Supreme Court of Ireland Decisions

Judgment Title: MJELR -v- Sas

Neutral Citation: [2010] IESC 16

Supreme Court Record Number: 444 & 445/08

High Court Record Number: 2008 165 EXT

Date of Delivery: 18/03/2010

Court: Supreme Court

Murray C.J.
Geoghegan J.
Finnegan J.



IN THE MATTER OF THE EUROPEAN ARREST


WARRANT ACT, 2003 AS AMENDED





BETWEEN/


THE MINISTER FOR JUSTICE,


EQUALITY AND LAW REFORM

JUDGMENT of Mr. Justice Geoghegan delivered the 18th day of March 2010

As there is an appeal and cross-appeal to this court and to avoid confusion, I will refer throughout this judgment to the above-named Minister as simply “the Minister” and to the above-named Dariusz Sas as simply “the appellant”.

The appeal and cross-appeal derive from the decision of the High Court (Peart J.) relating to a single European Arrest Warrant emanating from a judicial authority in Poland and relating to four separate offences for which the appellant had been sentenced in Poland. The learned High Court judge had refused to surrender the appellant in respect of the first two offences specified in the warrant but had ordered his surrender in respect of the remaining two offences. The appellant has appealed the said order for his surrender and the Minister has cross-appealed in respect of the refusal to surrender on foot of the first two named offences. To understand the approach adopted by the High Court, it is important that I summarise the contents of the warrant.

In the section of the warrant describing the offences, the first offence is described as follows:


“I. from 17th September 2002 to 10th February 2003 in Koszalin, at BP Orion petrol station acting within short periods of time and realizing his deliberate intention he stole

– on 17th September 2002, 29.42 litres of Pb-95 petrol worth 100.32 PLN,

- on 24th September 2002, 18.98 litres of Pb-95 petrol worth 69.74 PLN,

… … … … … … … … … … … … …

… … … … … … … ... … … … … …”.


I do not find it necessary to give the entire quotation. The two examples I have cited are the first two in a list of eighteen later dates with, in each instance, a particular litre quantity of petrol and the value thereof specified. At the end of the list are the following words:

“which was a total amount of 3,064.07 PLN to the detriment of BP Orion Koszalin (II K417/03).”

The description of the second offence was as follows:

“II. On the night of 13/14 March 2003 in Koszalin he stole two fog headlights and other things worth together 1,000 PLN from VW Passat, registration number ZK17361 which was to the detriment of Dorota ¯ak (II K612/03).”

The third offence was described as follows:

“III. From February 2005 to September 2005 in Koszalin he abused his mother Teresa Sas psychically by opening up quarrels and threatening her life by mutilation and burning out. He also insulted her. (II K87/06).”

The fourth offence was then described as follows:

“IV. 2nd December 2005 in Koszalin in Zwyciestwa Street while being drunk (O.32 mg/I) he was cycling on a public road (II K8706).”

The principal issue in the High Court was the question of correspondence. The proceedings did not involve any offence within the box E.1 which dispensed with the necessity of proving correspondence. On the ground of the lack of correspondence and only on that ground the High Court refused to surrender, as already mentioned, in relation to the first and second offences listed in the warrant but made an order for surrender in respect of the third and fourth offences. As the appellant has appealed that last order, I will deal with that ahead of the cross-appeal by the Minister in respect of the refusal order.

For this purpose I turn first to the judgment of Peart J. and his reasons for the granting of the order of surrender in respect of the third and fourth offences. He delivered an ex tempore judgment in which in relation to the last two offences he said the following:


“Those two offences, one being, certainly in this jurisdiction and I suspect in Poland is either a misdemeanour or certainly a minor offence of some kind, which is riding his bicycle while drunk, and the other offence of abusing his mother and making threats to her life. There is some supplemental information in relation to the threat to kill offence which has been supplied by the issuing judicial authority in a letter dated 27th October 2008. That letter adds some information to the description of this offence as contained in the warrant itself. That information states that the respondent made a threat to kill to his mother, intending that they (sic) would believe that the threat would be carried out. That, added to what is contained in the warrant itself, namely, that he psychically abused his mother by opening up quarrels and threatening her life by mutilation and burning out is said to amount to an offence here under section 5 of the Non-Fatal Offences against the Person Act, 1997. Mr. Byrne has submitted in relation to the threat to kill offence that it is important to notice that the offence is not stated to have occurred on a particular date, but rather during a period from February 2005 to September 2005, and that there was a lack of detail as to exactly what the threat consisted of, and the date and place perhaps at which it is said to have occurred. And certainly the particular date on which it occurred is not contained other than by reference to a period from February ‘05 to September ’05. But it is stated that it occurred in Koszalin which I presume is a town in Poland. But the section 5 offence itself does not actually require that the particular means by which the threat was carried out was made, be specified, in my view because the section itself says that it is a threat by any means. There is, nevertheless, some information as to what the threat consisted of, because in the warrant itself, it says that he threatened her life by mutilation and burning out. I think that is fairly clear as to what it is alleged he did and for which he has actually been convicted in Poland. And as I have said, the additional information just adds an extra ingredient that would be necessary for the section 5 offence, namely, that it is alleged that the respondent intended that she would believe that that threat would be carried out.

