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Cite as: [2015] IESC 59
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Judgment
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THE SUPREME COURT APPEAL NO. 148/13 Murray J. O’Donnell J. McKechnie J. MacMenamin J. Dunne J.
BETWEEN ATTORNEY GENERAL APPLICANT AND
RENALDAS POCEVICIUS RESPONDENT/APPELLANT JUDGMENT of Mr. Justice William M. McKechnie delivered on the 24th day of June, 2015 Introduction:
2. In the notice of appeal dated 10th April, 2013, the following three grounds are relied upon: these read as follows:-
(2) The learned trial Judge erred in law and/or in fact in concluding that the surrender of the Appellant/Respondent would not be disproportionate in the circumstances of this case. [Issue No. 2] (3) The learned trial Judge erred in law and/or in fact in determining that the surrender of the Appellant/Respondent did not contravene the provisions of s. 15 of the Extradition Act, 1965.” [Issue No. 3]
3. In considering the first objection made, it is important to note that an understanding of the Norwegian criminal process is essential, as much of the debate centres on when and at what point in that process it can be said that for the purposes of s. 9 of the Extradition Act 1965, as amended (“the 1965 Act”), a person “is being proceeded” against (para. 30 infra). In essence, Mr. Pocevicius (“the respondent” or “the appellant”) alleges that until a formal prosecution has been instituted, in respect of the extraditable offence, the provisions of this section are not engaged. The Attorney General’s position on the other hand is that this is not so: she says that once extradition is not being sought to further gather evidence upon which a future prosecution depends, and once a decision to charge has in fact been made, there is a sufficient compliance with the section. The evidence therefore tendered by the requesting country is critical to this issue.
4. Ground No. 2 is in effect self-explanatory, but in any event it was not proceeded with as part of this appeal. Ground No. 3, which is referable to s. 15 of the 1965 Act, involves, inter alia, a consideration of what precise charge is being levelled against Mr. Pocevicius and what are its essential elements: in addition, the question arises as to whether the establishment of the respondent’s presence in Norway on the date of the alleged offence is critical in this regard.
The Domestic Regime:
Background - to the Offence:
7. As part of their investigation, the police discovered that the phone number in question had been “established” by Mr. Pocevicius at a petrol station in Klepp, Norway, on 22nd August, 2008, where as part of this purchase he produced his own driving license as documentary proof of identity. On the previous day he had arrived in Stavanger and stayed in Norway until 27th August, 2008, when he returned to Ireland. By way of telephone interception it was revealed that all traffic on this phone number during the period of his stay related to or involved the respondent. It was further alleged in the Rogatory Commission that the respondent also arrived in Norway immediately prior to the importation of the drugs, and left immediately after the arrest of Mr. Oleinik.
8. As documentation was being exchanged as part of these proceedings, controversy emerged as to the whereabouts of Mr. Pocevicius on the actual date of the alleged offence. He admitted to being in Norway in September, 2008 but said that he left on 21st September, on a flight from Stavanger to Dublin via Copenhagen: he then travelled by train to Cork where he lives. He also alleged that on 24th September he signed on at the local social welfare office in Clonakilty. Some verifying documentation has been produced in respect of these matters. The Norwegian authorities however reject the claim that he was not in Norway on 25th September, 2008.
9. In a further review of the information available, the Norwegian authorities point to the fact that whilst a gap in the phone traffic, as recorded on the Norwegian network in respect of the aforesaid number, started on 21st September, 2008 at 2.00, it ended on 25th September, 2008 at 00.47, the night before Mr. Oleinik was arrested. They also refer to a tapped conversation from this phone which was timed as taking place on 27th September at 20.23, involving a male person who said that he had travelled 1,000 kilometres, part of which was through England, and that at the time of the call “…it is raining here in Norway…”. Therefore, Mr. Pocevicius’s denial of being in Norway on 25th September, 2008, is strongly disputed.
