High Court of Ireland Decisions

 


HC199/04

THE HIGH COURT

[2003 No. 7 E.X.T.]

[2003 No. 8 E.X.T.]

BETWEEN

THE ATTORNEY GENERAL

APPLICANT

- and - CHARLES ASHLEIGH NICHOLSON AND RUTH ELLEN ASHLEIGH NICHOLSON

RESPONDENTS

JUDGMENT of Mr. Justice de Valera given on the 4^th day of May, 2004.

This is an application pursuant to s.47 of the Extradition Act, 1965 (as amended) by the Attorney General for an Order of Rendition in respect of warrants issued at the Crown Court at Derby, England in relation to the respondents Charles and Ruth Ellen Ashleigh Nicholson. The warrant in respect of Charles Ashleigh Nicholson states, inter alia,

"that he, together with Ruth Ellen Ashleigh Nicholson, between the 20^th day of May 2001 and the 29^th day of May 2001 at Essex and elsewhere in England and Wales, with the intent to deceive, furnished a document, namely a Value Added Tax Return which was false in a material particular in that it stated that an amount of £100,835 was repayable in respect of Value Added Tax paid by Torrance Whittier Marketing Group Limited, where no such amount was due.

Contrary to s. 72(3)(a) of the Value Added Tax Act, 1994".

The warrant for Ruth Ashleigh Nicholson is in similar terms with a different sentence imposed.

Both respondents had appeared before the Crown Court at Derby, for the first four days of their trial but did not appear for their fifth trial day and were convicted and sentenced in their absence.

Mr. Charles Ashleigh Nicholson was sentenced to imprisonment for 4½ years.

Mrs. Ruth Ellen Ashleigh Nicholson was sentenced to imprisonment for 3 years.

Counsel for the respondents accepted at the commencement of the hearing before this court that the respondents were accepting the validity of their arrest and identification bringing them before the court.

Prior to the hearing in this court which commenced on the 20^th August 2003 the respondents had sought to have the proceedings under s.47 as aforesaid struck out or dismissed on the grounds that the proceedings had not been commenced by summons or any formal document. This application was heard by Mr. Justice Peart. This application was ussuccessful and the subsequent Appeal to the Supreme Court failed.

An application for habeas corpus by the respondents was also refused.

One effect of these decisions is that the Attorney General's application came before this court devoid of any written indications of the relief being sought.

The Attorney Generals application was initially opened by counsel on the basis that there were six principle headings pursuant to which the application against the respondents for rendition should be considered.

These headings were:

(1) Correspondence.

(2) Judicial Warrant.

(3) Endorsement of the Warrant.

(4) Identification.

(5) Retrospection.

(6) Revenue offences.

Subsequently counsel for respondents, Dr. Ford, pointed out that there were additional terms of imprisonment in respect of both respondents which would be imposed if the respondents were extradited to the United Kingdom. These additional terms of imprisonment are recited in the respective warrants and are, for Mr. Charles Ashleigh Nicholson 365 days for breach of licence and for Ruth Ellen Ashleigh Nicholson 9 months for a previously suspended sentence.

It was indicated at one point in the proceedings by counsel for the respondents that the respondents wished to institute proceedings pursuant to s.50 of the Extradition Act 1965 (as amended), and an adjournment was granted for this purpose but, on the adjourned date, counsel for the respondents indicated it was not intended to proceed with the s.50 application.

Following further argument and submissions counsel for the applicant, the Attorney General, reduced his argument to three questions and I am satisfied that the matter can appropriately be considered under these headings:

(1) Is there Correspondence between the offence set out in the warrant and an offence in this jurisdiction?

(2) Can rendition be ordered in respect of a revenue offence?

(3) Can rendition be ordered when additional sentences of imprisonment will be imposed on the respondents upon their return to the United Kingdom?

