Judgment Title: Minister for Justice Equality & Law Reform -v- Tighe
Neutral Citation: IESC 61
Supreme Court Record Number: 20/09
High Court Record Number: 2008 48 EXT
Date of Delivery: 21/12/2010
Court: Supreme Court
Composition of Court: Murray C.J., Denham J., Hardiman J.
Judgment by: Hardiman J.
Status of Judgment: Approved
Outcome: Allow Appeal
THE SUPREME COURT
Murray C.J. 20/09
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
JAMES ANTHONY TIGHE
JUDGMENT of Mr. Justice Hardiman delivered the 21st day of December, 2010.
This is a European Arrest Warrant case. The surrender of the appellant is sought so that he can be prosecuted in the United Kingdom for four offences (“the extradition offences”) specified in a European Arrest Warrant which was issued in respect of the appellant by a District Judge (Magistrates Courts) in the United Kingdom on the 7th day of March, 2008.
This European Arrest Warrant was endorsed for execution in this jurisdiction on the 12th March, 2008, and the appellant was arrested on foot of it on the 3rd April, 2008, and brought before the High Court as required by s.13 of the European Arrest Warrant Act, 2003, as amended.
The offences to which this warrant relates are unusual ones, at least to an Irish lawyer, and, as will transpire, they are somewhat arcane. They are as follows:
“(1) Tax Fraud.
Particular of offence.
Between 1 January 1997 and 31 December 2005, with intent to defraud and to the prejudice of the Commissioners of Inland Revenue and Customs and Excise conspired together with others to cheat the Public Revenue by dishonestly submitting false 715, CIS 24 and CIS 25 vouchers issued pursuant to Inland Revenue Construction Industry Schemes.
Conspiracy to cheat the Public Revenue contrary to s.1(1) of the Criminal Law Act, 1977.
Particulars of offence.
Between 1 January 1997 and 31 December 2005, with intent to defraud and to the prejudice of the Commissioners of Inland Revenue and Customs and Excise conspired together with others to cheat the Public Revenue by reducing the taxable profits of Companies by dishonestly pretending that payments had properly been made to third parties for work purportedly carried out or services purportedly provided.
(3) Tax Fraud.
Particulars of offence.
Between 1 January 1997 and 31 December 2005, cheated the Public Revenue by failing to disclose his income to the Inland Revenue.
Particulars of offence.
Between 1 January 1997 and 31 December 2005, conspired together with others to enter into or otherwise be concerned in arrangements whereby the retention or control of proceeds of criminal conduct of others was facilitated, knowing that those others were engaged in criminal conduct, namely cheating the Public Revenue.”
Although the person supplying the information as to length of sentences does not appear to have noticed that three of the four charges relate to conspiracy rather than to a substantive offence, it appears that the offence of conspiracy to commit an offence, being a Common Law offence, carries a maximum sentence of life imprisonment, even if the sentence for the substantive offence is much less.
It is plain, therefore, that the offences in respect of which the Court has been invited forcibly to deliver the appellant out of the jurisdiction are extremely serious ones, whether viewed from the point of view of the Court, the appellant or that of the prosecutor. It is therefore all the more surprising that little care appears to have been devoted to the drafting of the European Arrest Warrant or, it must be said, to its scrutiny in this jurisdiction.
It is notorious that the law relating to the arrangements for the forcible delivery of a person out of this jurisdiction and therefore out of the protective jurisdiction of this Court, has been greatly changed by the European Arrest Warrants Act, 2003, giving effect in this jurisdiction to the “Framework Decision on the European Arrest Warrant and surrender procedure”.
This in itself is a very remarkable document. Its recitals suggest that it is the product of a long methodical process of action upon the Tampere Conclusions of 1999. But its history shows that it was in fact agreed in principle in the period of ten days immediately after the notorious terrorist outrage in New York on the 11th September, 2001. Just as strikingly the proposals which were being worked on prior to that epochal event related to terrorist crimes only but, in a period of time so short as to allow for very little, if any, consultation, it was decided to extend their effects to a very wide swathe of “ordinary” crimes. But this is history. The fact is that effect has been given to the said Framework Document by the Act of 2003.
Relevant statutory features.