10. It will be apparent from the preceding paragraphs, that the information supplied regarding the dates of the respondent’s alleged entry into, and departure from, Norway is not entirely consistent. This is not in any way critical save perhaps for his whereabouts on 25th of September, 2008. In any event a resolution of this factual conflict is not a matter for this Court, and moreover such is not required so as to determine this appeal. It must be noted that it has never been seriously suggested that there is insufficient evidence upon which an extradition request could be made, if the same was otherwise lawful. In addition, apart possibly from ground No. 3, the actual state of the evidence underlying the alleged offence(s) is likewise not material. The conflict therefore, such as it is, must await resolution by the Norwegian trial court, if the proceedings get that far.
Background - To the Basis of the Extradition Request: “…with offences contrary to:-
in that he has unlawfully manufactured, imported, acquired, stored, or conveyed drugs, and the offence concerns a very significant quantity
12. On 25th November, 2008, Stavanger District Court issued what is described as an “Arrest Order” in respect of the respondent by reference to the offence above mentioned. It did so under s. 175(2) cf. Section 171 Nos. 1 and 2 of the Norwegian Criminal Procedure Act and Article 95 of the Schengen Convention. That arrest order was “maintained” by different court orders on several occasions thereafter, including one pronounced on 1st March, 2011, which remained valid for a period of twelve months therefrom.
13. By Rogatory Commission, issued by the Rogaland Public Prosecution Service on 12th October, 2010, the extradition of Mr. Pocevicius was sought, based on that and the other documents travelling therewith. At the time he was, and indeed remains, living with his family in this jurisdiction. The said request, which was supported by order of the High Court dated 14th day of September, 2011, was executed via the arrest of the respondent on 17th September, 2011 and his court appearance some days later. He was released on bail and as stated, pending the determination of this appeal, so remains.
14. The Norwegian authorities submitted additional information to this country on 19th April, 2012 and on 7th June, 2012. On foot of the documentation as it then existed, the challenge to the extradition request based on the Points of Objection lodged on 14th May, 2012 opened before Edwards J. on 25th July, 2012. At the end of Day 1 however, the learned judge was anything but satisfied as to the evidence available on certain crucial questions. In his view, the additional information “far from clarifying” the situation, “created [even] greater uncertainty”. Accordingly, as a direct result of the necessity for further clarification, the case was deferred. Subsequently, further evidence was submitted in affidavit form by Mr. Tormod Haugnes who, as a public prosecutor in Rogaland County, had in effect operative responsibility for the extradition request. The case then resumed and proceeded to the conclusion as above outlined.
Background - to the Norwegian Criminal Process:
16. After the trial judge’s intervention much more material came to light by way of two documents, the first of which was dated 12th September, 2012 (additional information No. 3 (“A.I. No.3”)), and the second of which was dated 19th October, 2012 (additional information No. 4 (A.I. No.4”)).
17. The following information in summarised form, appears in A.I. No. 3:-
(4) The Director General of Public Prosecutions (or “the Director General”) brings “indictments” in the most serious crimes; when these reach him, they come with a recommendation from the public prosecutors. The Office of the Director General, does not of itself handle cases, apart from a few test cases which it moves before the Supreme Court. 18. The distribution of competence between these three agencies as to which one should decide on the question of an “indictment” (para. 19 infra), is largely linked to the maximum sentence available for the criminal activity under investigation. The longer the sentence the higher the level at which the decision to indict is taken. As the respondent in this case is charged with an offence(s) which carry a maximum sentence of 21 years, the Director General must decide on the indictment: “It is for this reason that it is the Director General of Public Prosecutions who will take the final decision as to whether or not to indict Pocevicius for this criminal offence”. (A.I. No. 3)
19. In addition, it is important to note that a distinction is made in Norwegian criminal law between a “charge” and an “indictment”. The decision to “indict” is a decision to bring the case before the court so that a verdict, on the evidence and the law, can be given. On the other hand “to charge” a person is to level a preliminary accusation against him: this is done during and as part of an investigation and is referable to mattes such as, inter alia, arrests, searches or other such investigative steps. As the police investigate all criminal cases in Norway it is they who formally charge all suspects, regardless of the maximum or minimum sentence involved.
