted that the District Court is entitled to rely on the comity of nations in this regard.

(viii) With regard to the appellant's argument that under the United States Federal Sentencing Guidelines he could be sentenced for conduct in respect of which he had not been extradited, it was submitted that while that conduct could be considered, the appellant could not in fact be sentenced beyond the maximum sentence permissible. With regard to the United States authorities cited by counsel for the appellant in the District Court it was pointed out by counsel for the Attorney General before this court that none of these provisions was a decision of the United States Supreme Court.

(viii) While it was contended on behalf of the appellant that an essential requirement of the offence of money laundering in Ireland was that the defendant act for the purpose of avoiding prosecution for an offence or the making or enforcement in his case of a confiscation order, it was submitted that the offence does not need to be so particularised and that once there was sufficient evidence to charge the appellant in this jurisdiction, which it was submitted was clearly the case in light of the facts set out in the affidavit of Mr. Adams, there was sufficient evidence to prove correspondence.

(ix) With regard to the issue concerning the introduction of evidence pertaining to patients other than those specified in the counts of the indictment, it was submitted on behalf of the Attorney General before the District Court that there was nothing objectionable about the prosecuting authorities in the United States introducing other similar fact evidence in the cases against the appellant to establish a scheme.

(x) With regard to the submission pertaining to fraud or private companies, it was submitted before the District Court that it should not go behind the warrant issued by a court of competent authority in the United States in respect of the offence in question. It was submitted that if the appellant wished to challenge the statement of offence on the basis set out in his submission, he should have called evidence to so challenge it.

(xii) It was submitted by counsel on behalf of the Attorney General before the District Court that S.I. 474 of 2000 clearly applies Part II of the Extradition Act of 1965 to the United States of America.

The learned District Court judge indicates in the case stated that he was of the opinion:

(a) That the offences upon which the appellant's extradition was being sought met the test of dual criminality as set out in the case of Wyatt v. McLoughlin [1974] I.R. 378 and that they were offences on the day on which the extradition request was made.

(b) All the documents required by s.25 of the Extradition Act, 1965 had been furnished.

(c) S.I. 474 of 2000 applied Part II of the Extradition Act, 1965 to the United States of America.

(d) He was satisfied of the documents' authenticity.

(e) The appellant had been clearly identified as the person to whom the indictment referred.

(f) He was satisfied on the evidence of Mr. Adams that the offences were not revenue offences.

(g) He concluded that he was entitled to proceed on the basis of an assumption that the requesting state would act in good faith and that the fugitive would receive a fair trial in the courts of the requesting state. In this regard he relied on R. v. Governor of Pentonville Prison, ex parte Lee [1993] 1 WLR 1294.

(h) That it was appropriate for the Court to state that under s.26 of the Act of 1965, the Minister has a function in the process in that he might draw the attention of the requesting State to the issue of the defendant being exposed to greater penalty in the requested State than that applicable in this jurisdiction or indeed other matters as referred to herein as mentioned in the decision of Goff L.J., in the case of Nielsen (1984) 79 Cr.App.R. 14.

(i) The questions raised by the appellant concerning the application of the rule of specialty by the courts in the United States of America did not go far enough and he was satisfied that the rule of specialty applies in the instant case and that the appellant's right in that regard are enshrined in the laws of the United States of America and he could apply to court to remedy any breach of his rights in this regard.

(j) The extradition of the appellant was properly requested in accordance with s.29 of the Extradition Act 1965. Part II of the said Act applies in relation to the requesting country (United States of America), the extradition of the appellant was not prohibited and the relevant documents required to support a request for extradition under s.25 of the Extradition Act 1965 had been produced. On this basis he made the order as sought under s.29 of the Act of 1965.

Based upon these facts the learned judge of the District Court seeks the opinion of this court as to whether upon the foregoing facts, he was correct in holding against the appellant on each of the 11 submissions made and whether his determination was correct in point of law.

The appellant submits in the first place that the supporting documentation did not ground the warrant in this instant case. He further submitted that it had not been given to him until two months after the arrest and on this basis it was submitted that the delay in furnishing the documentation tainted all of the court proceedings.

The appellant submitted that the conspiracy to commit fraud charge does not indicate what type of fraud is contemplated. He further submits that the offences in the instant cases are not corresponding offences. In addition he submits that counts 26, 27 and 28 in the indictment constitute revenue offences.

