Supreme Court of Ireland Decisions

A.G. v. Dyer [2004] IESC 1 (16 January 2004)

 


THE SUPREME COURT

Record No. 150/03

Keane C.J.

Fennelly J.

McCracken J.

BETWEEN

THE ATTORNEY GENERAL

Applicant/Respondent

and

SCOTT DYER

Respondent/Appellant

JUDGMENT delivered on the 16th day of January 2004 by FENNELLY J. [Nem Diss]

This appeal concerns the issue of double criminality in an extradition case. The Appellant was brought before the High Court, pursuant to the provisions of Part III of the Extradition Act, 1965 for an order that he be delivered by way of extradition to the police of the Island of Jersey on foot of a number of warrants issued in that jurisdiction. The President of the High Court, Finnegan P, in a judgment dated 26^th March 2003, made the orders sought.

The judicial authorities of Jersey issued twenty seven warrants for offences which have been described as criminal fraud, though that description does not appear on the face of the warrants. Twenty four of these were in similar form and identical legal issues were raised. One was for an attempt to commit a similar offence. It was not contested that an attempt to commit a corresponding offence would correspond to an offence contrary to Irish law; no issue concerning this arises on the appeal. The Attorney General did not pursue the application in respect of the remaining two warrants. Thus orders were made on foot of twenty five warrants.

The following statement taken from one of the warrants is sufficiently representative of the twenty five for the purposes of the legal issues which are raised. It is alleged that the appellant:

"On or around December 1997, in the Island of Jersey obtained from Runamoke Limited payment for the total sum of £3,200, for the benefit of St. Bernard's Garage and Car Hire Limited trading as Holiday Autos, by falsely pretending that a Cagiva Moke motor vehicle registration no. J72522, the property of G de Z Investments Limited, was the property of the said St. Bernard's Garage and Hire Car Limited, trading as Holiday Autos. Contrary to common law."

The principle of double criminality is stated by section 47(2) of the Extradition Act, 1965 as follows:

"An order shall not be made under subsection (1) if it appears to the Court that 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 at least six months."

The Act of 1965 contained no further definition of the notion of correspondence.

However, section 26 of the Extradition (European Union Conventions) Act, 2001 inserted the following subsection into section 42 of the Act of 1965:

"2) 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 of the State punishable—

(a) on indictment, or

(b) on summary conviction by imprisonment for a maximum term of not less than 6 months or by a more severe penalty.

    (3) For the purposes of this Part, an offence specified in a warrant corresponds with an offence under the law of the State if—

(a) the act constituting the offence so specified would, if done in the State on the day the warrant is produced under section 43(1)(b), constitute an offence under the law of the State, or

(b) in the case of an offence so specified consisting of one or more acts including any act committed in the State, such act constituted an offence under the law of the State on the day on which it was committed or alleged to have been committed."

The only challenge to the extradition applications related to the issue of double criminality. The Appellant argued that the offence specified in the warrant does not correspond with an offence in the law of the State. Two offences created by statute were offered by the Attorney General as candidates for the role of corresponding offence. They are respectively:

1. An offence under section 32 of the Larceny Act, 1916 as amended by section 9 of the Larceny Act, 1990:


"32 Every person who by any false pretence —

(1) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or

(2) with intent to defraud or injure any other person fraudulently causes or induces any other person

(a) to execute, make, accept, endorse or destroy the whole or any part of any valuable security; or

(b) to write, impress, or affix his name or the name of any other person, or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security;

shall be guilty of a misdemeanour and on conviction thereof liable to imprisonment for any term not exceeding ten years."

2. An offence under section 10 of the Criminal Justice Act, 1951:

"A person who by any false pretence, with intent to defraud obtains anything capable of being stolen or causes it to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person, shall be guilty of a misdemeanour and on conviction shall be liable to penal servitude for a term not exceeding five years or to imprisonment for a term not exceeding two years."

The crucial point about each of these provisions is, of course, that the proscribed acts must be committed "with intent to defraud." It is not disputed on behalf of the Attorney General that an indictment grounding a prosecution for such an offence must allege "intent to defraud." The specimen form of indictment for a charge under the first of these provisions as set out in the schedule to the Criminal Justice (Administration) Act, 1924 contains the words, "with intent to defraud."