20. With specific reference to Mr. Pocevicius, the position as outlined in A.I. No.3 is that the police prosecuting authority have charged him with a serious drug offence. As his extradition is being requested, an “Arrest Order” has been made and has been maintained by the local District Court, over a three and a half year period. Since the Rogatory Commission has been initiated by the public prosecution service, such service has also presented as part of this process, a “provisional assessment” to the effect that based on the existing evidence, grounds exist for issuing an indictment against the respondent. This means, according to Mr. Tormod Haugnes, that:
21. What remains to be done however is primarily to question the respondent, who may of course refuse to answer any questions put to him, by either the police or the court. If he should however make a statement, this will be taken into account and may lead to further investigations, the purpose of which would be to confirm or disprove any such statement so made. If he should decline to do so, then the file will be submitted to the Director General with its existing information, for ultimate decision. Finally, it should be noted that if there are good grounds for so doing, the police may continue their investigation even after the laying of an indictment. This obligation, which cannot be abandoned, derives from the duty of “objectivity” which rests on the police and the police prosecuting authority, to pursue their search for any further information, which, if available, may be of assistance to, or otherwise benefit, the charged or indicted person.
22. The final supplement of evidence (A.I. No. 4) to the Rogatory Commission is again from Mr. Haugnes and is dated 19th October, 2012. It is more convenient, and perhaps even more productive, to quote from it in full rather than to summarise it: it is not very long in any event and reads as follows:-
It is not a requirement under Norwegian law for a suspect to be questioned before bringing an indictment against him. No-one is obliged to make a statement to the police in Norway, and a suspect/charged person…are also not obliged to make a statement to any court of justice. Consequently, an indictment may be brought without the indicted person having made a statement. However the charged person’s statement is considered so important to the total evidential situation that it would contravene best prosecution practice not to question a suspect if he/she is willing to make a statement.” 23. On the respondent’s side, Ms. Maren Østern, a lawyer in the Norwegian firm of Hestenes og Dramer & Co., submitted an opinion on behalf of Mr. Pocevicius: however, the same related to an aspect of Norwegian law which is quite unrelated to the matters covered by the information supplied by the requesting authority. Accordingly, in the absence of any conflicting evidence, the learned trial judge was left to rely solely on Mr. Haugnes and to make such findings and draw such inferences therefrom, as might be appropriate.
Issue No. 1: “Proceedings” for the Purpose of Section 9 of the 1965 Act:
25. Extradition in some form has been known for centuries: Extradition Law in Ireland (Michael Forde; Dublin; Thomson Round Hall; 2005; 3rd ed.; paras 1.01 - 1.05). Countries at different periods have had various agreements providing for the mutual transfer of persons wanted to stand trial or to serve imposed sentences. In the early stages these were mostly effected by single treaty arrangements. However, as the international mobility of suspected offenders and convicted criminals greatly increased, multi-lateral treaties began to emerge. One such, of course, was the 1957 Convention which was conceived within, and later developed to finality, via the Council of Europe.
26. Quite evidently the operation of the Convention involved the accommodation of many different police, judicial, legal and administrative systems: a fact known to all countries, at least to some extent, when becoming a party to its terms. Therefore, the implementing provisions adopted by each contracting state had to have regard for such diversity, as otherwise the effective enforcement of the Convention had no prospect of flourishing or even perhaps of survival. Thus, the desired effect sought to be achieved by the enactment of the 1965 Act must never be lost sight of: this to include its intended reach, extending as it does well beyond national boundaries. This interpretative approach at a general level is with obvious modification equally applicable to the 2003 Act.
27. Before considering the relevant provisions of the 1965 Act, it is necessary to refer to Article 1 of the Convention which sets out in an overall sense the obligation to extradite which has been undertaken by each participating country. That Article reads as follows:-
The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.” (emphasis added) 28. As appears from its wording it covers two distinct groups of persons who are separated by quite different sets of circumstances. The first relates to individuals against whom the requesting country “are proceeding for an offence”: but such persons quite obviously have not been, in respect thereof, the subject of any determination of guilt or innocence. The second refers to persons who are “wanted” in the requesting country, to serve or serve out a jail sentence or a detention period, imposed by preceding order. Accordingly, a sharp distinction exists between one class and the other as it does with the circumstances which give rise to such persons’ discrete and individual status, at the time. All of this is clearly recognised in the terms of Article 1 itself. This is of some importance when considering certain provisions of the 1965 Act.