The appellant refers to the authority of Attorney General v. Oldridge [2000] 4 IR 593 and submits that conspiracy to defraud will not constitute a corresponding offence to an offence in this jurisdiction. In particular the appellant submits that mail fraud is not a corresponding offence to any offence in this jurisdiction. The appellant further complains that the indictment rolls mail fraud and heath care fraud into one count. It was submitted by the appellant that these offences are not known in this jurisdiction.

The appellant refers to the five year limitation period with respect to offences and submits that the offences in question are barred by the passage of time.

The appellants further complains that with regard to counts 2 to 15 in the indictment the offences are not specified.

The appellant complains that he will be charged with additional offences if extradited to the United States and he repeats the points made before the District Court. He submits that the sentence guidelines in the United States are such that he may be punished for unindicted conduct. He complains that the Treaty of Extradition between the United States and Ireland is illegal insofar as the United States does not provide for the rule of speciality.

The appellant submits that the court should consider the internal law of the United States.

The appellant submits that the charges of money laundering against him are offences connected to a revenue offence in the United States.

With regard to S.I. no. 474 of 2000 it is submitted by the appellant that, insofar as the appellant submits, the extradition for offences which are unspecific with regard to the dates of the offences in question. Specific reference is made by the appellant in count no. 1 in his indictment and he submits that this fails to specify dates or times when the offences in question are alleged to have been committed or the places where the same were alleged to have been committed. He makes a similar submission with regard to counts 2 to 15 on the indictment insofar as it is submitted that the dates of the alleged offences are not referred to in the counts. It is further submitted that the places where the offences are alleged to have been committed are not referred to, nor is the maximum time, within each offence is alleged to have been committed, specified. Similar submissions are made in regard to other counts of the indictment including counts 27, 28 and 29 thereof, as well as the preceding counts on the indictment.

With regard to the correspondence of offences it is submitted by the appellant that doctors or chiropractors cannot commit the offences such as those charged against him in this jurisdiction.

The appellant submits that the true test of dual criminality has not been satisfied in the instant case.

In reply to the submissions as made by the appellant it is submitted by Patrick McCarthy S.C. on behalf of the Attorney General that there is no dispute with regard to the applicable law in this case. He submits that the offences in question might be looked at in the context of the time when the warrants were issued and the time when Mr. Adams gave evidence before the District Court. It is submitted that the delay complained of by the appellant is not an issue in the case stated herein.

Dealing with the specific points raised in the case stated it is submitted as follows:

1. With regard to the documentation furnished to the District Court, this confirmed that the statutory requirements were met. It is submitted that the United States documents were under seal and complied with s.37 of the Act of 1965, being documents certified or authenticated with the official seal of the Minister of the representing country. Reference is made to the evidence given by Mr. Robert Adams. Furthermore reference was made to s. 37 of the Act of 1965 which provides that documents supporting a request shall be received in evidence without further proof as certified by a judge as was done in the context of exhibit 2 in the instant case.

2. With regard to the second point raised in the case stated, namely, the requirements of dual criminality, it is submitted that the judge of the District Court found as a fact that on the evidence before him the offences were offences on the day in which the offences were committed and on the day on which the request was made. It was submitted that there was no disagreement as to the applicable law. On this basis it is submitted by counsel that the District Court was entitled to find on the facts in light of the evidence before it that the offences at issue were offences at the time when they were committed and that at the time when Mr. Adams was giving evidence in court to the effect that the charges in question had not been withdrawn.

3. With regard to the issue whether the offences in question constitute revenue offences, counsel for the Attorney General submits that the evidence before the District Court was to the effect that the offences in question were not revenue offences. Counsel submits that the appellant failed to contradict the evidence given by Mr. Adams in this regard

a. that the offences in question were not political offences nor offences connected with a political offence,

b. the offences were not under military law, which it is submitted appears from the context of the documents themselves, and

c. evidence before the District Court was that the applicant was an American citizen and it is submitted by reference to the context of the documents before the District Court that the offences in question could not be pending in this State insofar as they were not alleged to have been committed in this State.

4. Counsel refers to the fact that the evidence of penalty and the law of the United States was presented before the District Court by reference to the documentation as exhibited by the District Court judge. It is submitted that the exhibits were uncontradicted by any evidence of the appellant and that the evidence confirmed that there was no death penalty for any relevant offence.

