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Cite as: [2004] IESC 99

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Judgment Title: Attorney General -v- Burns Neutral Citation: [2004] IESC 99 Supreme Court Record Number: 6/04 High Court Record Number: 2002 2689 SS Date of Delivery: 06/12/2004 Court: Supreme Court Composition of Court: Denham J., Hardiman J., McCracken J. Judgment by: Denham J. Status of Judgment: Approved

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

Outcome: Allow And Set Aside

3

DENHAM J.
HARDIMAN J.
McCRACKEN J.



IN THE MATTER OF SECTION 2 OF THE
SUMMARY JURISDICTION ACT 1857
IN THE MATTER OF THE COURTS
(SUPPLEMENTAL PROVISIONS) ACT 1961 to 1991


IN THE MATTER OF THE EXTRADITION ACTS
1965 to 2001

BETWEEN/


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







1. This is an appeal by Robert Burns, the appellant, hereinafter referred to as the appellant, from the order and judgment of the High Court (O’Caoimh J.)delivered on 10th day of December, 2003.

2. The appellant is sought by the authorities of the United States of America so that he may be prosecuted for health care fraud, money-laundering and conspiracy to commit health care fraud. The District Court made an order under s. 29(1) of the Extradition Act, 1965, which was confirmed by the High Court

3. Case Stated
3.1 The matter came before the High Court by way of case stated from a decision of the District Court (Judge Conal Gibbons) made on the 25th 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 point of law.

3.2 The case stated recited the facts, as follows. The matter came before Dublin Metropolitan District Court on the 10th June 2002 and on the 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 Extraditions Act 1965, as amended. The application was on foot of a request from the Government of the United States of America dated 18th January 2002, together with supporting documentation furnished to the District Court, and a further letter from the United States Government dated the 29th January 2002. The extradition of the appellant was sought in respect of counts number 1 to 14 and counts number 26, 28 and 29 of the indictment, which indictment formed part of the supporting documentation.
3.3 The case stated set out that the appellant was arrested by Detective Sergeant Heffernan of the Extradition Section, Garda Headquarters, on the 14th 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 the 12th January 2002, pursuant to the provisions of the Extradition Act, 1965. The appellant 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.

3.4 The case stated set out the evidence adduced at the hearing. This included the evidence of Mr. Robert Adams, a trial lawyer in the United States Department of Justice Criminal Division, Fraud Section. He gave evidence to the District Court that all of the offences on which the appellant’s extradition was sought had occurred in the United States of America, that they had no political connotations, that they were not revenue offences, and that they did not attract the death penalty. He said 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 Mr. Ashcroft and Mr. 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. Mr. Adams gave evidence on cross examination to which I shall return. Mr. Mark Finkelbinder also gave evidence of identification of the appellant. Identification is not an issue in this appeal.
3.5 Submissions were made, by counsel for the appellant and the Attorney General, to the District Court and these were set out in detail in the case stated.

3.6 The District Court Judge stated that he being of the opinion that:
(a) 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] IR 378 and that they were offences on the day on which the extradition request was made,

(b) all the documents required by Section 25 of the Extradition Act 1965 had been furnished,

(c) Statutory Instrument 474 of 2000 applied Part II of the Extradition Act 1965 to the United States of America,

(d) I was satisfied of the documents of authenticity,

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

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

(g) I was entitled to proceed on the basis of the assumption that the requesting state was acting in good faith and the fugitive would receive a fair trial in the courts of the requesting State, see R v. Governor of Pentonville Prison, ex-parte Lee [1993] 1 WLR 1294 at p.1300,

(h) that it is appropriate for the Court to state that under Section 26 of the Act, 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. 1,

(i) the questions raised by the appellant concerning the application of the rule of specialty by the Courts of the United State of America did not go far enough and I was satisfied that the rule of specialty applies in the instant case and that the appellant’s rights in that regard are enshrined in the laws of the United State 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 Section 29 of the Extradition Act 1965, Part II of the said Act applies in relation to the requesting country (United State of America), the extradition of the appellant was not prohibited and the relevant documents required to support a request for extradition under Section 25 of the Extradition Act 1965 had been produced,

(k) on this basis the District Court made an order as sought under Section 29 of the Act 1965.

The District Court then stated:

“The opinion of the High Court is respectfully sought as to whether upon the foregoing facts, I was correct in holding against the appellant on each of the eleven submissions made by him and whether my determination was correct in point of law”.

4. The High Court
The case stated was heard by the High Court and judgment delivered on 10th December, 2003. The High Court ordered that the judge of the District Court was correct in point of law in holding against the appellant on each of the eleven submissions made on his behalf.

5. Grounds of Appeal
The appellant has appealed against the findings and determination of the High Court. The grounds of appeal were as follows:-
1. The learned High Court Judge erred in law and/or in his discretion in proceeding to hear the appeal by way of case stated when the appellant was not legally represented.

2. The learned Judge erred in law in the holding that the District Court was entitled to hold that there was evidence upon which it could be satisfied that the offences for which extradition was sought were offences within the United State of America on the 18th January 2002.

3. The learned Judge erred in law in holding that the District Court was entitled to hold that such offences were not revenue offences.

4. The learned Judge erred in law in holding that the District Court was entitled to hold that the limitation period for the conspiracy charges ran from the date of the last alleged act, and in holding that the District Court was entitled to hold that the appellant had not become immune from prosecution.

5. The learned Judge erred in law in holding that the District Court was entitled to hold that the United States Courts comply with the rule of specialty.

6. The learned Judge erred in law in holding that the District Court was entitled to hold that the offences the subject of the extradition application were corresponding offences with any offences in this state.

7. The learned Judge erred in law in holding that the District Court was correct to hold that the Statutory Instrument 474/2000 applied Part II of the Extradition Act to the United States.

8. Such further on other grounds as may by leave of this Court be argued.

6. New Grounds of Appeal
At the commencement of the appeal Mr. Michael Forde, S.C., counsel for the appellant, sought to adduce new grounds of appeal. I am satisfied that new grounds of appeal should not be considered by this Court for two reasons. First, this is an appeal on a case stated from the District Court. The facts were found by the District Court. On these facts, at the request of the appellant, the District Court has sought an opinion on matters of law. This form of appeal proceeds on the terms set by the District Court. Secondly, there is a general jurisprudence, from which there are a few exceptions, that new issues will not be argued on an appeal. Issues are required to be argued first before and decided upon by a trial judge. It is then for an appellate court to consider the facts and law on appeal. There is a discretion whereby an appellate court may consider new issues, in special circumstances. However, as this case is not an appeal in the usual form from the High Court, these proceedings are by way of case stated pursuant to the provisions of the Summary Jurisdiction Act, 1961, as amended and extended by s.51 of the Courts (Supplemental Provisions) Act, 1961, this jurisprudence does not apply. This form of appeal was chosen by the appellant, at a time when he had legal representation. The issues on appeal are of law, not fact. The issues of law were determined by the District Court. In all the circumstances of this case, I am satisfied that the court does not have jurisdiction to consider additional issues. Consequently, this appeal should be heard and determined within the terms of the case stated by the District Court.

7. Revenue Offences
The appellant raised seven issues of law on the notice of appeal to this Court. However, at the hearing before this Court counsel stated that the ground relating to ‘Revenue Offences’ was not being pursued

8. Legal Representation
As to the first ground, that the High Court erred in law and/or in its discretion in proceeding to hear the appeal by way of case stated when the appellant was not legally represented, I would confirm the determination of the High Court. The appellant had had a series of legal representatives. The High Court held:

“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.”

I would not intervene in the exercise of the discretion, and the decision, of the High Court, I would dismiss this ground of appeal.

9. Specialty
9.1 The appellant raised the issue of specialty. The case stated set out the evidence adduced at the hearing in the District Court. This included the following:

“(ii) Mr. Adams identified the United States Federal Sentencing Guidelines shown to him by Mr. McGuinness. He agreed that the Federal Sentencing Guidelines bind federal judges in sentencing defendants. He also agreed that the said 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. He stated that the sentencing guidelines provided for a base offence level and that the Court then examined the conduct for characteristics 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. He agreed that the “relevant conduct” to be considered by the court under IA of the sentencing guidelines included unindicted bad conduct. He further agreed that matters which must be taken into consideration by a sentencing court under IB of the sentencing guidelines included similar fact offences and loss attributable to unindicted conduct. He agreed that although the Attorney General was not seeking an order for the appellant’s extradition on counts 16 to 26 inclusive of the indictment, the conduct charged in those counts could in fact be taken into consideration by a federal court sentencing a defendant in a criminal case. 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. He was not familiar with the manner in which the Federal Sentencing Guidelines are applied in cases such as the present. A copy of the decision of the United States Federal Court of Appeal for the Circuit in US v Andonian was shown to Mr. Adams by Mr. McGuinness. Mr. Adams stated that he was not familiar with the case but it appeared to relate to a number of men from Uruguay who were extradited to the United States from Uruguay, a county whose extradition treaty with the United States apparently contained a specialty clause. Despite this however, 12 new counts were added to the indictment after the men arrived in the United States and this was upheld by the Federal Court of Appeals for the Circuit. Mr. Adams was also shown a copy of the decision of the Court of Appeals for the 9th Circuit in the case of US v Lazarevich which involved an extradition from the Netherlands to the United States. Again the extradition treaty between those two countries appeared to contain a specialty clause similar to that contained in the treaty between Ireland and the United States. Mr. Adams agreed that the case appeared to permit the federal sentencing judge to take into account conduct and in particular abduction in respect of which Mr. Lazarevich had not been extradited and his sentence was thereby increased accordingly. A copy of the decision of the US federal Court of Appeal for the 5th Circuit in US v Labaron was also shown to Mr. Adams. He agreed that it appeared to relate to that defendant’s extradition from Mexico to the United States in respect of a count of conspiracy to commit murder and one other count. It would appear that the Mexico/United States extradition treaty contained a specialty clause but this did not prevent Mr. Labaron being tried for a second conspiracy charge in respect of which he had not been extradited and this was upheld by the 5th Circuit Court of Appeals. Mr. Adams pointed out that none of the above cases were from the 4th Circuit Court of Appeals which was the court governing West Virginia and he did not know what the law in West Virginia was in relation to the application of the rule of specialty in this regard. He admitted that the only court which could overturn the above decisions was the United States Supreme Court and he did not know if any of the above cases had been appealed to the Supreme Court. He noted however that in the Andonian case a cert. was denied which meant that the Supreme Court had declined to hear the case, a fact to which no significance could be attached.
Upon being directed by Mr.McGuinness to the various counts in the indictment he agreed that in many places the expression “including but not limited to” was used. Examples of where this occurred included page 23 “Patients including but not limited to patients JH, AW, PW and VL. He also agreed that at the appellant’s trial, other claims concerning other patients would be introduced in evidence.”

9.2 The District Court Judge dealt with the issue of specialty by holding that the questions raised by the appellant did not go far enough and he was satisfied that the rule of specialty applied in the case and that the appellant’s rights in this regard are enshrined in the laws of the U.S.A. and that he could apply to court to remedy any breach of his rights in this regard. However, the District Court was of the opinion:-

“(h) That it is appropriate for to [sic] court to State that under section 26 of the Act, 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 known as Nielsen [1984] 79 Cr App R 1”.

It appears that the reference to s.26 is a misprint, as s.26 relates to the warrant of arrest procedure. It is more probable that the District Court was referring to s.20, which relates to the rule of specialty.
9.3 Ambit of Appeal
The parameters of this appeal are governed by the terms of the case stated. The applicant chose this form of appeal over other possible forms of appeal at a time when he was legally represented. The appeal is confined to the statutory scheme provided for this type of appeal. There are other forms of appeal available which are usually more suited to the types of issues which arise in an appeal on an extradition application.

This is an appeal on a point of law. Section 2 of the Summary Jurisdiction Act, 1857, as amended by s.51 (1) of the Courts (Supplemental Provisions) Act 1961, provides:

“After the hearing and determination by a Justice of any proceedings howsoever heard and determined (other than proceedings relating to an indictable offence which was not dealt with summarily by the Court), either party to the proceeding before the said Justice or Justices may if dissatisfied with the said determination as being erroneous in point of law, apply in writing within fourteen days after the same to the said Justice or Justices, to state and sign a case setting forth the facts and the grounds of such determination, for the opinion thereon of the … High Court…;and such party, hereinafter called the appellant, shall within three days after receiving such case, transmit the same to the Court … first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party to the proceeding … hereinafter called the respondent.”

This form of appeal requires that the case be stated by the District Court. The form of the case stated was described by Murphy L.J. in Emerson v. Hearty [1946] NI 35 at pp 36 -37 as follows:-

“The case should be stated in consecutively numbered paragraphs, each paragraph being confined, as far as possible, to a separate portion of subject matter. After the paragraphs setting out the facts of the case there should follow separate paragraphs setting out the contentions of the parties and the findings of the Judge.
The case should set out clearly the Judge’s findings of fact, and should also set out any inferences or conclusions of fact which he drew from those findings … What is required in the case stated is a finding by the Judge of the facts, and not a recital of the evidence. Except for the purpose of elucidating the findings of fact it will rarely be necessary to set out any evidence in the case stated save in the one type of case where the question of law intended to be submitted is whether there was evidence before the Judge which would justify him in deciding as he did.
The point of law upon which this Court’s decision is sought should of course be set out clearly in the case. But we think the Judge is certainly entitled to expect the party applying for the case stated to indicate the precise point of law upon which he wishes to have the decision of the appellate Court. It would be convenient practice that this should ordinarily be done in the written application for the case stated.”

This was applied in Mitchelstown Co-Operative Agricultural Society Ltd v Commissioner for Valuation [1989] IR 210 by Blayney J. I also adopt and apply this statement of the law.
In this case stated the judge set out the evidence adduced at the hearing. He did not expressly find the facts. This is unfortunate. Consequently the findings of fact are to be inferred from the evidence adduced. This is not a preferred way to state a case. However, in this case where there was no conflicting evidence it is an approach which, while not that preferred, is open to the Court.

Foreign Law
This Court is bound by the facts found by the District Court as set out in the case stated. Because of the format used by the District Court this is not as clear as it might be. This is an added complication to the case.

The issue of foreign law is a fact to be found by the District Court. The District Court set out the evidence adduced, as stated previously in this judgement. There was evidence before the District Court Judge from which he could find facts as to the foreign law. The District Court did make a decision on the issue of specialty, grounded on the facts stated. The evidence adduced included that in sentencing the appellant the Courts of the United States of America could take into account uncharged and unindicted conduct, and that although the Attorney General was not seeking an order for the appellant’s extradition on Counts 16-26 of the indictment, the conduct charged on these counts could be taken into consideration by a federal court sentencing the appellant. Mr. Adams did not know if the rule of specialty would apply to a case in which the appellant had been extradited from another jurisdiction so as to prevent this occurring. He was not familiar with the manner in which the federal sentencing guidelines are applied in cases such as this. However, the sentence could not exceed the statutory maximum for the offence.

There were no conflicting experts giving evidence on the foreign law. The evidence adduced was the evidence given by Mr. Robert Adams. Foreign law is a fact to be determined by the District Court. In this case the District Court set out the evidence – of Mr. Adams – and I infer that it was accepted and thus the factual evidence in the case.

Documents
The case stated is a form of appeal where the facts found in the District Court should be set out clearly in the case stated, followed by the determination of law. This should then be followed by the question or questions of law to be decided on the appeal.

As foreign law is a matter of fact it is for the District Court to determine. While Counsel very helpfully made available the United States Federal Sentencing Guidelines and case law these are not in the same position as the issue of Irish Law. I am not in a position to consider the law of the United States as the fact of that law has been determined by the District Court. I must take the facts as determined.

This appeal is based on the findings of fact of the District Court. Legal determinations must be made on those findings of fact. Indeed, in posing the case stated on the point of law the District Judge said, “whether upon the foregoing facts, I was correct …………. in law.”

Irish Law on Specialty
The Irish law on specialty is to be found in s. 20 of the Extradition Act, 1965.
It provides:

“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 county 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 form 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 for 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 Treaty on Extradition between Ireland and the United States of America (13 July 1983) provides in Article XI:
1. 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, unless:

(a) the person has left the Requesting State after extradition and has voluntarily returned to it;
(b) the person, having had an opportunity to leave the Requesting State, has not done so within forty-five days of final discharge in respect of the offence for which that person was extradited; or
(c) the Requested State has consented.

2. Where the description of the offence charged in the Requesting State is altered in the course of proceedings, the person extradited shall not be proceeded against, sentenced, punished, detained or otherwise restricted in his or her personal freedom except insofar as the offence under its description is composed of the same constituent elements as the offence for which extradition was granted.
3. Unless the law of the Requesting State otherwise provide, the person extradited may be proceeded against, sentenced, punished, detained or otherwise restricted in his or her personal freedom for an offence for which that person could be convicted under the law of that State, upon trial for the offence for which extradition was granted.
4. These stipulations shall not apply to offences committed after the extradition.
The Extradition Act, 1965 (application of Part II) Order 2000 (S.I. No. 474 of 2000) recites:

‘and whereas by the Treaty on Extradition between the State and the United States of America signed at Washington on the 13th day of July, 1983… an arrangement was made with the United States of America for the surrender of persons [for] punishment for an offence specified in Article 11 thereof …Part II of the Act of 1965 shall apply …

Decision

This appeal format restricted the ambit of the appeal to the terms of the case stated. This restriction has an effect on the extent of the review by this Court of the law of the United States of America. As the law of the United States is a foreign law it is a fact found by the trial judge – a determination of the District Judge. As there was no conflicting evidence – the District Court set out the evidence adduced– it is inferred to be the factual basis and implied determination on fact of the District Judge. This is not the optimum method of stating a case. I have taken the view that the facts were determined by implication by the District Judge and on those facts he determined the law.

It is an important consideration that there was no conflicting evidence. The evidential basis that is relevant to this point is the evidence of Mr. Adams and no contrary evidence was called. It may well be that such factual evidence may not recur.

It may well be that the findings of fact in this case on the law of the United States of America are not as complete as they might be. It may well be that there are other matters of fact on the law of the United States of America that are relevant and which were not brought to the attention of the District Court. However, this case falls to be decided on the facts before it, including the determination of the fact of the foreign law, the law of the United States of America.
On the facts the District Court determined that the appellant could be punished for matters other than those for which he was extradited to the United States, this included counts on the indictment for which he was not being extradited. While Mr. Adams gave evidence that the sentence given, even taking these matters into account, would not exceed the maximum sentence for the crime for which he was extradited, it is clear that the appellant may suffer a penalty for offences for which he was not extradited.

The District Court was concerned about this matter but felt there would be fair procedures in the United States. In addition the District Court specifically referred to a power of the Irish Minister for Justice to draw to the attention of the United States of America the issue of the appellant being exposed to a greater penalty in the United States of America amongst other matters.

In this reference of the District Judge I am satisfied that the District Court erred. It is a matter for the courts to determine whether the rule of specialty will be applied on the facts found before the District Court.

I am not satisfied on the facts adduced in the District Court that the rule of specialty will apply to the appellant. It is a contravention of the rule for him to be subject to a penalty for an offence other than that for which he is extradited. While this Court is bound by the findings of fact of the District Court on the law of the United States of America and may not itself, nor indeed is it competent to determine, the law of the United States of America, these findings may not be determinative of another case.
The Treaty on Extradition between Ireland and the United State of America specifically excludes extradition for a person to be ‘sentenced, punished, detained or otherwise restricted in his or her personal freedom’ in the United States of America for an offence other than that for which extradition has been granted. Thus the decision in this case is specific to and based on the facts of this case as found in the District Court and may not be of precedential value in other cases.

I would allow this appeal on the point of the law of specialty, based on the facts as stated in the case stated by the District Court. I would answer the question in the case stated in the negative, on the issue of speciality.