1. On the 26th November 1997, the District Court (Judge Gerard J. Haughton) heard an application pursuant to Part II of the Extradition Acts,[*2]

2. The consultative case stated came on for hearing in the High Court before Kearns J. and in a reserved judgment delivered on the 10th November 1999 he decided that the first question should be answered in the negative. He rejected an alternative submission that the District Judge had no jurisdiction to state the case.

3. The applicant has appealed to this court from the determination in the High Court that the first question should be answered in the negative. The respondent has not sought to argue in this court that the District Judge had no jurisdiction to state the case.[*3]

4. The application for extradition arises out of what is alleged to have been an extraordinarily elaborate scheme by a number of persons resident in the United States and elsewhere to defraud three banks. The allegation of the prosecution in the United States is that a woman named Ilene Moses, who was engaged in the clothing industry through her company SMS Inc., was the prime mover in the fraudulent scheme. She was said to have claimed that she had a “benefactor” in the clothing industry who was a member of a secret cartel that controlled the fashion industry in Europe and Asia and that, through this benefactor, she had access to businesses controlled by the cartel and a licensee agreement to sell its fashion designs. It is alleged that, in all, the defendants in the proceedings obtained 28 million dollars in loans secured on foot of assets which did not exist or, at least, did not exist in the form that the defendants claimed they existed.

5. One of the main features of the alleged scheme was a mythical business relationship between two companies called Jolland and Romtex AG, as a result [*4] of which large sums were purportedly owed by Romtex to Jolland. It was claimed by the prosecution that Romtex had no independent existence and that the alleged business transactions were wholly illusory. As a result of this, and other stratagems, it was said that the banks were induced to pay sums amounting to 28 million dollars to Moses and her associated companies.

6. These frauds were alleged to have been perpetrated from about September 1982 to March 1991. The prosecution say that between 1983 and 1988, one Laurence Anderson assisted in the fraudulent scheme by holding himself out as being in contact with the mythical cartel and being wholly independent of Moses and her companies: in fact, it was claimed, he was acting on the instructions of Moses. In the period from March 1988 to April 1989, it was alleged that the respondent presented himself to the lawyers acting for Moses and other interested parties as the representative of the cartel in succession to Laurence Anderson. Again, it is said that there was no cartel and that he was not in any sense independent and in fact acted on the instructions of Moses. During this latter period - described by the prosecution as “the lulling phase” - it is said that the respondent provided assurances to lawyers and other concerned persons at a stage when Moses or her associated companies had defaulted on the loans from the banks and effectively induced them to forebear from suing. It is alleged that, in addition to using his own [*5] name, he also used the names “J. Later” and “R. Schulz” to make it appear that Romtex AG was independent of Moses.

7. In what is described as the “superseding indictment”, the grand jury for the United States District Court of the Eastern District of Michigan (Southern Division) charged that

8. There follow in the indictment particulars of the allegedly fraudulent scheme. Under the heading [*6]

9. In his written judgment, the District Judge said that he could find no statutory equivalent in Ireland to the statutory offences in the United States with which the respondent was charged. It was for that reason that he was of the view that the respondent should not be extradited. In the High Court, it was accepted by counsel for the Attorney General that the only criminal offence known to Irish law which could be regarded as corresponding to the offences with which the applicant was charged was that of conspiracy to defraud, [*7] contrary to common law. While it was accepted that the respondent, to the extent that he was involved, had joined in the fraudulent scheme, if such it was, only after the money had been obtained from the banks, it was submitted that his alleged activities during the “lulling phase” were essential to the success of the fraudulent scheme and, if proved, would clearly establish the ingredients of the common law offence of conspiracy to defraud accepted in Irish law. That argument was rejected by the learned High Court judge, but he also found against the applicant on another ground, i.e. that, under the relevant provisions of the Agreement on Extradition between Ireland and the United States (known as the Washington Treaty) an offence is to be an extraditable offence only if it is punishable under the law of both countries by imprisonment for a period of more than one year or by a more severe penalty. The trial judge said that, since there was no prescribed minimum or other penalty for the offence of conspiracy to defraud contrary to common law, that requirement had not been met. Counsel for the respondent has not sought to stand over that finding in this court.