5. It is submitted that the mere fact that the offences in question are alleged to have deprived the United States Government of money does not make the offences in question revenue offences. It is submitted that the indictment illustrates the means by which the money in question was obtained on foot of a conspiracy.

6. In regard to the lapse of time as contained at point 5 in the case stated, reference is made by counsel to the requirements of the s.18 of the Act of 1965. It is submitted that the evidence before the District Court established by reference to the affidavit of Mr. Adams that the conduct leading to the indictment commenced approximately from September, 1993 continuing through to May, 1997 when the appellant and the other defendants engaged in a scheme to defraud government sponsored and private health care benefit programmes by substituting fraudulent bills to health care benefit programmes which falsely represented that

1. the services in question had been provided by a medical doctors when in fact thy had been provided by chiropractors,

2. that the services rendered were medically necessary and

3. that the services were provided as described.

Counsel submits by reference to the evidence before the District Court that the same shows that the appellant and other defendants laundered the proceeds of the fraudulent scheme through another corporation to further promote the fraudulent scheme in question.

In this regard counsel submits that the evidence of American law and the statute of limitations was uncontradicted. In this regard he refers to para. 27 of the affidavit of Mr. Adams showing that American law had allowed prosecutions to commence within five years after the offences were committed. The evidence given was that the relevant dates were where when the offences continued and that the charges were filed within the prescribed five year limitation period.

Speciality and sentence.

It is submitted that the very notion of a treaty relationship between two sovereign states assumes and relies on the premise that the parties to the treaty will honour their obligation. It is submitted that in all extradition matters the trust in the requesting states' readiness to honour its commitments is fundamental to the principle of speciality.

Counsel refers to the fact that the District Court Judge referred to US v. Rauscher 119 U.S. 407 in support of the contention that habeas corpus was available and would apply in the event that additional charges were preferred against the appellant. Counsel further relies upon the fact that Mr. Adams stated in evidence that the rule of specialty applied in the instant case.

It is submitted that it is inappropriate for the courts in this jurisdiction to seek to determine how the sentencing judge in the requesting stage may decide on the appropriate punishment, within the range of punishment available for the crimes in question. It is submitted that the rule of speciality is satisfied if the requested State allows extradition for an offence or offences, the extradited person is prosecuted only for that offence or offences and the punishment does not exceed the maximum penalty available for that offence or offences. It is submitted that if those requirements are met, the decision as to what penalty to impose within the lawful limit, is strictly a matter for the requesting state. It is submitted that any interpretation which would allow the requested state to impose conditions to limit the breath of the factors that the sentencing judge has historically been free to consider is beyond the rule of the speciality.

Counsel refers to the sentencing judge's freedom to consider the background and conduct of the person charged, including prior convictions and other acts for which the person was not separately prosecuted, is an established part of the legal and constitutional tradition of the United States. It is submitted that there is no breach of the rule of speciality provided the sentences imposed only in respect of the offences for which the requested state has extradited the fugitive and the terms of imprisonment do not exceed the maximum penalty that the requested state understood to be available at the time of extradition.

Dual criminality.

7. Counsel points out that the case made by the appellant in this regard is in respect of count 1 and is centred on the offence of mail fraud being a constituent of the offence. It is submitted that by reference to the Treaty at paragraph 2 thereof and the judgments of the Supreme Court in Attorney General v. Oldridge[200] 4 I.R. 593 that these confirm that mail fraud, insofar as it may be an issue, is one to show federal jurisdiction and consequently no issue of dual criminality arises.

8. Correspondence

It is submitted that the judge in the District Court applied the appropriate law to the charges in respect of the conspiracy charges at counts 1 and counts 2 to 15 and counts 27, 28 and 29 of the indictment. It is submitted by counsel that the evidence before the District Court established that the offences in question were committed in West Virginia, where the accused resided and from where the indictment was issued.

It is submitted that the essential function of the Court in determining whether there is correspondence is as stated by Henchy J. in Hanlon v. Fleming [1981] I.R. 489 at p. 495 where he stated, inter alia, as follows:

"What is in issue…is whether the factual elements of the specified offence, if laid in this State (either precisely or substantially as set out in the warrant) as the particulars of an indictment for an offence …would be a correct basis for a finding of guilty by a correctly charged jury."