Due to the narrow focus of this case it is unnecessary to discuss the Act of 2003 in general. It is sufficient to quote certain authoritative passages from the judgment of this Court in The Minister for Justice, Equality and Law Reform v. Ivans Desjatnikovs  1 IR 618. At para. 9 in this judgment, under the heading “Form of the European Arrest Warrant”, Denham J. says:
At para. 11 of the judgment Denham J. set out certain options as follows:
(a) a corresponding offence;
(b) an offence on the list in article 2.2 of the Framework Decision, in paragraph (e) of the warrant, which is ticked in the appropriate box; and
(c) it is submitted that, there being no box ticked on the list, the executing judicial authority in the requested State may, on the facts set out in the warrant hold that the offence is one specified on the list. I shall consider these three options separately.”
To anticipate, the Supreme Court held in that case that only the first two options had been created by the Act of 2003, so that it is unnecessary for us to consider any further the “third option”, for which the State had contended. In the concluding section of the judgment of Desjatnikovs at para. 69 Denham J. said:
At some point immediately after 9/11, the States which became party to the Framework Decision agreed, or were deemed to have agreed, that this requirement should no longer be necessary in the European Arrest Warrant area. They did not, however, go so far as to say that one could be forcibly delivered from one State within this area to another simply on the basis that the actions were criminal in the requesting State. Instead, they set out a list, replicated below, and provided that there could be forcible delivery in respect of conduct, criminal in the requesting State at least, which corresponded to some entry on the list. Some of these are very specific, such as the seizure of ships or aircraft, but some are extremely vague. In the present case it was submitted on behalf of the State that the matters listed are couched, not in legal language, but in “political language”, and do not constitute a list of offences but rather a list of types of conduct. Accordingly, the “double criminality” requirement may be avoided by a requesting State by “ticking” one or more of the entries on the list and establishing that the conduct alleged against the requested person meets that description.
The list referred to in the Framework Decision is as follows, in the form it takes in the European Arrest Warrant in this case:
trafficking in human beings;
sexual exploitation of children and child pornography;
illicit trafficking in narcotic drugs and psychotropic substances;
illicit trafficking in weapons, munitions and explosives;
X laundering of the proceeds of crime;
environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties;
facilitation of unauthorised entry and residence;
murder, grievous bodily injury;
illicit trade in human organs and tissue;
kidnapping, illegal restraint and hostage taking;
racism and xenophobia;
organised or armed robbery;
illicit trafficking in cultural goods, including antiques and works of art;
racketeering and extortion;
counterfeiting and piracy of products;
forgery of administrative documents and trafficking therein;
forgery of means of payment;
illicit trafficking in hormonal substances and other growth promoters;
illicit trafficking in nuclear or radioactive materials;
trafficking in stolen vehicles;
crimes within the jurisdiction of the International Criminal Court;
unlawful seizure of aircraft’ ships’
Central Point of Fact.
Against that background, it is necessary to look at what is said, or certified, in the European Arrest Warrant in the present case.
This European Arrest Warrant.
At p.2, para. (e) the warrant is said to relate to four offences in total, being the four set out above. On the following page the following certification is made:
(a) the conduct constituting the extradition offences specified in the warrant falls within the European framework list;
(b) the offence is not an extraterritorial offence;
It will thus be seen that the issuing authority, or those on whose application it issued the warrant, is not seeking to rely in the warrant on the principle of dual criminality but is certifying that the “extradition offences” are within the list referred to as the “European Framework List” and described in the preceding section of this judgment.
It should be noted that the page numbers quoted are those of the Warrant as presented to this Court. The European Arrest Warrant itself is unpaginated in its printed form.
The list itself is set out at p.5, para. 1 of the warrant: the two offences “ticked” are, firstly “Fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of the 26th July, 1995 on the European Communities Financial Interests”. And, secondly, “Laundering of the proceeds of Crime”.
Since the present case does not feature any connection with the financial interests of the European Communities, the first category relied upon is simply “Fraud”.
Next, however, there occurs a very major inconsistency in the warrant. At p. 6, at a paragraph which I think is marked II, (though it is not very easily legible, but which occurs immediately under the setting out of the “European Framework List”), the following occurs:
“(11) Full descriptions of offence(s) NOT covered by Section I above.
Section 1(1) of the Criminal Law Act, 1977,
Section 1 - Conspiracy; the offence,
Subject to the following provisions of this part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intention either -
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offences impossible,
A major conflict.
The foregoing extracts from the warrant manifest a very serious internal conflict within that important document. First, it is certified, pursuant to a United Kingdom statute, that all of the extradition offences are “within the European Framework List”. That list is set out at p.5, para. (1) of the warrant. Immediately after that list it is stated, citing an English statute, that the offence of conspiracy is NOT within the list. But three of the four offences in respect of which the forcible delivery of Mr. Tighe is sought are offences of conspiracy. There is nothing in the warrant aimed at establishing dual criminality in respect of these three offences and, having regard to the decision of this Court in
Attorney General v. Hilton  2 IR 374, it appears that no such dual criminality could in any event be established in terms of Irish Law.