29. There are only two provisions of that Act which are directly in play, the first of which is s. 8(1), contained in Part II, which in its amended form states as follows:-
(b) in relation to a place or territory for whose external relations that country is (in whole or in part) responsible.” (emphasis added) 30. The second is s. 9 of the Act which is the critical provision as it is under that section that the State’s obligations directly arise. It reads:-
31. As appears from the above: Article 1 of the Convention refers to persons against whom the requesting party “are proceeding for an offence” or who “are wanted” to serve a sentence or comply with the terms of a detention order: s. 8 of the 1965 Act speaks of “persons wanted for prosecution or punishment” with s. 9 in its phraseology closely resembling that as specified in Article 1. Whilst I am satisfied that the obligation imposed on this State to extradite persons who have not been convicted of the underlying offence in the requesting country is determined by the interpretation of s. 9 (read in conjunction with s. 29 of the Act), and not by s. 8 of the 1965 Act, if different in any meaningful way or purpose, nonetheless a reference to these provisions, in particular s. 8, is necessary so as to deal, inter alia, with the following submission made on behalf of the Attorney General.
32. Section 8 of the 1965 Act records at an overview level the circumstances in which this State will facilitate the extradition of persons, residing or found within its territory, to a third party Convention country. The reciprocal facilities which the section speaks of will follow once the relevant Minister makes an order applying that part of the Act to such a country. Norway is designated for such purpose and nothing turns on this. The reason why I specifically mention the section is because of the use of the word “wanted” and its apparent indiscriminate application to both pre-trial and post-conviction persons alike. The Attorney General relies on this term to suggest that the critical phrase in s. 9 as relevant to this case, which is a person “who is being proceeded against”, should have a meaning comparable with or analogous to that which the word “wanted”, has or should be given, in s. 8. I do not accept such a submission.
33. Article 1 of the Convention is quite clear in differentiating between the two categories of persons to which its provisions apply (paras. 27 and 28 supra). The word “wanted” is referable solely to the second group and not to both. Section 8 must be understood in the same way. As its provisions are more in the nature of recitals, rather than in the nature of substantive obligations, the shorthand manner of describing both groups to which the Act applies, is perfectly understandable. It is however s. 9 which is the pivotal section and which in its wording is next to being identical to Article 1 of the Convention. It is the correct interpretation of that statutory provision which determines the first issue on this appeal.
34. The central question therefore is whether the appellant is a person “who is being proceeded against”, for the subject offence in the state of the requesting country. This involves the application of the section, as informed by the relevant case law (if any), to the evidential facts as established or accepted. Those facts, presented solely in affidavit form, and any necessary inferences therefrom are derived purely from the evidence of Mr. Tormod Haugnes, the most salient aspects of which I have endeavoured to set out previously in this judgment (paras. 15, 17 to 22 supra).
35. The High Court, in its judgment, did not as such separately make any findings of fact: however, the learned judge was satisfied that the extradition request was not being sought solely or even primarily, for investigative purposes: rather, it was the authority’s intention to prosecute Mr. Pocevicius for the described offence even if a final decision from the competent authority had yet to be taken in that regard. The absence of such decision evidently caused the learned judge considerable difficulties, for he was able to decide the point solely, as he described, “on balance”.
36. The learned judge agreed that the appellant was still only a suspect, but “a suspect whose prosecution is intended”. He also accepted that while aspects of the investigation remained to be addressed, the present decision of the Public Prosecutors to recommend prosecution was not dependent on any further investigation producing sufficient evidence, to add to that already existing for trial purposes. Whilst a final decision to indict rested with the Director General, that fact, given the overall circumstances, did not affect his conclusion that the provisions of s. 9 of the 1965 Act applied to Mr. Pocevicius.
37. He supported the conclusion by pointing out, as seems to be the fact, that the public prosecutors and the Director General are part of the same prosecution service, even if acting at different levels. Because of this the learned judge felt that they would share a common approach to the assessment of evidence “rendering it likely that a recommendation would be followed in most cases”. Whilst acknowledging that the Director General could not simply rubberstamp the recommendation and that possibly he could refuse to issue an indictment, “the reality is that refusal to [so do] would be an unlikely eventuality if there are no other unforeseen developments in the case”. Essentially so based, he concluded as he did.
38. In both the written submissions and oral argument, much debate centred on case law from this Court, but such has derived mostly from the 2003 Act, rather than from the provision of the 1965 Act. Apparently no direct authority exists on the point at issue; Brien v. King [1997] I.L.R.M. 338 (“Brien v. King”) being the closest authority identified by either party.
39. It is claimed on behalf of the appellant that there is a striking significance in the fact that no provision akin to s. 21A of the 2003 Act is to be found in the 1965 Act. That section provides, inter alia, that:-
40. Before specifically addressing this issue, could I make some general observations which are equally applicable to extradition with third countries and to surrender between member states of the European Union, subject of course to the specific provision of s. 21A of the 2003 Act, which was inserted by way of an amendment contained in the Criminal Justice (Terrorist Offences) Act 2005 (“the 2005 Act”). These comments do not relate to persons who are the subject of a conviction or detention order.
41. Following on from what is stated above (paras. 25 and 26 supra) about the different systems which exist in contracting states and member states of the European Union, it is self-evident that the meaning of terms, so commonly understood in this jurisdiction, may have an unrelated or quite distinct meaning elsewhere. The evidence in this case clearly demonstrates this point. Consequently, one must be very careful not to approach terms solely or perhaps even predominantly, through the lens of domestic jurisprudence. Whilst foreign law is a question of fact to be determined by the court of the requested state, the same must be decided on the adduced evidence and should not be inappropriately influenced by internal or indigenous considerations. Accordingly, terms such as “investigation”, “suspect”, “accused”, “charge”, “indictment”, “prosecute” and “proceedings”, to name but some, may have, and may have to be given, a particular meaning for the purpose of extradition/surrender cases, which is quite distinct from that which might normally apply in a purely national context (The Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 IR 384 (“Olsson”), para. 28). Therefore, a high level of consciousness is required in this regard.
42. Even though the mechanism by which the 2003 Act operates is quite different from that which underpins Part II of the 1965 Act, nonetheless the overall objective of both regimes is designed to achieve the same end (para. 24 supra). It is that those suspected of certain crimes will not be immune from prosecution simply because of the extra territoriality of their location, sometimes deliberately chosen so as to make extradition/surrender as difficult as possible. In broad terms, the 2003 Act is intended to capture the same two categories of persons as are envisaged in s. 9 of the 1965 Act: these are individuals which the requesting state has already prosecuted or intends to prosecute on the one hand, and post-conviction individuals either to serve their sentence or be sentenced, on the other (s. 10 of the 2003 Act). Even allowing for the more detailed provisions of the European Union’s instrument and its implementing domestic measures, nonetheless it is instructive to note what circumstances have been considered by the courts as sufficient, regarding the first category of persons, as would justify the making of a surrender order.
43. Under Article (1)(i) of the Framework Decision it is stated that a European Arrest Warrant is a judicial decision issued by a member state with a view to the arrest and surrender of the requested person “for the purposes of conducting a criminal prosecution”. Section 10 of the 2003 Act, in its original form, speaks of an “intention” to bring proceedings: in 2005 it added persons “who [are] the subject of proceedings”. Section 11(3)(b) of the Act requires a statement in writing to accompany the warrant, that where the person has not been charged a decision “to [so charge] and try him or her for, the offence…”, has been made. Section 21A(1) of the Act, as about set out (para. 39 supra), prohibits the surrender of the requested person “if [the High Court] is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state” (emphases added). It is the meaning of this provision which has given rise to some recent decisions, most notably those of Olsson and The Minister for Justice, Equality and Law Reform v. Bailey [2012] 4 IR 1 (“Bailey”).
44. The evidence in Olsson, as given on behalf of the appellant, was that under Swedish law his status was one “on probable cause suspected”, of the crime in question, and that no decision had been taken either to charge him or that he should stand trial, in respect thereof. The prosecutor with responsibility for the case acknowledged that no formal charge had been laid and that likewise no formal decision to prosecute had been made. The reason according to her evidence was that under Swedish law it is legally impossible to arrive at a final decision until the person in issue is presented with the investigative evidence and given an opportunity of responding. She continued however by stating that Mr. Olsson was sought for the purposes “of conducting a criminal prosecution”, even if under Swedish law no final decision to prosecute can be taken until such process is finalised. Of interest to note is that in her evidence, the prosecutor suggested that the system so described is analogous to that, which operates in several other member countries such as Finland, Denmark, Germany, The Netherlands, Spain, Estonia and Austria.
45. The Court in Olsson (O’Donnell J. with whom the other members concurred), when evaluating the meaning of s. 21A of the 2003 Act, conducted an inclusive or a sufficiency analysis as well as an exclusive or insufficiency one. In so doing it instanced a number of circumstances, which if existing or if intended to exist in the requesting country, would not be regarded as being an adequate compliance with the section: and likewise it identified certain steps which would be so regarded. It concluded on the facts that there was sufficient evidence to establish, that the purpose of the arrest warrant was for the prosecution and trial of the subject person on the offences specified in that warrant. Accordingly, it dismissed his appeal from the High Court surrender order. In this context the Minister for Justice, Equality and Law Reform v. McArdle [2005] 4 IR 260 (“McArdle”) was cited, although it should be noted that this case was decided on the statutory provisions existing before the introduction of s. 21A, which was inserted by the 2005 Act.
46. The application for the surrender of Mr. Bailey made by the French authorities raised several issues not previously considered by this Court. None are of specific relevance to this case other than the Court’s treatment of Mr. Bailey’s objection based on s. 21A of the 2003 Act. In the event and by reference to the specific evidence, each member of the Court in separate judgments was satisfied that whilst there was a decision in existence to charge Mr. Bailey, there was not a decision to put him on trial for the alleged offence. Accordingly, the provisions of s. 21A were not satisfied and on that, and let it be said on a number of other grounds, the request for surrender was rejected.
47. There are however, two extracts from the judgment of Murray J. in Bailey, which are apposite to this case. At para. 141 it is stated:-
48. From the above and other similar authorities the following can be deduced, but be it noted that the same are not in any way intended to be exhaustive:-
• A person should be surrendered where the purpose of the request is “to prosecute”, that is, to put him on trial for the subject offence. • Where such prosecution proceedings are in being that will be a sufficient compliance with this requirement. • Where such proceedings are not in being the intention to prosecute must be founded on the existing evidence, as known at the time of the request. • Where such proceedings are not in being an intention to charge only is not sufficient: in addition, there must be a decision to try, i.e. to put the individual on trial. (2) • A person therefore should obviously not be surrendered purely on suspicion of having committed an offence. • Likewise, where a person is sought simply to help the police with their inquiries, or to aid them with their investigation or to be eliminated from such inquiries. • Therefore a person who is merely a “suspect” should not be the subject matter of such an order. (3) • It is a principle of surrender law that an order will not be made if the purpose thereof is related only to a continuation of the investigation: a person will not be extradited or surrendered for this reason. • This does not mean that the investigation must be irreversibly concluded: there is no obligation to this end: indeed, it is counter-intuitive to so suggest as if such was the case, any further evidence subsequently discovered, even of innocence, would have to be disregarded: further, the entire process of surrender could be irreparably compromised if the request had to await the complete finalisation of the investigation. • What is required however is that the decision to prosecute is not contingent or otherwise dependent on any further investigation producing evidence without which no such decision could justifiably be made. • The investigation must therefore have reached a level whereby there exists sufficient evidence in the opinion of the competent prosecuting authority upon which the extradited person can be charged and tried and further that a decision to do so has in fact been made. • The fact that an arrest warrant has been issued will not, of itself, be determinative on the point last made. Depending on the investigative and the prosecution process of each country, such a warrant may be consistent either with the purpose of putting the individual on trial or with a continuation of the investigative part of the process. The latter is not sufficient to establish an intention to prosecute. (4) • A decision to cease to prosecute, based on evidence discovered as part of any ongoing investigation is completely compatible with surrender: it could not be otherwise for if it was, it could mean that a person whose innocence was established subsequent to charge, would have to stand trial. Evidently that could not be the case. 49. In Brien v. King Barr J. held that extradition under the 1965 Act was permitted only where the real purpose of the request was to bring the subject person before the courts of the requesting state so as to try him on the charge in question. In other words, there had to be a real intention to prosecute: anything short of that is not sufficient. I agree with the generality of this statement. It is very much in keeping with the strong policy and constitutional imperative which underpins the surrender of persons by one sovereign country to another. It also is very much akin to the general thrust of the 2003 Act, in particular in its pre 2005 amended form, upon which the decision of this Court (Murray C.J.) in McArdle is based. Approached with care (paras. 40 - 48 supra) and obviously subject to specific statutory provisions such as s. 21A of the 2003 Act, many of the general provisions set out in McArdle, Olsson and Bailey reflect the construction and operation of the 1965 Act.
50. It can, I think, be specifically and definitively stated at a general level that a person will not be extradited unless, at the time of the extradition request, the requesting country has a fixed intention to “charge” the suspect person with the offence(s) specified in the warrant. By the word “charge” I mean that the subject individual is no longer simply a “suspect” in the crime under investigation, but rather that his status is then one of “an accused”, as these terms are understood in Irish law. Such a decision must be based on the evidence then existing. It cannot be dependent on the emergence of further evidence from for example, any police investigation or court inquiry of the subject person following extradition. Such is not the purpose of the 1965 Act: on the contrary, such would be a compelling ground for refusal. The fact that the investigative part of the prosecution process is not formally concluded is not conclusive. It is sufficient that the intention to prosecute is presently there and that in the absence of new evidence, such intention will be implemented. This situation is not in any way affected by the possibility that the proceedings may be terminated at some point in the future: this may result from many different reasons such as, but not limited to, the emergence of fresh evidence which renders a continuation of the prosecution inappropriate. The time at which the decision to prosecute is made is what is critical: that is at the requesting stage.
51. Before applying these principles to the facts of this case, could I deal with a particular submission made by the respondent which is that, as a precondition to the application of s. 9 of the 1965 Act, there must be proceedings in being,in the sense that the formal prosecution must have commenced in respect of the affected person. I entirely reject this proposition: such a construction would seriously curtail the effectiveness of the 1965 Act and would be inconsistent with the State’s international commitment, which being a signatory to the 1957 Convention entails. In my view, it was never intended that the prosecution proceedings should have reached such a stage before the relevant provision of the 1965 Act became operable. In particular, the relevant wording in s. 9 of the Act does not bear such a construction.
52. If the public prosecutor was the competent authority to issue an indictment in this case, the point now under discussion, namely whether the respondent is being sought for the purposes of “being proceeded with” under s. 9 of the Act, would be unarguable. The evidence shows that so far as the process has gone, a decision has been taken that based on the existing evidence there are sufficient grounds to bring the respondent before the court so that his guilt or innocence on these charges can be determined: in other words a trial on the merits based on the public prosecutors assessment of what it can presently produce, is what is envisaged. If an indictment should issue, the same prosecutors will have carriage of the court’s prosecution. Even though their assessment is provisional for the reasons above stated, nevertheless it is an important indication of where, or at what point in the process, the Norwegian authorities are at present with this particular case.
53. The request for Mr. Pocevicius’s extradition cannot, in the sense in which the relevant terms are used in extradition law, be said to be for the purposes of “investigation” or of “continuing the investigation”. The reason why an indictment has not issued is that under Norwegian law it is a requirement, at least to the standard of best prosecution practice, that before making a final decision in that regard, the subject person should be given an opportunity of making a statement or of putting forward his version of events, so that the police or the court as the case may be, can assess what it says in light of the evidence which has already been accumulated. If, as is his right, he fails or refuses to offer any information, then the evidence as it stands will be submitted to the Director General by the public prosecutors with a recommendation that an indictment should issue. If he makes a statement, then depending on its content and what any follow up inquiries may lead to, the case may be discontinued or it may still be submitted for final decision. But the crucial point is that if nothing emerges from such an interview process, the Director General, based on what is presently available, will be advised to issue an indictment. So the investigation is still open but only so as to offer the respondent an opportunity of disputing, rebutting or challenging the existing evidence “but not for any other specific purpose”: in particular, not for the purpose of obtaining additional evidence upon which the ultimate decision might rest.