It is submitted that the particulars of an offence need not be exhaustive. Counsel submit that they are sufficient if they convey the nature of the charge. In this counsel refers to the case of Duff v. Sheehan (Unreported Supreme Court, Griffin J., 5^th July, 1976).

Counsel refers to the authority or Wyatt v. McLoughlin [1974] I.R. 378 and submits that this was the appropriate law insofar as it was applied by the District Court Judge. In that particular case Walsh J. stated inter alia as follows:

"The offence laid in the warrant sent here and endorsed for execution is so stated as to be recognisable as corresponding with an offence under our law (and) contains such essential factor and material as is necessary to recognise as to whether or not the acts complained of are ones which, if committed in this country, would amount to a criminal offence."

With regard to correspondence, counsel submits that with regard to count 1 corresponds with conspiracy in this jurisdiction insofar as the charge contained therein is one of conspiracy, being an agreement to do an unlawful act. Counsel refers to the fact that the detail of the conspiracy alleged is set out in the affidavit of Mr. Adams. With regard to counts 2 to 15 inclusive of the indictment, again counsel refers to the fact that the details of these allegations are set out in paragraphs 8, 9 and 10 of the affidavit of Mr. Adams. Counsel submits that these correspond with s.32 of the Larceny Act, 1916 insofar as they pertain to an offence of obtaining by false pretences.

With respect to counts 27, 28 and 29 of the indictment, being charges of money laundering, it is submitted that the offences in question correspond with the offences created by s.31 of the Criminal Justice Act, 1994. Counsel refers to the fact that the details of the offences as alleged against the appellant are set out in the affidavit of Mr. Adams at para. 27 thereof and in the affidavit of Jeffrey James at paras. 12 to 16 thereof.

Insofar as it was submitted by the appellant that he faced the possibility of having other charges preferred against him subsequent to his extradition, counsel for the Attorney General refers to the fact that Mr. Adams confirmed that the rule of speciality applied and that no additional charges would be filed in breach of the rule of speciality. Counsel submits, insofar as evidence of criminal acts relating to other patients might be considered, that the question of referring to additional evidence is something different to the preferring of additional charges. It is submitted that the additional evidence in this particular case is no different than the situation where similar fact evidence may be adduced to prove a case in this jurisdiction.

Statutory instrument no. 474 of 2000.

It is submitted that this was proved in evidence by handing in same to the District Court and that this establishes that Part II of the Extradition Act, 1965 applied to the United States of America as set out clearly in the Statutory Instrument.

Conclusions

While the appellant appeared before this court in circumstances where he was unrepresented this arose due to the fact that he has discharged three solicitors since this matter was before the District Court. I am satisfied that these circumstances arise of the appellant's own making and the case before this Court was adjourned at a stage when it was due for hearing to enable him to instruct his third firm of solicitors. At the stage the matter came before this court the appellant informed this court in the presence of his solicitor that he had discharged him of his services. In those circumstances I was satisfied that this court should not tolerate a situation where the case was unduly prolonged by the actions of the appellant himself.

It is clear that the appellant sought to address in the course of the submissions before this Court matters other than those set forth in the case stated itself. However it is proposed to address only those issues that arise on the case stated and which have been the subject matter of the questions posed by the District Court judge herein.

1. With regard to the documentation supporting the request for extradition herein I am satisfied that the District Court Judge had ample evidence before upon which he was entitled to conclude that the documentation supporting the request for extradition was sufficient to satisfy the requirements of s.37 of the Act of 1965 which provides as follows:

"37 A document supporting a request for extradition shall be received in evidence without further proof if it purports to be signed or certified by a judge, magistrate or officer of the requesting country and to be authenticated by the oath of some witness or by being sealed with the official seal of a minister of state of that country and judicial notice shall be taken of such official seal."

In so ruling I am prepared to accepted for the purposes of the argument, as submitted by counsel on behalf of the appellant in the District Court, that the amendment to s. 37 of the Act of 1965 effected by the Extradition (European Union Conventions) Act, 2001 which came in operation on 20^th March, 2002 by virtue of S.I. 85 of 2002 does not apply in the instant case.

The issue of dual criminality

Section 10 of the Act of 1965, as amended, provides as follows:

"10(1) Subject to subsection (2), extradition shall be granted only in respect of an offence which is punishable under the laws of the requesting country and of the State by imprisonment for a maximum period of at least one year or by a more severe penalty and for which, if there has been a conviction and sentence in the requesting country, imprisonment for a period of at least four months or a more severe penalty has been imposed.

(2) If a request is made for extradition in respect of an offence to which subsection (1) applies and the request includes also any other offence which is punishable under the laws of the requesting country, and of the State, but does not comply with the conditions as to the period of imprisonment which may be, or has been, imposed, then extradition may, subject to the provisions of this Part, be granted also in respect of the latter offence.

(3) In this section references to an offence punishable under the laws of the State shall be construed as including references to an act which, if it had been committed in the State, would constitute such an offence."

With regard to the amendment to the section effected by s.11 of the Extradition (European Union Conventions) Act, 2001 it would appear for the reasons submitted by counsel on behalf of the appellant with regard to the amendment to the provisions of s.37 of the Act of 1965 that this amendment had no application in the instant case. I am satisfied that the District Court judge was entitled to conclude upon the evidence before him that the offences in questions were offences at the time of the request for extradition and was entitled in those circumstances to act upon the warrants which had been issued. On this basis I am satisfied that the District Court judge was entitled to reject the submission advanced on behalf of the appellant in the District Court to the effect that there was no evidence, documentary or otherwise, before that Court upon which it could be satisfied that the offences for which the appellant's extradition was sought were offences within the United States of America on 18^th day of January, 2002.

With regard to the issue as to whether any of the counts in the indictment against the appellant relate to offences properly considered as revenue offences, I am satisfied that the definition relating to same provided for in s. 3 of the Act of 1965 is the appropriate yardstick by which this matter must be judged. This section provides, inter alia, as follows

3.-(1) In this Act

"revenue offence", in relation to any country or place outside the State, means an offence in connection with taxes, duties or exchange control but does not include an offence involving the use or threat of force or perjury or the foregoing of a document issued under statutory authority or an offence alleged to have been committed by an officer or the revenue of that country or place in his capacity as such officer."

I am satisfied that the District Court judge was entitled to rely upon the evidence of Mr. Adams in reaching his conclusion that the offences in question did not constitute revenue offences. Furthermore there was no material before the District Court such as to lead to the conclusion that the offences in question must be considered as revenue offences.

With regard to s.16 of the act of 1965 which provides as follows:

"16. Extradition shall not be granted where a prosecution is pending

in the State against the person claimed for the offence for which extradition is requested."

I am satisfied that the appellant has failed to show that the District Court judge erred in law in his conclusion that this section had no application to the facts of the instant case and there was no evidence before him of the existence of any prosecution pending in the State against the appellant for any of the offences for which his extradition was requested.

Lapse of time

While s.18 of the Act of 1965 provides as follows:

"18. Extradition shall not be granted when the person claimed has, accordingly to the law of either the requesting country or the State, become immune by reason of lapse of time from prosecution or punishment."

the issue before the District Court was whether the offences for which the appellant's extradition was sought were such that he had become immune by reason of the lapse of time from prosecution or punishment. I am satisfied that the District Court judge was entitled to rely upon the evidence of Mr Adams to the effect that the limitation period for the prosecuting of the conspiracy offences against the appellant runs from the date of the last act committed in furtherance of the conspiracy and that on the evidence before the District Court the appellant had not become immune by reason of the lapse of time from prosecution or punishment in the circumstances. It is clear that the five year period for the purposes of this case was a period of five years before the indictment was filed in the instant case.

The rule of speciality

Section 20 of the Act of 1965 provides as follows:

20.-(1) Extradition shall not be granted unless provision is made by the law of the requesting country or by the extradition agreement

(a) that the person claimed shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order, or otherwise restricted in his personal freedom, for any offence committed prior to his surrender other than that for which his extradition is requested, except in the following cases

(i) with the consent of the Minister, or

(ii) where that person, having had an opportunity to leave the territory of that country, has not done so within forty-five days of his final discharge in respect of the offence for which he was extradited or has returned to the territory of that country after leaving it, and

(b) that where the description of the offence charged in the requesting country is altered in the course of proceedings, he shall only be proceeded against or sentenced in so far as the offence under its new description is shown by its constituent elements to be an offence which would allow extradition.

(2) Notwithstanding anything in subsection (1), the fact that the law of the requesting country permits the taking of any measures necessary to remove the person from its territory or any measures necessary under its law, including proceedings by default, to prevent any legal effects of lapse of time shall not of itself prevent his extradition.