In that case this Court decided that an analysis of the alleged Common Law offence of cheating the Revenue is such “as to lead to the only possible conclusion, being that no Irish Common Law offence of cheating the Public Revenue, however admirable such a law might be, exists”.
Accordingly, in terms of the warrant itself, the offence of conspiracy to commit the offence specified is not an offence within the “European Framework List”. Neither is it a corresponding offence to any offence in Ireland.
It appears to me that this very grave difficulty has arisen because the drafters of the warrant, presumably the prosecuting solicitors to the Inland Revenue, failed to distinguish between the completed offence of cheating the Revenue, which might or might not be capable of description as “fraud”, on the one hand, and the offence of conspiracy to cheat the Revenue which, as the warrant itself proclaims, is not within the framework list. Notwithstanding this, the warrant earlier contains a certificate that all of the offences were on the list.
The High Court Decision.
At p.6 of the judgment of the learned trial judge delivered the 28th January, 2009, he recorded:
There is no such equivalent provision in this jurisdiction, but the existence of the common law offence of conspiracy here is sufficient to satisfy correspondence for conspiracy”.
I cannot, with all respect, agree with this last conclusion of the learned trial judge. Conspiracy is legally classified as an inchoate offence of which there are only three: conspiracy, attempt and incitement. The word “conspiracy” itself simply means “agreement”, though with a connotation of an agreement to do something which the speaker regards as nefarious or unlawful or at least disapproves of. It can be seen from the particulars of offence in this case that the actus reus of conspiracy is described as being a specified conspiracy or agreement with others. But neither an agreement, nor an attempt, nor indeed an incitement, are criminal in themselves, whether at common law or otherwise. As Charleton J. et al remark in their “Criminal Law”, p.296:
In Criminal Law the constituent parts of an offence should be clear. The law must be certain. If there is ambiguity, it is rendered to the advantage of an accused. It is a fundamental principle that the Criminal Law must be clear and certain. The constituents of an offence must be clear and certain. The possibility that such an offence exists in our Common Law is insufficient clarity of the situation. The ambiguity as to its constituent parts is relevant. These are most relevant factors…
It has been the practice that offences of this type have been prosecuted by way of statutory offences. This is the modern practice. This is a relevant factor.”
I would respectfully adopt the foregoing observations of Denham J. cited above from Hilton.
Moreover, the parameters of the offence of cheating the Public Revenue in the United Kingdom itself are notably vague and obscure. In this country, of course, it is a constitutional imperative that the definitions of a crime be sufficiently precise and certain: see
DPP v. Cagney and McGrath  2 I.R. III, which referred to a very broadly drafted statutory offence, Reckless Endangerment.
In that case, the Court said, at p.34:
‘The offence as charged in the indictment is one of maliciously firing into the dwelling house of one William O’Donoghue and it seems to us that the proper question for our determination is whether that is, at Common Law, an indictable offence. In considering that question the Court must have regard to the fundamental doctrine recognised in these courts that the criminal law must be certain and specific, and that no person is to be punished unless he has been convicted of an offence recognised by law as a crime and punishable as such’. 
Equally in King v. The Attorney General  IR 233 Kenny J. said, at p.263:
‘It is a fundamental feature of our system of government by law (not by decree or diktat) that citizens may be convicted only of offences which have been specified with precision by the judges who made the common law, or of offences which, created by statute, are expressed without ambiguity… in my opinion both governing phrases, “a suspected person” and “reputed thief” are so uncertain that they cannot form the foundation for a criminal offence’.”
There are, of course, both in Ireland and in the United Kingdom specific statutory offences relating to the Income Tax code, including an offence of not making a return of income if one is obliged to do so. It may be that the extremely severe penalty said to be available at Common Law is a great attraction to prosecutors.
I have gained much from a reading of an illuminating article “Cheating the Public Revenue” by David Ormerod in 
Criminal Law Review, I. The author is now Professor of Criminal Justice in Queen Mary College, University of London.