In the absence of these words from each of the warrants, the Attorney General relied on an affidavit sworn by Michael St. John O'Connell, who describes himself as "an Advocate of the Royal Court of the Island of Jersey" and as having held this qualification since 1987. He says that he was appointed Crown Advocate in 1999. Mr O'Connell deposes as follows:

"…, the elements in Jersey law that the prosecution must prove, in order to establish criminal fraud are as follows:

It is necessary to show that the Defendant had deliberately made a false representation with the intention and consequence of causing thereby actual prejudice to someone and actual benefit to himself or another. Jersey law is clear that the intent to defraud is defined in this manner."

He also states: "There is no requirement in Jersey law to set out the requisite mens rea in the indictment." An exhibit to the affidavit consists of a judgment of the Court of Appeal of Jersey delivered in 1992 and containing an extensive review of the law of criminal fraud in that jurisdiction. It is clear from this judgment that an essential ingredient of the offence is proof that the accused had the intention of causing "actual prejudice to someone and actual benefit to himself or somebody else," preferring this formulation to the use of the term "intent to defraud" essentially because this would, in some measure, beg the question.

The Appellant made three inter-related points, to wit: that Mr St. John O'Connell's affidavit should not be considered, as he had not established that he was a competent expert in the law of Jersey; that the learned President was not entitled to have regard to the evidence of Mr St. John O'Connell for the purpose of explaining the need to prove "intent to defraud" in the law of Jersey and thus determining the issue of correspondence; that this evidence does not, in any event, show that the Appellant is charged, as an element of the offences, with having an intent to defraud.

The learned President, having reviewed the authorities rejected each of these submissions and made the orders sought.

The Appellant reiterates the same three points in his submissions on the appeal brought to this Court by virtue of section 47(5) of the Act of 1965 as amended by section 20 of the Act of 2001.

The point about the competency of Mr St. John O'Connell is, in my view, without merit. He has deposed that he has been an Advocate of the Royal Court of the Island of Jersey since 1987 and a Crown Advocate since 1999. I am satisfied that the learned President was correct in holding that "advocate" is a word in ordinary use in the English language and that, in the absence of contrary evidence that was sufficient to qualify Mr St. John O'Connell as an expert in the law of Jersey. It was not necessary that he furnish evidence of any particular or special expertise.

The principal point is the substantive one of whether the warrants, coupled with the evidence of Mr St. John O'Connell, constitute sufficient proof that the offences with which the Appellant is charged correspond with offences under Irish law. In essence, the Appellant submits that correspondence can be inferred only from the words used in the warrant, that the inquiry is conduct-based and does not refer to the legal or juristic character of the offences in the respective jurisdictions and that evidence such as that of Mr St. John O'Connell is not admissible to explain the nature of the offences charged. Finally, it is submitted that, even with the benefit of the evidence of Mr St. John O'Connell, the Attorney General has not established that the Appellant is charged with having the necessary intent to defraud.

The Act speaks not of double criminality, but of correspondence of offences. Whether the offence alleged by the requesting state corresponds with an offence against the law of this State might, in theory, be determined in either of two ways. Firstly, our courts might have to inquire into the degree of correspondence between the juristic elements of the offences as respectively defined in the laws of the two jurisdictions. Secondly, it might suffice to show that the acts alleged by the requesting state against the requested person would, if proved, amount to an offence of the required degree of gravity in the law of this State. Thus, there are two closely connected but, nonetheless, distinct questions, namely whether the inquiry as to correspondence is concerned with the juristic character of the offence or the facts alleged, but also as to the material which the courts here are to consider when deciding that issue.

In State (Furlong) v Kelly [1970] I.R.132, O'Dalaigh C.J., at page 136 of his judgment, approached the matter as one which concerned whether "there is under the law of the State any offence corresponding to the offence specified in the warrant." He analysed in detail the respective provisions of the (English) Theft Act, 1968 and the Larceny Act, 1916 as then in force in the State. He said that the purpose of section 47 of the Act of 1965 was "to ensure that no one in this jurisdiction shall be ordered to be delivered up to be extradited in respect of an offence alleged to have been committed in England etc. unless it is shown that the offence in question corresponds to an offence under the law of the State, that is to say that he could, if he had committed the same acts in this jurisdiction, have been charged in respect thereof."

O'Dalaigh C.J. then contrasted the parallel provisions of Part II of the Act, particularly the provision in section 10, substitution-section 3 that references in that section 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 an offence."(emphasis added.) It is apparent, therefore, that O'Dalaigh C.J. conceived the inquiry into correspondence in terms of the legal elements of the offences created under the laws of the respective jurisdictions. Whatever force the reference to section 10(3) of the Act of 1965 had, at the time of the judgment in Furlong's case, it must be greatly diminished by the fact that, since 2001 a statutory definition of correspondence by reference to "the act constituting the offence" specified in the warrant.

Walsh J, as the learned President has correctly said, adopted a different approach. He quoted his judgment in extenso. Walsh J said, to begin with that he did not "for a moment think that the Act ever contemplated that a District Justice or indeed the High Court would be called upon in such cases to construe foreign law and indeed it would be manifestly impracticable to expect every District Justice in the country to undertake such a task even if he were competent to do so." The key part of that judgment is, in my view, the following:

"The function of the District Justice is to examine the documents set before him and to see whether there is a sufficient statement of the particulars of the ingredients of the offence alleged to enable him to bring to bear on them his knowledge of the law of this State so that he may determine whether the acts alleged against the prisoner would constitute an offence under the laws of this State. It appears to me to be necessary that, before a District Justice can enter upon his determination of this matter, either the warrant itself must contain sufficient particulars of a factual nature setting out the ingredients of the offence alleged or it should be accompanied by an affidavit by the prosecuting authority, or a duly authorised officer of the prosecuting authority, setting out the particulars of the facts complained of --somewhat as the particulars of offences appear in a count on an indictment under our law."

Leaving aside, for the moment, then any question of whether and in what circumstances evidence of foreign law may be given, the basic proposition is that the Irish court should look at the "acts alleged against the prisoner." Although this approach differs from that of O'Dalaigh C.J., it should not be overlooked that Fitzgerald J thought that whether there is "a corresponding offence in this country should be tested in relation of the action of the person accused."(page 146). In similar vein, McLoughlin J said (at page 148):

"He [meaning the judge considering the application] is entitled to look at the description of the offence in the foreign warrant to ascertain if the offence so described is one which does not correspond with an offence under the law of this State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months."

Budd J expressed his agreement with both O'Dalaigh C.J and Walsh J, but it must be remembered that the cases was really decided, not on the issue of correspondence, but on the issue of the insufficiency of the "convenient point of departure" specified in the order made by the District Court. Properly considered, therefore, I belief that Furlong's case stands for the proposition that the correspondence inquiry depends on the facts alleged in the warrant. It is true that Walsh J observed that the word "steal" could not be divorced from its context in the English Theft Act of 1968 and that accompanying evidence might be necessary to show that the offence alleged to have been committed against English law implied the performance of the individual acts necessary to constitute an Irish offence of similar gravity.

This basic approach in Furlong's case has been followed by the Courts consistently ever since. Walsh J in Wyatt v McLoughlin [1974] I.R. 379 at page 395 declared that the courts here, "in proceedings such as these [are] not at all concerned with the construction of English law." He continued:

"It appears to me to be quite clear that the wording of the charge as laid in the warrant identifies it with the offence of simple larceny in this country. It is quite clear that the charge was drafted by following, word for word, what I said such a warrant ought to contain in the course of my judgment in Furlong's Case at p. 144 of the report. Whether such wording is or is not necessary in England is a matter the Court need not concern itself with and is quite irrelevant. The District Court here has to be satisfied that an offence laid in a warrant sent here and endorsed for execution is so stated as to be recognizable as corresponding with an offence under our law. It must, therefore, contain such essential factual material as may be necessary to recognize whether or not the acts complained of are ones which, if committed in this country, would amount to a criminal offence."

Fitzgerald C.J. and Budd J agreed. Henchy and Griffin JJ wrote independently to the same effect.

In Wilson v Sheehan [1979] I.R. 423, an English warrant alleged that the plaintiff "did rob Michael Barker of £281 in cash and immediately before doing so used force, to wit, personal violence, on the said Michael Barker" contrary to section 8 of the Theft Act, 1968. While the District Court had made the order for rendition, the High Court judge expressed himself uncertain, in the context of the reference to the English statute, of the meaning of the words used in the warrant to describe the offence there specified. Being of the opinion that the offence so specified did not correspond to an offence under the law of the State, he ordered the plaintiff's release. On the appeal to the Supreme Court in that case, Henchy J, with whom O'Higgins C.J. and Griffin J agreed, was at pains to restate the basic principle in respect of the examination of correspondence and to extinguish any misunderstandings arising from the earlier cases. The following passage appears at page 428 of his judgment:

"What was being stressed in that passage [from Wyatt's case] was that the required correspondence of offences is not shown by the mere proof that the offence specified in the warrant has the same name as that of an offence in this State. It is the essential factual ingredients that determine whether two offences have the necessary correspondence. If an offence is specified in the warrant merely by the name by which it is known in the requesting State, it does not follow that because there is an offence in this State which goes by the same name, the two offences correspond with each other. They may be crucially different in essence. To show the necessary correspondence -- as was held in The State (Furlong) v. Kelly and in England in R. v. Metropolitan Police Commissioner, Exp. Arkins, dealing with the corresponding provision in the Backing of Warrants (Republic of Ireland Act) 1965 -- it is necessary for the specification of the offence in the warrant (or in the warrant and its attendant documentation) to go further and identify the offence by reference to the factual components relied on; it is only by looking at those components that a court in this State can decide whether the offence so specified (regardless of what name is attached to it) would constitute, if committed in this State, a corresponding criminal offence of the required gravity.

When it comes to the words in the warrant by which the factual content of the specified offence is identified, the correct rule is that those words should prima facie be given their ordinary or popular meaning unless they are used in a context which suggests that they have a special signification. The reason for that rule is that, when statutes or other public or formal documents directed to the public at large, or to any member of the public at large, are being interpreted, it is to be assumed, in the absence of a counter-indication, that the words used in such document have been used in their popular rather than in any specialised or technical sense.

So also with the particulars of an offence in a formal written charge. The primary purpose of the particulars is to enable the member of the public who is being charged to identify the conduct that is being alleged against him as a criminal offence. Rule 4(3) of the rules in the first schedule to the Criminal Justice (Administration) Act, 1924, provides that the statement of offence in an indictment "shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence." Therefore particulars should be treated, prima facie at least, as using layman's language. If that were not the rule, then virtually every word and expression in the particulars of an offence in a foreign warrant would require to be elucidated by expert evidence as to its possible meaning in the law of the requesting State."

That now very consistent line was maintained by Henchy J in Hanlon v Fleming [1981] I.R. 489, where, again with the agreement of O'Higgins C.J. and Griffin J, he repeated:

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

In the present case, the approach so consistently laid down in these cases runs into the difficulty that the absence of any allegation of "intent to defraud" would appear to render the warrants deficient for the purposes of extradition. The question which then arises is whether evidence is admissible to explain the relevant provisions of Jersey law so as to fill the gap. The cases which I have cited contain several references to the possibility of resort to proof of foreign law. As already pointed out Walsh J in Furlong's case contemplated the possibility that evidence of English law might have to be introduced even to explain such commonplace terms as "steal." He appears to have modified his position on this point in Wyatt's case, where, as already noted, he said that that the court was "not at all concerned with English law." Nonetheless, in the same case, he noted that "the same name may be used in this country as the name of a crime, because the acts complained of, although having identical names, may constitute quite different crimes in different countries." However, in the following paragraph, he appears to disavow any notion that the court is required to embark on an examination of the English statute, going so far as to disapprove of the fact that the High Court judge had done so. In any event, the matter has been clarified in the later cases. The approach of Henchy J, in Wilson v Sheehan, was that, in the absence of expert evidence, the District Court would be debarred from considering the contents of the English Theft Act. Words would, prima facie, be given their ordinary meaning in what he called "layman's language."

The result seems to me to be the following. Normally, words used in an extradition warrant will be given their ordinary meaning. This enables the courts to give effect, without resort to extrinsic evidence, to extradition requests where words, such as "steal," "rob" and "murder," are used. It is possible that such words have different meanings in the law of the requesting state, but, in the absence of anything suggesting that, the courts will examine correspondence by attributing to such words, when used in a warrant, the meaning that they would have in Irish law. In some cases, however, the word used in the requesting jurisdiction may be unfamiliar to Irish law. A good example was suggested from the bench during the hearing. In Scots law, the word, "reset" is used to describe the harbouring of stolen goods. If that word were used in a warrant emanating from Scotland, it would clearly be necessary to have evidence of Scots law to explain it. I can see no basis upon which it could be refused. In my view, that simple proposition is a sufficient answer to the objection that the evidence of Mr St. John O'Connell should not have been admitted to explain the term "contrary to common law." The evidence was receivable to explain that "the common law" of Jersey, when used in a warrant for criminal fraud, encompasses the notion of "intent to defraud."