(3) The consent of the Minister shall not be given unless a request for consent is submitted by the requesting country, supported by the documents mentioned in section 25 and a legal record of any statement made by the extradited person in respect of the offence concerned.

(4) The consent of the Minister shall be given if the offence for which it is requested is itself one for which there is an obligation to grant extradition."

The evidence before this court shows that the treaty on extradition between Ireland and the United States of America applies the rule of speciality. This can be seen in article XI of S.I. 474 of 2000. Accordingly I am satisfied that there is provision made by the extradition agreement for the application of the rule of speciality in the instant case and in those circumstances I am satisfied that s.20 of the Act of 1965 is not such as to preclude the extradition of the appellant in the instant case. Without prejudice to this conclusion, I am satisfied that the appellant has failed to show any basis for contending that the United States will disregard the rule of speciality in the instant case. I am satisfied that any sentence to be imposed upon the appellant should he be convicted for any offence for which is extradition has being sought must be in respect of such offence, but the same must not preclude the court from having regard to the antecedence of the appellant in its ascertainment of the appropriate punishment in any given case.

With regard to the concept of dual criminality, reliance is placed by the appellant upon the provisions of s. 10 of the Act of 1965. I am satisfied that as regards count 1 of the indictment preferred against the appellant that he is confused in regard to what was decided by the Supreme Court in the case of Attorney General v. Oldridge [2000] 4 IR 593. It is not disputed in the instant case that the rule of dual criminality as provided for in s. 10 of the Act of 1965 applies in the instant case under the terms of the relevant extradition agreement between Ireland and the United States of America. The offence as set forth in count 1 of the indictment against the appellant is clearly one amounting to conspiracy to defraud, if committed in this jurisdiction. I am satisfied as regards the issue of mail fraud and health care fraud that this is essentially a matter going to establishing jurisdiction in the United States and that it is not necessary to address this matter in the context of the issue of dual criminality or correspondence. It is important to note that in the decision in Oldridge the Supreme Court concluded in effect that the District Court judge in that case had erred in his determination.

I am furthermore satisfied that the District Court judge was entitled to conclude that there was correspondence between the offences charged and the other counts in the indictment and offences in this jurisdiction corresponding to the activity alleged against the appellant. In this regard I am satisfied that counsel for the Attorney General was correct in submitting that the conspiracy to charge in count no. 1 corresponds with the conspiracy of this jurisdiction and counts 2 to 15 correspond to obtaining by false pretences under the Larceny Act, 1916. Further I am satisfied with regard to the counts at 27, 28 and 29 of the indictment pertaining to money laundering that these offences correspond with s.31 of the Criminal Justice Act of 1994. I am satisfied that the District Court judge had ample evidence before him from both Mr. Adams and Mr. James to enable him to so conclude.

With regard to the statement of offences reliance was placed before the District Court on the provisions of s.25 of the Act of 1965 insofar as it pertains to the documents to support a request for extradition. I am satisfied upon a reading of the documentation which was before the District Court that the District Court judge was entitled to conclude that the provisions of s.25 of the Act of 1965 had been satisfied in the instant case with regard to the statements of offences charged against the appellant.

I am satisfied that the appellant has failed to show any basis upon which his extradition for the offence set out at count no. 1 of the indictment should be refused in light of the facts as set forth on that count. This Court can only have regard to the statement of offences as set forth in the documentation before the court in the absence of any other evidence.

With regard to the issue as to whether Part II of the Act of 1965 applied to the United States of America, by reference to S.I. No. 474 of 2000 (incorrectly referred to as 2001 in the case stated herein) entitled The Extradition Act, 1965 (Application of Part II) Order 2000 and in particular by reference to the 9^th and 10^th schedules thereof, I am satisfied that the District Court judge was correct in concluding that the Statutory Instrument applied Part II of the Extradition Act of 1965 to the United States of America.

In conclusion I am satisfied for the reasons already stated by me herein that the District Court judge was correct in holding against the appellant on each of the 11 submissions made on his behalf in the District Court and that his determination was correct in a point of law in the circumstances.

For completeness sake, I am also satisfied that should the Extradition (European Union Conventions) Act 2001 applies in the instant case, that the application of same does not materially effect the conclusions in this case insofar as the said Act amends certain distinct provisions of the Act of 1965.