Under the heading “The Scope of the Offence”, the learned author says:
The truth of Professor Ormerod’s observation is justified by a reading of the reasonably modern cases cited. Thus, R.v. Hudson  QBD 252, a case often cited for the proposition that the offence of cheating the Revenue continues to exist, takes as its starting point the case of R.v. Bembridge  22 State Trials I, and also refers to East’s Pleas of the Crown,  and Hawkins Pleas of the Crown, which went through eight editions, between 1716 and 1824. The learned and redoubtable Lord Goddard LCJ adopted the following approach:
“… deceitful practices, in defrauding or endeavouring to defraud another of his own right by means of some artful device, contrary to the plain rules of common honesty”. Equally, the ordinary meaning of the word cheat, as it appears from the Concise Oxford Dictionary entry quoted in Charleton is “deceive or to trick a person into or out of a thing”.
But in the case of R.v. Mavji  WLR 1388 the Court of Appeal in England held that the offence could be committed by omission and did not require a positive act of deceit or misrepresentation. This is a major, and recent, extension of the scope of the offence.
The Mavji formulation clearly contradicts Lord Goddard’s observation that it is too much to say that “all transactions which defraud the Crown” are criminal. It would appear, therefore, that the Common Law of England has changed significantly in this regard between 1956 and 1987. Bearing in mind the decision of this Court in Hilton, this is a further reason to conclude that there is no basis whatever for saying that the Common Law offence of cheating the Public Revenue as it is found in England (and, as far as I am aware, only in England) has any equivalent whatever in Ireland.
It thus appears that, though the Common Law offence
is still extant in the U.K. and indeed is said in the old books to have existed since the 14th century and perhaps before, it is still capable of evolution and has in fact evolved, uniformly in a manner favourable to the Crown and unfavourable to the individual. These transformations are all very significant, and a court in 1987 went markedly further, in relation to the conduct captured by the offence, than a great if somewhat uncompromising exponent of the Common Law had felt able to go thirty years earlier. Accordingly, this “cheating the Public Revenue” does not seem to me to be an offence which would meet the requirements, which exist in Ireland, that an alleged criminal offence should be certain and specific in its definition.
In light of the foregoing, it is perhaps unsurprising that Professor Ormerod ends his learned article by recommending the abolition of the offence in the United Kingdom. He says:
However, in considering three of the four offences in question here, it may not be necessary to debate the question of correspondence, because correspondence is not relied upon in the warrant. On the contrary, it is certified that these three offences are within the list of criminal conduct in the Framework Decision and then, later in the warrant, that they are not. In my view it is uniquely for the issuing State to say whether and if so where in the list of actions set out in the Framework Decision the offence for which they want to put a person on trial is to be found. The decision to charge conspiracy in this case was that of the United Kingdom Revenue Authorities and both the conflicting certifications, that conspiracy is/is not an offence within the Framework Document list, is also of their making.
I would decline to order the delivery of the applicant on these charges.
The fourth charge.
The fourth charge, described at reference 3 in the list set out above, is that of “Cheating the Public Revenue contrary to Common Law”.
By virtue of s.11 of the Act of 2003 as substituted by s.72 of The Criminal Justice (Terrorist Offences) Act, 2005, a European Arrest Warrant must set out:
“The circumstance in which the offence was committed or was alleged to have been committed including the time and place of its commission or alleged commission and the degree of involvement… of the person in the commission of the offence”.
In relation to this offence, the only particulars given are that the appellant “between 1 January 1997 and 31 December 2005 cheated the Public Revenue by failing to disclose his income to the Inland Revenue”.
In this case, the warrant does not at all specify the circumstances in which this offence is alleged to have been committed. The contents of the warrant insofar as this offence is concerned, is found at the end of p.4 and the beginning of p.5 and consist entirely of a number of statements of law. There is no statement whatever specific to the accused in respect of this offence. Remarkably, it is not even asserted that he was obliged to disclose his income to the United Kingdom Revenue Commissioners, in the first place.
Unlike the other offences this is a charge of a substantive, rather than an inchoate, offence. Whether an offence corresponds to an offence in Ireland depends on whether the acts constituting the offence, as disclosed in the warrant or associated material, correspond to an offence in this country. This charge is one which has been held not to exist as, or correspond to, an offence in Ireland (see Hilton above). The particulars given in the warrant are entirely silent on any question of fraud, or any specific deception or misrepresentation. The entirely negative offence of failing to make a disclosure of one’s income does not fit at all obviously within any of the headings in the Framework Document, and certainly not either of the two headings which have been ticked. “Fraud” is not specified as an ingredient of the offence (presumably, as we have seen above, because the U.K. Courts have held that fraud is unnecessary to constitute it) and no information as to the “circumstances” of the offence are given which would allow one to conclude either that it corresponds to any other offence actually existing in Ireland or that it is within the conduct described in the Framework Document list.
I would refuse to order the delivery of the appellant on foot of the arrest warrant in this case.