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Cite as: [2004] IESC 100
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Judgment Title: Attorney General -v- Parke

Neutral Citation: [2004] IESC 100

Supreme Court Record Number: 217/04

High Court Record Number: 2002 4 EXT

Date of Delivery: 06/12/2004

Court: Supreme Court


Composition of Court: Murray C.J., Denham J.McCracken J

Judgment by: Murray C.J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Murray C.J.
Appeal allowed - set aside High Court Order
McCracken J.
Denham J.
Appeal allowed - set aside High Court Order
McCracken J.

Outcome: Allow And Set Aside


- 16 -

THE SUPREME COURT

Murray C.J.
Denham J.
McCracken J.

217/04

BETWEEN
ATTORNEY GENERAL
APPLICANT / APPELLANT
AND
MARTIN PARKE
RESPONDENT

JUDGMENT delivered the 6th day of December 2004, by
Murray C.J.

In this case the High Court refused an application on behalf of the Attorney General for an order pursuant to s. 47 of the Extradition Acts, 1965-2001 for the delivery of the respondent to the United Kingdom in respect of charges set out in three warrants. The application before the High Court had been in respect of charges set out in total seven warrants. The order sought was granted in respect of four of those warrants and the Attorney General has appealed against the refusal of the learned High Court judge to make an order pursuant to s. 47 in respect of the remaining three warrants. These are described as warrants A, B and E in the judgment of the High Court. The charges contained in those warrants were set out in the learned High Court judge’s judgment in the following terms:
      “Warrant A charges as follows:
          “That he on the 23rd day of June, 1998 supplied a controlled drug of class A namely 2.38 grams of powder containing diamorphine to Gary Baldrey in contravention of s. 4(1) of the Misuse of Drugs Act, 1971. Contrary to s. 4(3)(a) of the Misuse of Drugs Act, 1971”

      Warrant B charges the same offence of supply, but in respect of a different date and to a different person.

      …

      Warrant E charges him with supply in the follow terms:
          “On the 30th day of March, 1999 at Parkview Court, Roe Green, London, NW9, England supplied a controlled drug of class A namely 0.261 grams of powder containing diamorphine to Thomas Cullinane in contravention of s. 4(1) of the Misuse of Drugs Act, 1971 contrary to s. 4(3) of the Misuse of Drugs Act, 1971.”

      …”

Part III of the Extradition Act, 1965, as amended, provides for the return of persons to, inter alia, the United Kingdom who are wanted on foot of warrants issued by a court in that jurisdiction to stand trial on criminal charges. Until the coming into force of the Extradition (European Union Conventions) Act, 2001 it was the District Court who exercised the jurisdiction to make an order, pursuant to s. 47 of the 1965 Act. Section 20 of the Act of 2001 had the effect of transferring to the High Court the jurisdiction in first instance of considering and determining an application pursuant to the aforesaid s. 47 for the removal of a person to the United Kingdom for the purpose of standing trial there. Section 20(1)(a) amended the Act of 1965 by providing for the substitution of “High Court” for “District Court” in each place that it occurs.

Accordingly s. 47(1) and (2) now read as follows:
      “47. – (1) Where a person named or described in a warrant is before the High Court in pursuance of this Part that Court shall, subject to the provisions of this Part, make an order for his delivery at some convenient point of departure from the State into the custody of a member of a police force of the place in which the warrant has been issued, for conveyance to that place, and remand him until so delivered.

      (2) 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.”

This was the essence of the judicial task conferred on the learned High Court judge when this application was before him. With regard to corresponding offences s. 26 of the Act of 2001 introduced an amendment to s. 42 of the 1965 Act by inserting a subsection (3) in the following terms:

      “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.”

One of the tasks of the High Court in such an application is, as
s. 47(2) makes clear, to determine whether the offence in respect of which a person’s extradition is sought corresponds with an offence in the State. The case-law of this Court concerning the application of s. 47 by a judge of the District Court now applies to the exercise of that jurisdiction by a judge of the High Court.

In this particular case the learned High Court judge had no difficulty in determining that the four offences mentioned in the four warrants for which he granted an order corresponded to offences in Irish law within the terms of section 47(2). These were offences concerning the possession of controlled drugs, the possession of which was also an offence in this State.

The offences referred to in warrants A, B and E on the other hand relate to the supply simplicitor, as opposed to possession, or possession with intent to supply, of similar drugs.

In the High Court it was contended on behalf of the Attorney General that the corresponding offence within this State was to be found in s. 5 in combination with s. 21(2) of the Misuse of Drugs Act, 1977. Section 5 of the Misuse of Drugs Act, 1977 provides:
      “(1) For the purpose of preventing the misuse of controlled drugs, the Minister may make regulations -
          (a) prohibiting absolutely, or permitting subject to such conditions or exceptions as may be specified in the regulations, or subject to any licence, permit or other form of authority as may be so specified -
              …
              (iii) the supply, the offering to supply or the distribution of controlled drugs, …”

Section 21(2) of the Misuse of Drugs Act, 1977 provides:
      “Any person who, whether by act or omission, contravenes or fails to comply with regulations under this Act shall be guilty of an offence.”

As appears from the judgment of the High Court counsel for the Attorney General had submitted that the foregoing provisions were sufficient to disclose the existence of an offence in this State which corresponded to the offence in the three warrants A, B and E. In short
s. 5 in combination with s. 21(2) created and constituted the offence of supplying a controlled drug. Counsel did not produce any regulations made pursuant to the Act and although it might be said that he implicitly relied upon them, which was the suggestion made in submissions to this Court in the appeal, he contended that it was not necessary for him to do so since s. 5 and s. 21(2) were sufficient to disclose, as a matter of law, a criminal offence in this State and that this offence corresponded to the ones in the relevant warrants. In his judgment, the learned High Court judge concluded that
      “Section 5 of the Act clearly empowers the Minister to make regulations, inter alia, for the purpose of prohibiting, or permitting subject to conditions or exceptions, the supply, the offering to supply, or the distribution of controlled drugs … but I am satisfied that the applicant cannot simply refer to the provisions of s. 21(2) of the Act in order to make out correspondence in relation to the supply charges in these warrants.”

Although the foregoing conclusion of the learned High Court judge was put in issue in this appeal it was effectively abandoned at the hearing of the appeal, and properly so. Accordingly I think it is convenient to dispose of this issue at this stage by saying that I consider that the learned High Court judge was entirely correct. Although s. 5 and in particular
s. 21(2) of the Misuse of Drugs Act, 1977 lay down the essential framework within which a criminal offence could arise it also specified a precondition for such an offence to come into existence namely the making of regulations by the Minister under that Act. It is manifest that a court could not determine whether any particular alleged act relating to the supply as such of a controlled drug was, as a matter of law, a criminal offence in the State unless regard is had to regulations made pursuant to section 5. The assertion by the State that a criminal offence could be ascertained from those sections without regard to any regulations made pursuant to s. 5 was ill-founded.

The focal point of the appeal is the ensuing conclusion of the learned High Court judge where he stated:
      “The Minister may or may not have made such regulations, and it is a matter for the applicant to satisfy this Court that such regulations have been made and are still in force, and this has not been done. I am not therefore satisfied that correspondence has been made out in relation to the charges set forth in warrants A, B and E herein.”

In so holding it is clear that the learned High Court judge took the view that the onus of identifying, as a matter of law, a criminal offence against the law of the State which corresponded to the foreign offences rested exclusively on the Attorney General and that accordingly in not producing or proving the existence of regulations under the Act of 1977 he had failed to discharge that onus.

In this appeal, the submission by Senior Counsel for the Attorney General, who had not appeared in the High Court, was that these extradition proceedings were not a criminal trial but more in the nature of an inquiry. It was a matter for the trial judge to ascertain or enquire as to whether there were regulations in force which disclosed a criminal offence in Irish law corresponding to the offences in the foreign warrants. Counsel referred to the case of Attorney General –v- Dyer (Supreme Court, unreported, 16th January, 2004) where such an approach was adopted when the State put forward two possible offences and asked the Court to identify one of them as being a corresponding offence.

Counsel for the respondent in this appeal submitted that the issue in the appeal concerned the onus and degree of proof which rests on the Attorney General in extradition applications to establish “correspondence” as he put it. He submitted that in an extradition application the onus is on the applicant Attorney General to identify the offence in Irish law alleged by him to be the corresponding offence.

In the course of the appeal it became clear that regulations pursuant to s. 5 of the Misuse of Drugs Act, 1977 had been made by the Minister it being an offence pursuant to s. 21(2) of that Act to contravene them. This was not in dispute. The issue was whether the Attorney General having failed to produce those regulations in the course of the High Court proceedings the learned High Court judge was correct in dismissing the application pursuant to s. 47 of the 1965 Act without further consideration of the matter by him on the grounds that the Attorney General had failed to discharge a burden of proof placed upon him.

In addressing this issue I think I should first of all state the obvious, namely, that although extradition may entail serious consequences for a person subjected to it, such as the loss of liberty, extradition proceedings are not a criminal process and are not in the nature of a criminal trial. The burden of proof of facts which may rest on the applicant in these proceedings is not that of a criminal trial. I hasten to add that the learned High Court judge did not approach this matter on such a basis and it is just that I consider it appropriate at this point to distinguish between extradition proceedings and other forms of proceedings, criminal and civil. An extradition proceeding, pursuant to the relevant Acts, has its own special features which in a certain sense makes it sui generis.

In Wyatt –v- McLoughlin [1974] IR 378 Walsh J. in his judgment (with whom a majority of the Court concurred), referred to the nature of extradition as being
      “… the formal surrender, based upon reciprocating arrangements by one nation with another, of an individual accused or convicted of an offence who is within the jurisdiction of the requested country when the requesting country, being competent to try and punish him, demands his surrender. The formal arrangements at which this may be secured and the principle of reciprocity enshrined are either by way of treaties or by reciprocal legislation. But, whichever system exists, in every case in which the matter comes into the courts of the requested State they must enquire whether the stipulations of the treaty are the requirements of the legislation, as the case may be, have been fulfilled.” [emphasis added]

These reciprocating arrangements referred to by Walsh J. may arise from bi-lateral arrangements or, as is more often the case nowadays, multi-lateral treaties. The system which exists for the purpose of this case is to be found in Part III of the 1965 Act, as amended. It reflects the Irish side of the reciprocal arrangement with the United Kingdom whereby a person wanted for trial in one country may be the subject of an order for removal to that country for the purpose of standing trial, or serving sentence after conviction, for criminal offences. The role of the requested State, indeed its duty, is to give effect to a lawful request from a requesting State once it is determined that the request fulfills the criteria laid down by the relevant legislation. Needless remark when these matters fall to be determined in court proceedings they are done so in accordance with the principles of constitutional justice and respect for the fundamental rights of those concerned as expressly provided for in relevant legislation, the Constitution or implied therefrom.

The requesting state is not a party to the proceedings. The responsibility for bringing a person named in a warrant before the High Court clearly rests with authorities in this State. Once that is done the task of determining whether all legal requirements for the making of an order pursuant to s. 47 are fulfilled rests with the High Court judge. That is an inherently inquisitorial function. The High Court, as Walsh J. put it, “must enquire” as to whether that is so. In doing so the Court also ensures that no one in this jurisdiction shall be ordered to be delivered up for the purposes of extradition unless the Court is satisfied that the offence in question corresponds to an offence under the law of the State.

As O’Dalaigh C.J. observed in The State (Holmes) –v- Furlong [1967] IR 210 at 216
      “The Courts function is, therefore, limited to satisfying itself that the provisions of Part III of the Act of 1965 have been properly complied with.” [emphasis added]

In his judgment of the same case Walsh J. (at 223) addressed the duty of the district justice, which now applies to that of a judge of the High Court, when considering an application under Part III of the 1965 Act and stated:
      “… the duty of the district justice in exercising the jurisdiction of the District Court in these applications is, first of all, to be satisfied as to the validity of the warrant and other documents as prescribed by the Act and, secondly, to be satisfied that the person who has been arrested is in fact the person named or described in the warrant … The district justice should next satisfy himself that the offence in the warrant is one in respect of which he may make an order under the Act.”
It seems to me clear that proceedings of this nature cannot be viewed through the prism of the concept of adversarial proceedings as usually viewed in proceedings inter partes. For example, all the factual matters on which the High Court judge must be satisfied for the purpose of determining whether or not an order should be made pursuant to s. 47 could not be done simply by means of a mere consent or admission unless such admissions are themselves evidence of a fact or the consent is expressly authorised by statute. It is the judge himself or herself which must be satisfied.

In other words the Court hearing an application for extradition is put on an inquiry and the proceedings have an inquisitorial nature. This is so even though the responsibility for bringing before the Court the necessary material or evidence necessary to demonstrate to the Court that all factual elements required by the statute, including evidence where necessary as to foreign law, lies with the State.

Such was the approach adopted by Finlay J. (as he then was) in Wyatt –v- McLoughlin [1974] IR 378 at 384 when addressing a submission by counsel on behalf of the respondent in the case:
      “He submits that equally the High Court can and should confirm an order by the district justice under s. 47 where the specification of the corresponding offence is defective or incomplete, provided the High Court is satisfied that a corresponding offence does exist. In so submitting, he relies in particular on the terms of s. 47 ss. 2, and its negative approach. I am satisfied that the logic of this contention … is sound and that, notwithstanding the fact that in my view no offence was specified in the recital contained in the district justice’s order, I must proceed to enquire as to whether there is an offence within the law of this State corresponding with the offence recited in the warrant and that, if there is, I must confirm this order.” [emphasis added]

In dismissing an appeal from the decision of Finlay J. in that case Walsh J. (at 398) adopted a similar approach on that point when he stated
      “For the reasons stated in Furlong’s case, it is necessary that either the warrant or some other document accompanying it should set out sufficient information as these facts to enable the Courts of the State to identify the corresponding offence, if any, in our law.”

Later on the same page he states
      “On the contrary it is emphasised, as I think the passage makes clear, that the function of the Irish court was to discover from the acts alleges whether there was a corresponding Irish offence and to ignore offence names found in English Law.”
In that case Walsh J. also cited with approval the statement of O’Dalaigh C.J. in The State (Furlong) –v- Kelly [1971] IR 132 at 141 where the former Chief Justice state
      “The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more such ingredients, constitute an offence under the law of the State …”

What the ingredients of a foreign offence are is a question of fact to be determined by the High Court judge on the evidence and material before the Court, including documents tendered pursuant to s. 55 of the Act of 1965. Once the ingredients of the foreign offence have been determined then it is a question of law for the High Court to determine whether there is a corresponding offence in Irish law and what that offence is. In addition to the word “determine” other key words used in the passages which I have cited above are “identify”, “inquiry” and “discover” in relation to the task of the judge concerned when ascertaining whether there is a corresponding offence in Irish law. Those passages underline the inquisitorial dimension of the proceedings. To my mind that issue of law is not a question of proof in these proceedings. Of course before any steps are taken by the State in connection with the extradition of a person the relevant State authorities must be of the view that it is sought in respect of an offence for which there is a corresponding offence in Irish law and should assist the court by submitting what, in its view, constitute the corresponding offence. But any view of the State is not determinative. Once the criteria set out in s. 47(1) are satisfied it rests with the judge of the High Court to enquire and discover, as envisaged by s. 47(2), (which Finlay J. noted was expressed in the negative), whether there is a corresponding offence in Irish law. In Attorney General –v- Dyer (Supreme Court, unreported, 16th January, 2004) Fennelly J. noted in his judgment (nem. diss.) that
      “Two offences created by statute were offered by the Attorney General as candidates for the role of corresponding offence.”

That case was concerned with issues as to whether the foreign offences corresponded to offences under Irish law and the Court concluded that they did not but the manner in which the issues fell to be dealt with underscore the fact that it is ultimately for the Court concerned to determine whether there is in Irish law a corresponding offence and what that offence is.

Having regard to the somewhat sui generis nature of the proceedings under the Act of 1965, as amended, and in particular their inquisitorial dimension I am of the view that the learned High Court judge was incorrect in dismissing the application of the Attorney General without seeking ex officio to ascertain whether regulations had been made pursuant to s. 5 of the Act and having so ascertained, to proceed to determine whether there could be identified therein an offence under Irish law which corresponded to the offences contained in warrants A, B and E. Regulations which could make the supply of a controlled drug unlawful are specifically referred to in s. 5 of the Misuse of Drugs Act, 1977 and the existence of such regulation may be determined as an objective question of law. Certainly the approach of counsel for the Attorney General was most unhelpful. From a pragmatic point of view I suppose one could say that the learned trial judge might have required that counsel to produce the relevant regulations. But the failure of counsel to do so cannot mean that there was a fatal failure to discharge an onus of proof on the part of the State. For the reasons I have indicated above the ultimate task of determining whether there is an offence under Irish law remains with the judge hearing the proceedings and he or she is put on inquiry to determine that as a question of Irish law. It is not a question of proof. Neither do I consider that in proceedings in which the Court “must enquire” is it necessary for the Attorney General to prove the existence of regulations the making of which has been expressly provided for in the Act.

It is not in dispute that regulations referred to in s. 21(2) of the Act of 1977 were made pursuant to section 5. The issue as to whether those regulations taken in conjunction with those sections disclose an offence which corresponds to the offences set out in warrants A, B and E was not argued in the High Court and of course is not a matter to be determined in this Court in first instance. Accordingly in my view the appeal should be allowed and the proceedings remitted to the High Court to have that issue determined.

8

THE SUPREME COURT


RECORD NO. 217/2004



MURRAY C.J.
DENHAM J.
McCRACKEN J.




BETWEEN
ATTORNEY GENERAL

APPLICANT/APPELLANT

AND


MARTIN PARKE

RESPONDENT



Judgment delivered on the 6th day of December, 2004 by Denham J.














1. This is an appeal by the Attorney General from that part of the judgment of the High Court (Peart J.) delivered on the 24th day of February, 2004 which refused to grant an order under s. 47 of the Extradition Act 1965, as amended, for the rendition of Martin Parke, the respondent, hereinafter referred to as the respondent, in respect of three warrants, to the United Kingdom.

2. The matter came before the High Court as an application for an order under s. 47 of the Extradition Act 1965, as amended, for the rendition of the respondent to the United Kingdom on foot of seven warrants. All warrants were dated 14th December, 2001.

3. All the warrants related to drug offences. They were described by the learned trial judge as follows:
      “Warrant A charges as follows:
          “That he on the 23rd day of June 1998 supplied a controlled drug of Class A namely 2.38 grams of powder containing diamorphine to Gary Baldrey in contravention of Section 4(1) of the Misuse of Drugs Act 1971. Contrary to section 4(3) (a) of the Misuse of Drugs Act 1971.”
      Warrant B charges the same offence of supply, but in respect of a different date and to a different person.

      Warrant C charges him with possession with intent to supply, and in the following terms:
          “That he on the 26th day of August 1998 had in his possession a controlled drug of Class A namely 4.288 grams of powder containing diamorphine with intent to supply it to others in contravention of Section 4(1) of the Misuse of Drugs Act 1971 contrary to Section 5(3) of the Misuse of Drugs Act 1971.”

Warrant D charges him with simple possession in the following terms:
          “That he on the 26th day of August 1998 had in his possession a controlled drug of Class A namely 81 Physeptone tablets containing methadone in contravention of Section 5(1) of the Misuse of Drugs Act 1971 contrary to Section 5(2) of the Misuse of Drugs Act 1971.”

Warrant E charges him with supply in the following terms:
          “On the 30th day of March 1999 at Park View Court, Roe Green, London NW9, England supplied a controlled drug of Class A namely .261 grams of powder containing diamorphine to Thomas Cullinane in contravention of Section 4(1) of the Misuse of Drugs Act 1971 contrary to Section 4(3) of the Misuse of Drugs Act 1971.”
      Warrant F charges him with possession with intent to supply, in the following terms:
          “On the 30th day of March 1999 at Park View Court, Roe Green, London NW 9, England had in his possession a controlled drug of Class A namely 5.657 grams of powder containing diamorphine with intent to supply it to others in contravention of Section 4(1) of the Misuse of Drugs Act 1971 contrary to Section 5(3) of the Misuse of Drugs Act 1971.”

Warrant G charges him with simple possession in the following terms:
          “That he on the 30th day of March 1999 at Kingsbury Road, London NW9 had in his possession a controlled drug of Class A namely .303 grams of powder containing diamorphine in contravention of Section 5(1) of the Misuse of Drugs Act 1971 contrary to Section 5(2) of the Misuse of Drugs Act 1971.”

4. The learned trial judge held that the onus was on the respondent to establish that he came within the exceptions. He stated:
      “I should also refer to the fact that the Schedule to the Misuse of Drugs Act, 1977 itself lists the drugs which comprise controlled drugs, for the purposes of the Act, and it is clear from perusal of that Schedule that both diamorphine and methadone are listed in the Schedule and are therefore controlled drugs. Section 2(1) of the Act defines a controlled drug as being one “which is either specified in the Schedule to this Act or is for the time being declared pursuant to subsection (2) of this section to be a controlled drug for the purposes of this Act.” It is not therefore necessary that the applicant should have produced the Regulations in question for the purpose of satisfying the court that these drugs are controlled drugs.

      Again it would be for the respondent to discharge the onus of satisfying this court that diamorphine and/or methadone had been by regulation taken out of the classification of being a controlled drug.

      In relation to the charges in Warrants A, B, and E, namely the charge of supply simpliciter, as opposed to possession or possession with intent to supply, counsel for the applicant has, as I have already stated, submitted that the corresponding offence in this jurisdiction is that created by Section 21(2) of the 1977 Act, which provides: “any person who, whether by act or omission, contravenes or fails to comply with regulations under this Act shall be guilty of an offence.”

      Section 5 of the Act clearly empowers the Minister to make regulations, inter alia, for the purpose of prohibiting, or permitting subject to conditions or exceptions, the “supply, the offering to supply, or the distribution of controlled drugs (See Section 5(1) (iii) of the Act). But I am satisfied that the applicant cannot simply refer to the provisions of Section 21(2) of the Act in order to make out correspondence in relation to the supply charges in these Warrants. The Minister may or may not have made such regulations, and it is a matter for the applicant to satisfy this court that such Regulations have been made and are still in force, and this has not been done. I am not therefore satisfied that correspondence has been made out in relation to the charges set forth in Warrants A, B and E herein.

      I am satisfied that the respondent is properly before this court for the purpose of the application under section 47 of the 1965 Act, and that all the formalities of his arrest by Sgt Heffernan are complied with, and that he has been properly identified.

      I am also satisfied that the minimum gravity requirement of the offences have been satisfied, and I am also satisfied that each of the offences charged in Warrants C, D, F and G herein, correspond with offences in this jurisdiction, as of the date of production of the Warrants to the Assistant Commissioner in January 2002 as submitted by the applicant.

      I therefore grant the order sought in respect of those Warrants only, (but not in respect of Warrants A, B, and E), namely for the delivery of the respondent at some convenient point of departure from the State into the custody of a member of the Metropolitan Police, London, being the police force for the place in which the Warrants have been issued, for conveyance to that place, and I remand him in custody until he is so delivered.”

5. On this appeal there is a net issue in relation to three warrants. The High Court held that the applicant could not simply refer to the provisions of s. 21(2) of the Misuse of Drugs Act, 1977 and make out correspondence in relation to the supply charges in the warrants. The High Court stated that:
      “The Minister may or may not have made such regulations, and it is a matter for the applicant to satisfy the court that such regulations have been made and are still in force, and that this had not been done”.
Thus the issue raises the matter of the relevant Irish law and the duty of counsel for the applicant to prove and provide, and the duty of the learned trial judge to inquire as to, the Irish law relevant to the offences.
6. No issue arises on the facts as set out in the warrants from the United Kingdom. These facts are clearly stated and it is on them that an Irish offence falls to be identified, or not. The issue before the court is the identification of the Irish Law relevant to the facts so as to determine if there is correspondence.

7. In the High Court there was, correctly, reference to s. 5 and s. 21(2) of the Misuse of Drugs Act, 1977. These Sections provide:
      “Section 5(1) For the purpose of preventing the misuse of controlled drugs, the Minister may make regulations –
      (a) prohibiting absolutely, or permitting subject to such conditions or exceptions as may be specified in the regulations, or subject to any licence, permit or other form of authority as may be specified -
      (iii) The supply, the offering to supply or the distribution of controlled drugs….”

      Section 21(2) Any person who, whether by act or omission, contravenes or fails to comply with regulations under this Act shall be guilty of an offence.”
    No regulations were opened or handed to the learned trial judge nor was the making of any regulations formally proved. The trial judge himself stated that ‘the Minister may or may not have made such regulations.’ On this appeal counsel for the applicant referred this court to the Misuse of Drugs Regulations, 1988, (S.I. No. 328 1988), and in particular to regulation 4(1) (b).

    8. Infact the core of this case is not the issue of “correspondence” but rather the query as to what is the relevant Irish law. The core of the case is the failure by the Attorney General to prove the relevant regulations in the High Court. Ms. Sarah Moorehead, S.C., counsel for the applicant, submitted that it is for this court to determine if there is an Irish offence on the facts. Counsel accepted that the relevant regulations were not produced to the High Court. Counsel submitted that the role of the learned High Court Judge under the Extradition Act 1965, as amended, is to inquire and to be satisfied that there is an Irish offence. She drew a distinction between an extradition inquiry and a criminal trial. She also submitted that the applicant should have been allowed to prove the regulations in the High Court once the issue was raised.

    Mr. Cormac Quinn, B.L., counsel for the respondent, submitted that there was an onus on the applicant. The High Court must be satisfied by the applicant that there is an Irish offence. The regulations were not put before the High Court and at no time did Counsel for the applicant apply to put the regulations before the learned trial judge. He accepted that a trial judge could have taken judicial notice of the regulations if they were well embedded and if the judge was familiar with the regulations. However, he submitted that prosecutions for the supply simpliciter of a controlled drug are rare and that this part of the regulations is not embedded in Irish Law and the court could not take judicial notice of the regulations.

    9. Decision
    9.1 Role of the applicant
    It is the role of the applicant to present the documents in the case to the court, together with the relevant Irish law, to enable the learned High Court Judge determine the matters pursuant to the Extradition Acts 1965, as amended. In this case, while the documentation was presented to the court, all the relevant Irish Law was not. The offence in issue is made up of primary legislation, which was brought to the attention of the High Court, and secondary legislation, namely regulations, which were not. Even when the issue was raised, counsel for the applicant did not inform the court of the regulations or seek to do so. This is not a prosecution for a criminal offence in Ireland, it is an inquiry under the Extradition Act 1965, as amended. In presenting the documentation and the law to meet the criteria set out in the Extradition Act 1965, as amended, counsel for the applicant erred in not providing the court with the relevant regulations. The applicant also erred in not assisting the court once the issue of the regulations arose, as no application was made to put the regulations before the court.

    9.2 Role of the Judge
    The role of a Judge under the Extradition Act 1965 as amended, is to inquire as to whether the criteria set out in the said Act has been met. This means that there has to be a scrutiny of the documents to determine whether they meet the requirements of the Act and then an inquiry as to what Irish law is applicable. There are several possible legal issues, one such is correspondence. No issue arose in this case on the facts or acts as set out on the three warrants from the United Kingdom. The issue raised is not a technical matter as to “correspondence”. The issue is the relevant Irish Law and its proof before the High Court. It is thus a net technical point which has been raised, the lack of proof of the regulations before the High Court.

    I am satisfied that the issue of whether or not there is a corresponding Irish offence is an issue which may be re-examined by an appellate court, which may come to a different decision as to the precise corresponding offence than the trial court. An appellate court has a discretion to consider the relevant corresponding offence as it is a matter of law.

    However, in this case the issue is not of correspondence but that the Irish law was not properly before the High Court, and that the High Court did not consider the regulations.

    The role of the trial judge in an application for an order of extradition is unique. The hearing is not a criminal trial, in the adversarial sense where the State must prove the guilt of the accused beyond all reasonable doubt. Nor is it a civil case between two parties. It is a unique procedure where the court holds an inquiry as to whether the criteria set out in the Extradition Act 1965, as amended, has been met. Further, this law has been established against the back drop that the State has entered into an agreement with the requesting State that there be extradition arrangements between the two States. Thus these cases are founded on the comity of nations and the comity of courts.

    I am satisfied that there is a duty on a trial judge in an extradition case to make such inquiries of counsel as are relevant. This includes an inquiry as to the Irish Law which may afford a corresponding offence. Once the issue of the regulations arose in the High Court it was required of the applicant to place the regulations before the trial judge. Also, as this is an inquiry, not a criminal prosecution, once the issue arose as to whether or not there were regulations, the trial judge should have inquired as to whether in fact there was such a regulation. This is so especially in an area where it is well known that heroin is a controlled drug, as indeed the learned trial judge had previously stated, and that it is the subject of many prosecutions in the Irish Courts.


    9.3 Next Step
    This court was informed that relevant regulations exist. However, it is accepted by counsel for the applicant that the regulations were not put before the High Court. I have considered carefully whether this court should now consider the relevant Irish Law proffered. This may be the correct route in many cases where the Irish corresponding offence in an extradition case is in issue. However, in all the circumstances of this case, including the fact that there was no consideration of the regulations by the High Court, I would remit the matter to the High Court. In the High Court, counsel for the applicant should present all the relevant Irish Law as to the corresponding offence to the learned trial judge and make it available to the trial judge for his inquiry.

    Consequently I would allow the appeal and remit the matter to the next extradition list in the High Court, to enable the High Court consider all the relevant Irish Law and to determine the issue of correspondence in this case.
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