Correspondence

Section 42(2) of Extradition Act, 1965, as amended by the insertion of s.26 of the Extradition (European Union Convention) Act, 2001 states:

"for the purposes of this part, an offence under the law of a place to which this part applies corresponds to an offence under the law of the State where the act constituting the offence under the law of that place would, if done in the State constitute an offence under the law punishable

(a) on indictment

or

(b) On summary conviction by imprisonment for a maximum term of not less than six months or by a more severe penalty."

I accept counsel for the applicant's argument that there is correspondence between these offences.

The Taxes Consolidation Act, 1997 s.107(a)(2) states:

"a person shall, without prejudice to any other penalty to which the person may be liable, be guilty of an offence under this section if the person -

(a) knowingly or wilfully delivers any incorrect return, statement or accounts or knowingly or wilfully furnishes any incorrect information in connection with any tax.

(b) Knowingly aids, abets, assists, incites or induces another person to make or deliver knowingly or wilfully any incorrect return, statement or account in connection with any tax,

(c) Claims or obtains relief or exemption from, or repayment of, any tax being a relief, exemption or repayment to which, to the persons knowledge, the person is not entitled,

(d) Knowingly or wilfully issues or produces any incorrect invoice, receipt, instrument or other document in connection with any tax."

In particular subsections (a) and (d) describe the ingredients of offences which correspond to the offences for which the respondents were convicted.

I am satisfied, as submitted by counsel for the applicant, that "knowingly or wilfully" must encompass "with intent to deceive" and that there is, therefore, the necessary correspondence between the offence for which the applicants extradition is being sought that is the United Kingdom Value Added Tax Act, 1994 s.72 (3)(a) and the Taxes Consolidation Act, 1997 s.1078(2)(a).

I also accept that "a Value Added Tax Return" as specified in the warrant does correspond to the classes of documents set out in subsection (d) of s.1078(3) of the Taxes Consolidation Act, 1997.

Counsel for the applicant has properly conceded that subsections (b)and (c) do not apply.

Revenue Offence.

I also accept counsel for the applicant's submissions in this regard.

The application comes before the court pursuant to a s.47 application i.e. an application pursuant to s.47 of the Extradition Act, 1965 (as amended).

In order to raise the defence of "a revenue offence" it is necessary to proceed under s.50 of the said act, and despite a specific indication during the course of the hearing that such an application would be made by the respondents this was not proceeded with (and I note counsel for the applicant does not contend that such an application cannot now be made).

Unless and until such an application is made it would be inappropriate to make any finding on the submissions under this heading in these proceedings.

The additional sentences

It appears on the face of the warrant that the applicants if returned to serve the sentences imposed for the offence contrary to s.72(3)(a) of the United Kingdom Value Added Tax Act, 1994 would also be required to serve additional sentences in respect of other convictions.

I accept counsel for the respondents submission that these additional sentences do not arise from offences specified in the warrant as provided under s.41(3) of the Extradition Act, 1965 nor is there any evidence of correspondence to offences in this jurisdiction.

Furthermore the affidavit furnished on behalf of the applicant by Tiffany Jones of the Solicitors Office of Her Majesty's Customs and Excise which superseded any undertakings given previously makes it quite clear that if the respondents are extradited to the United Kingdom and lodged in prison the only action that would be taken by the United Kingdom authorities is to "communicate" with the prison authorities.

The Governor of the prison or prisons concerned or similar authority would have a valid warrant lodging the respondents in his or her prison and I am not satisfied that a "communication" from H.M. Customs and Excise without some rule or formal procedure would be sufficient to ensure that these additional terms of imprisonment, over and above those specified in the convections pursuant to s.72(3)(a) of the Value Added Tax Act, 1994 would not be served.

I am not in a position to construe the phrase "dealt with" contained in s.4(1) of the United Kingdom Backing of Warrants (Republic of Ireland) (Rule of Speciality) Order of 1924 but this very ambiguity means that I should resolve it, if necessary, in favour of the respondents.

Accordingly I will not make the order sought by the applicant.