10. Section 8(1) of the Extradition Act, 1965 (hereafter “the 1965 Act”) provides that

11. By virtue of the Extradition Act, 1965 (Part 2) (No. 22) Order 1987 (S.I. No. 33 of 1987), the Washington Treaty between Ireland and the United States was, in accordance with these statutory provisions, given the force of law in Ireland. Article I of the Treaty provides that

12. Article II provides as follows:

13. The punishment threshold, accordingly, provided for in the 1965 Act is lower than that provided for in Article 2 of the Washington Treaty. Where Section 10 of the Act is the only applicable provision, a person can be extradited provided the relevant offence is punishable by imprisonment for at least one year. Under Article 2, he can be extradited only where the relevant offence is punishable by a period of more than one year. While the latter was the relevant provision in the present case, it is clear that, whichever is applied, the threshold requirement was met: the relevant offence was punishable by imprisonment for a period of more than one year. The offences with which the respondent is charged in the “superseding indictment” each carry a maximum penalty of five years imprisonment in the United States. What is submitted to be the corresponding offence in Ireland, i.e. conspiracy to defraud, is a common law misdemeanour which is punishable by imprisonment for life or any lesser term. In these circumstances, counsel for the respondent properly conceded that the finding of the learned High Court judge that the requirements of Article 2 of the Washington Treaty had not been met in this context could not be supported.

14. The applicable law as to the second ground on which the learned High Court judge found in favour of the respondent was stated as follows by [*12]

15. Barrington J. in The State (Gilliland) .v. The Governor of Mountjoy Prison (1986) JR 381 at p. 387:-

16. Further guidance as to the applicable law is to be found in the following passage from the judgment of Henchy J. speaking for this court in Hanlon .v. Fleming (1981) IR 489 at p. 495:-

17. In this case, the acts alleged to have been committed by the respondent and which, it is said, formed part of the scheme to defraud the banks are alleged to have been committed by the use of the mails or other facilities affecting interstate or foreign commerce. It is clear, however, from the terms of Article 11.2(b), already quoted, that the charge is laid as one of “wire fraud” or “mail fraud” simply for the purpose of establishing jurisdiction in a United States federal court. It is also clear that, at least in respect of the period prior to the “lulling period”, the acts charged against the defendants would correspond in Irish law to the offence of obtaining money by false pretences.[*14]

18. It is accepted on behalf of the applicant that the acts alleged against the respondent do not amount to obtaining money by false pretences, since he did not become involved in the alleged scheme to defraud until the lulling phase. It is, however, submitted that the offence with which he is charged, of acting in concert with other named persons to carry out specified acts for the purpose of executing the alleged fraudulent scheme, constitute the offence of conspiracy to defraud which, it is said, is an offence under Irish law.

19. That offence was defined in Scott .v. Metropolitan Police Commissioner (1975) AC 819 as

20. In their recently published work on “Criminal Liability”, Professor Finbarr McAuley and Mr. Paul McCutcheon, while acknowledging that the definition of conspiracy to defraud is “undoubtedly hydra-headed”, add

21. In the High Court case of Myles .v. Sreenan [(1999) 4 I R 294] , Geoghegan J. rejected an argument that the offence had not survived the enactment of the Constitution, stating

22. I would respectfully agree with that statement of the law. It has, however, been urged in this case that since the charge against the respondent is that he became involved in the allegedly fraudulently scheme only during the lulling phase, the allegations against him, if proved, would not establish that he had participated in the conspiracy, if such it was, to carry the scheme into effect. That proposition is not, in my view, supported by either principle or authority. The acts with which the respondent is charged were, according to the case put forward on behalf of the prosecution, an essential feature of the allegedly fraudulently scheme: the banks, it is said, were induced at least in part by the respondent’s actions not to call in the loans which they advanced and hence, it is said, he played an essential part in the continuing conspiracy to defraud the banks. If that allegation is well founded, he would properly be [*16] described as having participated in the conspiracy, even though his role was confined to lulling the banks into a false sense of security. As Coleridge J. put it in his direction to the jury in Reg .v. Murphy (1837) 8 CNP 297:-

23. That was described by Viscount Dilhorne as a correct statement of the law in Reg .v. Doot [(1973) AC 807 at p. 823].

24. I would allow the appeal and substitute for the order of the High Court an order that the questions in the case stated should be answered as follows: