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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Egan -v- O'Toole [2007] IESC 52 (15 November 2007)
URL: http://www.bailii.org/ie/cases/IESC/2007/S52.html
Cite as: [2007] IESC 52
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Judgment Title: Egan -v- O'Toole Composition of Court: Kearns J., Macken J., Finnegan J. Judgment by: Finnegan J. Status of Judgment: Approved
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THE SUPREME COURT Appeal No. 456/2005 Kearns J. Macken J. Finnegan J. IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACT 1965 AS AMENDED BETWEEN SHANE EGAN PLAINTIFF/APPELLANT AND PATRICK O’TOOLE DEFENDANT/RESPONDENT Judgment of Mr Justice Finnegan delivered on the 15th day of November 2007On 10th December 1999 a warrant was issued by the Magistrates Court in Plymouth for the arrest of the appellant. The warrant states the offence alleged against the appellant in the following terms:-
The warrant was duly endorsed pursuant to section 43 of the Extradition Act 1965 on 11th July 2000 and the appellant was arrested on foot of the same on 21st December 2000. On 30th July 2001 the District Court made an order pursuant to section 47 of the Extradition Act 1965 for the delivery of the appellant to the authorities of England and Wales. On the same day the appellant issued proceedings pursuant to the Extradition Act 1965 section 50 as amended by the Extradition (European Convention on the Suppression of Terrorism) Act 1987 section 9 and the Extradition (Amendment) Act 1987 section 2. The relevant provisions of section 50 as amended are as follows – “50(1) A person arrested under this part shall be released if the High Court or the Minister so directs in accordance with this section (2) A direction under this section may be given by the High Court where the court is of opinion that –
(c) 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”. In the High Court the appellant sought a direction firstly under section 50(2)(bbb) on grounds of delay and secondly under section 50(2)(c) on grounds that the offence specified in the warrant does not correspond with any offence under the law of the State. The learned High Court judge refused the appellant the relief which he sought on each of the said grounds and against that refusal the appellant appeals to this court. I propose dealing with each of the grounds in turn. 1. Section 50(2)(bbb) The chronology of events disclosed on the affidavits filed in this matter is as follows:- 18th December 1996 to 22nd January 1999 Offences alleged to have been committed 1998 Complaint January 1999 investigation commenced 21st January 1999 appellant invited to meeting with the Department of Education and Employment but did not attend 28th October 1999 extradition proceedings initiated 10th December 1999 warrant issued for the arrest of the appellant by Plymouth Magistrates Court 17th December 1999 warrant received by Gardaí 8th June 2000 warrant approved by Attorney General 11th July 2000 warrant endorsed 19th October 2000 appellant working outside Ireland November 2000 to December 2000 appellant working in Luxembourg December 2000 appellant returned to Ireland 21st December 2000 appellant arrested. It was accepted by the parties that the relevant period to be considered on this issue is from the earliest date of commission of the offence, December 1996, up to the date of issue of the special summons the 30th July 2001. In Kwok Ming Wan v. Conroy [1998] 3 I.R. 527 at 553 Hamilton C.J. approved of the following passage from the speech of Diplock LJ in Kakis v. Republic of Cyprus (1978) 1 W.L.R. 779 at 783:-
The appellant here certainly from the 19th October 2000 to the date of his arrest was aware that he was been sought by the authorities in England and Wales and resided in Luxembourg and, should it have been necessary, I would have discounted this period in calculating the relevant passage of time. The terms of section 50(2)(bbb) make it clear that there are three factors to be considered by the trial judge in forming an opinion as to whether it would be unjust oppressive or invidious to deliver up a person arrested –
(2) other exceptional circumstances (3) all the circumstances of the case In considering the passage of time in this case it is appropriate to have regard to the nature of the offence which it is alleged the appellant committed – a conspiracy between the dates 18th December 1996 and 22nd January 1999. The offence by its nature is one committed in secret and its commission will not in many cases be discovered for some time. Further the representations here related to future conduct so that if as alleged they were fraudulent the fraud would not be discovered for some time after the making of the representations. Complaint was made in 1998 and the investigation commenced promptly in January 1999. On 21st January 1999 the appellant and the person with whom he is alleged to have conspired was invited to a meeting on 21st January 1999 and immediately following that meeting that person was arrested. On 28th October 1999 extradition procedures were initiated and a warrant issued for the appellant’s arrest on 10th December 1999 that warrant being received in this jurisdiction on 17th December 1999. The Attorney General’s approval was obtained on 8th June 2000 and the warrant endorsed on 11th July 2000. I am not satisfied on these facts that there was either complainant or prosecutorial delay. Lapse of time between 19th October 2000 and the appellant’s arrest was due to the appellant’s absence abroad. I am not satisfied that the lapse of time in this case represents such delay as would render the appellant’s return unjust, oppressive or invidious. In the circumstances of this case it is not necessary to have regard to the lapse of time as the appellant in the affidavits filed in this matter has not disclosed any exceptional circumstances which could make his return at the 30th July 2001 unjust, oppressive or invidious in the sense required by the authorities on s. 50(2)(bbb). In these circumstances the appellant has failed to satisfy me that he is entitled to the direction which he seeks under section 50 of the Act of 1965 on this ground. 2. Section 50(2)(c) The appellant submits that the offence specified in the warrant does not correspond with any offence under the law of the State. The learned trial judge held that the offence specified in the warrant corresponds with the common law offence of conspiracy to defraud. The Extradition Act 1965 section 42(3) as inserted by the Extradition (European Union Conventions) Act 2001 section 26 provides as follows:-
(b) in the case of an offence so specified consisting of one or more acts including any act committed in the State, such act constitute an offence under the law of the State on the day on which it was committed or alleged to have been committed.” The offence alleged in the warrant would, of course, have corresponded with an offence under the Criminal Justice (Theft and Fraud Offences) Act 2001 had that Act been in force on either of the dates relevant for the purposes of section 42(3). In Myles v. Assistant Commissioner of An Garda Síochána [1999] 4 IR 294 the applicant’s extradition to England was sought on a charge of conspiracy to defraud. On behalf of the applicant it was contended that the offence did not correspond with any offence known to Irish law or, if it was, that the offence had not been carried over under the Constitution. The applicant failed on both contentions. Geoghegan J. adopted the definition of conspiracy to defraud from Scott v. Metropolitan Police Commissioner [1975] AC 819 –
The approach to be applied in relation to the issue of correspondence as set out by Henchy J. in Hanlon v. Fleming [1981] I.R. 489 at p. 495 is as follows:-
The factual components of the offence alleged against the appellant as they appear in the warrant are as follows:-
2. to obtain dishonestly 3. by deception namely by falsely representing. The ingredients of the common law offence of conspiracy to defraud as set out in Scott v. Metropolitan Police Commissioner are:-
2. to dishonestly deprive a person of something which is his Comparing the ingredients of the offence alleged in the warrant and the definition of the common law offence it is immediately clear that the latter does not require as an ingredient deception. However in Scott v. Metropolitan Police Commissioner the appellant argued that the Court of Appeal (1974) Q.B. 733 was wrong to say that “neither principle nor authority drives us to the conclusion that the common law offence of conspiracy to defraud is limited to an agreement … to deceive the intended victim.” In the House of Lords Viscount Dilhorne said that one must not confuse the object of a conspiracy with the means by which it is to be carried out and that in a great many cases fraud has been perpetrated by deceit: however it does not follow that deceit must be the means. It is clear from this that where the conspiracy is to defraud by means of deceit the common law offence is established. However the appellant argues that the reference in the warrant to “by falsely representing” results in there being no correspondence as it is well established that a statement of intention about future conduct, whether or not it be a statement of existing fact, is not a statement that will amount to a false pretence at common law: R v. Dent (1955) 2 Q.B. 590. The false pretence in the present case is the means by which the object of the conspiracy is to be carried out the object being dishonestly to obtain money transfers. To constitute the offence of conspiracy to defraud it is not necessary that the means constitute a criminal offence: see Halsburys Laws of England third edition Volume 9 at p. 709:-
In Scott v Metropolitan Police Commissioner Viscount Dilhorne carried out an exhaustive survey of the history and development of the offence of conspiracy to defraud. He concluded that while in the vast majority of fraud cases the fraud has been perpetrated by deceit it does not follow that deceit is a requirement of the offence: what is required is dishonesty. He identified a series of cases in which there was a conviction although there was no false representation: see p.837. He distinguished between the object of a fraud and the means whereby it was to be perpetrated. The object is to perpetrate a fraud – to cause the victim economic loss. To constitute the offence the means must be dishonest. Lord Diplock in his judgment at p.841 held that it is not necessary that the means should constitute a crime: nor is it necessary that the means involve fraudulent misrepresentation such as is needed to constitute the civil tort of deceit. Dishonesty of any kind is enough. In a civil context, however, a statement of intention involves a representation as to the existence of the intention: Edgington v Fitzmaurice [1885] 29 Ch D 459. Thus representation in the civil law has a wider meaning than in criminal law. A fraudulent misrepresentation will ground a civil action for deceit. In Scott v Metropolitan Police Commissioner at 839 Viscount Dilhorne said:-
Thus the representation if fraudulent is dishonest. It is immaterial that it could not amount to a criminal offence. It follows that in this case the means whereby the offence was to be completed were unlawful at civil law the alleged representation amounting to deceit and the offence of conspiracy to defraud is accordingly clearly established by the factual circumstances set out in the offence alleged against the appellant in the warrant. It is not material that the means whereby the conspiracy to defraud – “by falsely representing” – could not have led to a conviction for the offence of conspiring to obtain money by false pretences: it is sufficient for the common law offence in the State if the means is a civil wrong of deceit and the element of dishonesty is thereby satisfied. Accordingly looking at the factual components of the offence alleged in the warrant and of the offence of conspiracy to defraud contrary to common law I am satisfied that there is correspondence. The appellant is not entitled to the direction which he seeks on this ground.
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