Counsel for the Appellant argues, however, that the evidence does not go far enough. It is said that the affidavit evidence did not permit the learned President to conclude that the allegation against the Appellant included an intention to defraud. It is submitted that the reasoning of the learned President was circular in that he concluded that a necessary element of the offence which was omitted from the face of the warrant could be read into it simply by virtue of the fact that the element omitted is a necessary element of the crime.

It is important to recall that the primary purpose of a warrant is for execution in the jurisdiction which issues it. The evidence of Mr St. John O'Connell is that, unlike in this jurisdiction, it is not necessary to allege "intent to defraud" in the warrant or in the indictment. The important part of his evidence is, therefore, his statement that it "is necessary to show that the Defendant had deliberately made a false representation with the intention and consequence of causing thereby actual prejudice to someone and actual benefit to himself or another." He says that, in the law of Jersey, criminal fraud is defined in this manner, as already shown in the quotation from the judgment of the Jersey Court of Appeal. If such an allegation had been made on the face of the warrant, it is indisputable that the warrant would have sufficed. The effect of Mr St. John O'Connell's evidence is that, in the law of Jersey, a charge of committing the offence of criminal fraud, carries with it the necessary implication that the accused person is alleged to have had the intent to defraud or to cause actual prejudice.

The fact is, however, that none of the warrants use the expression, "criminal fraud." Nor does Mr O'Connell anywhere in his affidavit refer to the actual warrants at issue in this case. His evidence goes no further than to explain the offence of "criminal fraud." There is, therefore, a missing link. None of the documents, either singly or collectively, demonstrate that the Appellant is charged with an offence of which intent to defraud is an element.

I would add that it would have been very simple to supply the missing link. Either the warrants could have described the offences as being "criminal fraud" or Mr St John O'Connell could have referred to the warrants and explained that they related to charges of criminal fraud. Indeed, it seems that there could have been a third alternative. The warrants could have alleged "intent to defraud" or, according to the preferred Jersey formulation, "intent to cause actual prejudice." This has sometimes been described as "dressing up." That is to say that a warrant might contain an allegation of fact whose proof, though not necessary according to the law of the requesting jurisdiction, would ensure its acceptance for the purposes of extradition from this jurisdiction. Walsh J, in his judgment in Wyatt's case had this to say on that question:

"I should like first to deal with what I might call the "dressing up" point. The gist of this submission is that if this charge were not one for which extradition was being sought its wording would have been quite different. The basis of this submission is that English law does not require the proof of the ingredients set out in the charge. Be that as it may, and I am not saying whether English law does so or not because, for the reasons I shall later deal with, this Court and any other court in proceedings such as these is not at all concerned with the construction of English law."

Later, however, he sounded the following warning note:

"If it should transpire in any case that the statements of fact set out in the charge were not supported by any evidence then, of course, a very serious situation would arise and the Courts would be obliged to examine such warrants in a completely different light because to set out statements of fact on a warrant for the purpose of giving the charge the appearance of corresponding to an offence under Irish law, when those factual statements are not capable of being borne out by evidence, would be to practise a fraud upon the Courts of this country."

In my view, there would be no objection to the inclusion of an allegation of fact, not necessary to prove in the requesting jurisdiction, so long as it corresponded to the facts actually to be proved. There is no reason to suspect that the courts of friendly jurisdictions with whom our State has entered into reciprocal extradition arrangements would act otherwise than in good faith. It would not, of course, be necessary to go so far in the present case, since it is clear that the inclusion of the words, "with intent to defraud" or to "cause actual prejudice" in the Jersey warrant would be merely to state something that must be proved according to that law.

However, in the absence of any allegation either express or to be implied of intent to defraud, I do not believe the warrants in the present case satisfy the requirements of Part III of the extradition Act, 1965 in respect of correspondence of offences. I would, therefore, allow the appeal and substitute an order dismissing the application of the Attorney General.