So, in my view, there is sufficient in this warrant for correspondence to be made out with the offence of a threat to kill under section 5, as submitted by Ms. Dempsey as the corresponding offence, and there is no contest that there is a corresponding offence to riding his bicycle while drunk offence, that offence correspondent (sic) to the one under section 51(1)(b) of the Road Traffic Act, 1961 as amended.”


I think it useful at this point to cite section 5 subsection (1) of the said Act of 1997. The subsection reads as follows:

“A person who, without lawful excuse, makes to another a threat, by any means intending the other to believe it will be carried out, to kill or cause serious harm to that other or a third person shall be guilty of an offence.”

Although in the notice of appeal, there are nominally five grounds of appeal, in reality there are only two. The first is that the learned trial judge erred in law in holding that the alleged acts of the appellant are described with sufficient particularity and detail to permit a finding by the judge that the offence is a “corresponding offence” within the meaning of section 5 of the European Arrest Warrant Act, 2003 as amended or in other words that it corresponds to the offence under section 5 of the said Act of 1997 cited above. I have already quoted what the judge had to say about this issue. Having so ruled, he added that counsel had referred him to a judgment of Denham J. delivered in the Supreme Court on the 31st July 2008 in Minister for Justice, Equality and Law Reform v. Desjatnikovs which contained the following passage:

“The fact that there is a precise description of the facts of the case is important. Even though the issue of double criminality is not required to be considered, it is important that there be a good description of the facts. An arrested person is entitled to be informed of the reasons for his arrest and of any charge against him in plain language which he can understand. Also in view of the Specialty Rule, the facts upon which a warrant is based should be clearly stated.”

It is clear from the passage in the judgment of Peart J. immediately after that quotation that he did not consider that Denham J. was laying down any new principle but was simply reiterating well established principles. The judge acknowledged that “there must be a certain level of information sufficiently clearly stated in a warrant so that first of all the court, when called upon to do so, can be satisfied that the acts of the respondent in the issuing State are such as if committed in this jurisdiction they would give rise to an offence here.”

In written and oral submissions before this court, the appellant has for the first time raised an objection to the use of the additional material. In supplemental written submissions on behalf of the Minister the following is stated.


“It is respectfully submitted that the issue of admissibility of information received was not raised in the respondent’s notice of appeal, it was not objected to in the Points of Objection nor indeed was it argued at the section 16 hearing on the 19th December 2008. It is respectfully submitted that the issue does not arise in any real sense, in that the information obtained by the Central Authority pursuant to section 20(1) and 20(2) of the Act and its accuracy is not disputed by the appellant. Further it is submitted that the information received, which is not by cogent evidence disputed, can be acted upon.”

I entirely agree with that objection and would not regard the appellant’s new complaint as a valid ground of appeal. The appellant purports to rely on respective dicta of Murray C.J. and Macken J. in Minister for Justice, Equality and Law Reform v. Sliczynski, unreported judgment of the Supreme Court 19th December 2008. I am not satisfied that either of the judgments in that case in any way supports the appellant’s objection even if it were allowed to be aired at this late stage. At any rate, the main point made by the appellant is, in my view, fatuous namely, that there was not formal proof that the Central Authority in the State was of opinion that the documentation or information provided to it was not sufficient to enable it or the High Court to perform functions under the Act. Presumably, the Central Authority must be taken to have at least had that apprehension. But, at any rate, for the reasons which I have indicated, I agree with the Minister that this objection should not be entertained at this late stage and furthermore, I am not necessarily satisfied that the original information on the warrant itself was not sufficient. There seems to me to be no merit in the objection.

The second ground of appeal is, in my view, clearly misconceived. It arises from a misunderstanding of the judgment of Murray C.J. in Minister for Justice, Equality and Law Reform v. Ferenca delivered in the Supreme Court on the 31st July 2008. The Chief Justice never suggested that where there was a European Arrest Warrant in respect of two separate offences for which a composite sentence had been imposed there could not be a surrender because the Irish courts would have no way of knowing whether either offence failed to comply with the so called “minimum gravity” test provided for in section 38 of the European Arrest Warrant Act, 2003 as amended. The difficulty in the Ferenca case was that in relation to two offences, for which there was a composite sentence, the court was acceding to the request for surrender only in respect of one of them. Clearly, a problem did arise in that instance, as succinctly pointed out in the fourth last paragraph of the Chief Justice’s judgment. The relevant passage reads as follows:


“As I pointed out at the outset and which is clear from the terms of the European Arrest Warrant, the sentence imposed is a single sentence, which one might call a composite sentence, imposed for the three offences collectively. If the appellant were to be surrendered to serve that sentence he would be surrendered to serve a sentence which was in part imposed for the first offence. I have already concluded above that the first offence is an offence for which section 38(1) says the appellant should not be surrendered. There is obviously no basis on which this court can apportion part of the sentence of two years and nine months among the three offences so that he could be surrendered for the purpose of serving the amount of the sentence which related to the second and third offence.”

The learned trial judge himself was conscious of this distinction when he commented in the second last paragraph of his judgment as follows:

“It is not necessary, therefore, for me to say anything more about what the consequences might have been if there was no correspondence in respect of one of the two offences for which a composite sentence was imposed. So, it follows from all of this that I am required to make an order for the surrender of the respondent so that he can serve the sentence of imprisonment imposed upon him in respect of the two offences…”

Even though Peart J. was mindful of the distinction there is nothing in his ex tempore judgment to suggest that the judgments of this court in the Ferenca case were cited and, in particular, the last cited passage from the judgment of the Chief Justice, even though the Supreme Court judgments had been delivered several months earlier. It would seem to me to have been implicit in that passage from the Chief Justice’s judgment in Ferenca that he would have seen no problem with the composite sentence if surrender was being effected in respect of each of the offences the subject matter of the sentence, provided of course, that the composite sentence exceeded the threshold or “minimum gravity”. The minimum gravity test as provided for in the Framework Document and enacted in the European Arrest Warrant Act, 2003 was concerned with the length of a particular sentence the offender was called upon to serve. Provided there was the necessary correspondence, it is immaterial that the sentence related to more than one offence.

Although the view which I have expressed seems to me to be implicit, for the reasons indicated, in the judgment of the Chief Justice in Ferenca, it is true that the precise point did not directly arise in Ferenca and in that sense the implicit view might be regarded as obiter dicta. But it is difficult to see how such a view could be challenged.

As pointed out in the written and oral submissions on behalf of the Minister, the point did directly arise in a House of Lords appeal, Pilecki v. Circuit Court of Legnica, Poland [2008] 1 WLR 325. Lord Hope of Craighead in an opinion with which the other members of the appellate committee concurred, held that where a Polish court had aggregated a number of sentences for the purposes of its final judgment, the aggregated sentence exceeding four months and where it was not possible to say how much of the aggregated sentence was attributable to each offence, it was the length of the sentence alone that determined whether or not it fell within the scope of a European Arrest Warrant. If there was a composite sentence in respect of two offences for which otherwise surrender should lawfully be made, there was no necessity to make any further enquiry into the sentence. That opinion was primarily based on the Framework Document. I am satisfied, for the reasons which I have indicated, that Irish law is no different and I would dismiss the appeal.

I move now to the cross-appeal. The learned trial judge summarised the first offence as being “in respect of theft of petrol basically, on quite a number of dates as appear in the warrant itself” and the second offence as being “described in the warrant as being the stealing of two fog headlights and other things worth 1,000 Polish Zloty from a VW Passat, which is said to have been to the detriment of a named person, that named person not being described as the owner of those goods.” Having summarised them thus, the judge went on to consider the issue of correspondence in relation to each of them. Despite the careful analysis which the learned trial judge applied to his task, and his considerable experience in relation to European Arrest Warrant cases, I have reluctantly come to the view that on this occasion he fell into error in the conclusions he arrived at in respect of the first two offences. On my reading of his ex tempore judgment the error was contributed to by a combination of a particular approach adopted, no doubt conscientiously, on behalf of the Minister and the non-availability for the judge of the relevant legislation. As already mentioned, the first offence related to the theft of petrol on eighteen different dates between the 17th September 2002 and the 10th February 2003. It will be recalled that the warrant simply stated that the appellant “acting within short periods of time and realising his deliberate intention” “stole” particular quantities of petrol specified “to the detriment” of the named petrol company. It would seem that State’s legal advisers must have taken the view that they could not rely on section 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 to establish correspondence. Instead and rather eccentrically, in my view, reliance was placed on section 8 of that Act. The judge expressly mentioned that he did not have the Act before him but that he believed that section 8 was basically an offence of making off without paying for something that requires payment on the sport. That is quite correct and in fact subsection (1) of the section reads as follows:


“Subject to subsection (2), a person who, knowing that payment on the spot for any goods obtained or any service done is required or expected, dishonestly makes off without having paid as required or expected and with the intention of avoiding payment on the spot is guilty of an offence.”

Subsection (2) goes on to provide for exceptions. In so far as the learned trial judge did not accept the argument on behalf of the Minister in this respect I believe that he was clearly correct. If section 8 was to be relied upon for correspondence there would have had to be much more precise detail set out in the warrant. In fairness to the Minister he seems to have relied also on section 4. Subsection (1) of that section reads as follows:

“Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.”

What the judge said is the following:

“I am not satisfied that there is sufficient detail contained in this Polish warrant in relation to that offence simply by reference to the use of the word ‘stole’. In order to establish correspondence or be satisfied as to the correspondence for the purpose of section 5 of the Act, it is necessary for this court to know precisely what it is that the respondent did in order to complete the offence for which he either is accused and sought for prosecution for or that he is being convicted of. The use of the word ‘stole’ while is it a word in common use in the English language, has a technical meaning under section 2, I think it is, of the Criminal Justice (Theft and Fraud Offences) Act. And simply because what did he (sic) amounts to stealing in Poland, does not necessarily mean that what he did satisfies all the various ingredients of the theft of stealing here. There is absolutely no detail of the precise manner in which the respondent behaved on these occasions and what did (sic). And I am not satisfied, therefore, that it is possible simply by the use of the word ‘stole’ to make out correspondence with the offence here under section 4 of the 2001 Act. Therefore he cannot be surrendered in order to serve the sentence of one year’s imprisonment which was imposed in respect of that offence.”

I cannot agree that the use of the word “stole” is not all important. For the purposes of interpreting the warrant “stole” must be given its popular meaning. In adopting this exercise, special refinements of definition for the purposes of an Irish prosecution as contained in the Irish Act are irrelevant. The word “stole” in the warrant must be given its normal popular meaning. Furthermore, the very word “stole” implies in itself the existence of mens rea. The words “realising his deliberate intention” contained in the warrant in relation to the first offence actually express the mens rea but I do not think that that is necessary. As to the sufficiency of the word “stole” alone, it will always depend on the context and the general nature of the offence. As a matter of common sense interpretation in this case, it is obvious that on many occasions the appellant stole petrol without paying for it and was convicted. That set of facts, if it applied in Ireland, would clearly constitute an offence under section 4(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The word “stole” necessarily implies intention to deprive the owner of the goods in question against the owner’s will. Again, in this particular case this consequence is in reality expressly stated by the words “to the detriment of BP Orion Koszalin”. There was clearly correspondence as required by the Act and the Framework Document. I would, therefore, allow the cross-appeal in respect of that offence and order the surrender of the appellant accordingly.

The views which I have just expressed in relation to reliance on the popular meaning of the word “stole” seem to me to be fully supported by authority and in particular by Attorney General v. Dyer [2004] 1 IR 40. In the judgment of the Supreme Court in that case delivered by Fennelly J., the following passage appears at page 50.


“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 to 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.”

I consider that the same position applies in relation to the second offence. For clarity, I will set out again the exact wording in relation to this offence. It reads as follows:

“On the night of 13/14 March 2003 in Koszalin he stole two fog headlights and other things worth together 1,000 PLN from a VW Passat, registration number ZK17361 which was to the detriment of Dorota ¯ak.”

What I said about the word “stole” in relation to offence number 1 applies equally to offence number 2. It is true that there are no words equivalent to “realising his deliberate intention” in relation to the second offence. But as I have already indicated, I do not think that it is necessary to set out express words indicating mens rea if a word such as “stole” or its cognate equivalents is used. The popular meaning of the word clearly brings in the mens rea. The learned trial judge, however, took a different view. The judge remarked that “curiously” section 4 was not relied on by the Minister for the purpose of establishing the necessary correspondence in relation to this offence. Instead what was relied on was the offence of causing criminal damage under section 2 of the Criminal Damage Act, 1991. Quite correctly, the learned judge rejected outright that argument making the comment that he was not satisfied at all that there was anything in the warrant to suggest that there was anything damaged. But he rejected section 4 also for the same reasons as he had expressed in relation to the first offence. He, again, pointed to the specific ingredients required in order to make out an offence under section 4. I would reiterate that he ought to have adopted the popular meaning of “stole” as expressed in the warrant and if he had done that, he would surely have come to the conclusion that the behaviour did in fact constitute an offence under section 4 if committed in Ireland. I would, therefore, allow the appeal in relation to this offence also and make the appropriate order for surrender.