54. Given the diversity of systems which the 1965 Act was intended to accommodate, I am perfectly satisfied that what has been described herein as remaining to be done, so as to complete the investigative process, is entirely consistent with the provisions of the Act and the policy and the objectives behind it: accordingly, in my view, this point does not constitute any bar to extradition.
55. The prosecution process must be looked upon as a continuum. In a case such as this, it involves at various stages the police, the public prosecutors and the Director General. It has passed through the hands of those who make the inquiries, conduct the investigation and accumulate the evidence: this part of the process is thus at an end, subject only to interviewing the respondent if extradited, and any further inquiries arising therefrom, or which they may be asked to undertake. Their final act was to transfer the case to the public prosecutor with a recommendation as to its future course. This therefore, subject as aforesaid, terminates the involvement of the police with this case.
56. The public prosecutors have advanced the process as much as they have authority to do so. They have assessed and evaluated the evidence. They have formed a view on it. In their opinion, it is of such a character as would sustain and support an indictment. They have made a recommendation to the Director General to this effect. They do not have power to go any further. Is the fact therefore that the ultimate decision to prosecute has not yet been taken fatal to this application? This is the end point of issue No. 1.
57. Despite the extensive documentation ultimately submitted, there is no reference whatsoever as to what view the Director General might take if the evidence remains as it is. Nor is there any indication of a pattern or course of conduct as to what his decision might be in similar circumstances, where such a recommendation has been made. What is known is that the Director General is independent in the functions which he performs and is not bound by any course of action suggested by the public prosecutors. I, therefore, cannot see any basis upon which one could conclude from the evidence that there exists a likelihood of the Director General adopting or endorsing by way of separate decision, the recommendation which the public prosecutors intend to make to him.
58. Having said that however, there is no question of the Director General being able to activate or reactivate any further part of the investigative process other than to interview the respondent in the manner and for the purposes, above described. Therefore, in the absence of further evidence emerging, the options open to him are either to endorse the recommendation or to decline to so do. If it should be the latter, then the prosecution proceedings, such as they are, will be at an end. If it should be the former, an indictment will be laid. In such circumstances the entire process, looked as a whole, can be regarded as being in compliance with s. 9 of the 1965 Act and one can thus conclude that the requesting state “are proceeding” against Mr. Pocevicius for the offence in question.
Issue No. 2: Proportionality:
Issue No. 3: The Section 15 Bar to Extradition:
61. On the factual side of this argument, the respondent asserts, as set out above, that he left Norway on 21st September, 2008, that he travelled by train from Dublin to Cork later that day and that on 24th September, 2008, he signed on at Clonakilty Social Welfare office. He disputes the claim that he was in Norway on 25th September, 2008.
62. The authorities responded to these averments by firstly pointing out two possibilities: that he never returned to Norway after the 21st September or that, as they assert, he was still in Norway on 25th September, 2008 (A.I. No. 1 of 19/4/2012). Dealing specifically with the question of where the offence is alleged to have occurred, Mr. Tormod Haugnes stated in A.I. No. 2 of the 7th June 2012:-
63. The respondent interprets this evidence as indicating that the crime with which he is charged is, according to the authorities, triable in Norway whether or not he was in that country, in Ireland, or indeed anywhere else, at the relevant time. He goes further and asserts that the requesting country intends to prosecute him irrespective of whether the offence was committed in Norway “or without”, meaning presumably, in this jurisdiction.
64. In view of this intended approach, and in particular in light of the indifference shown by the authorities as to where the crime is alleged to have been committed, it is submitted by the respondent that if he was in Ireland on the relevant date, then this would inevitably mean that he could be prosecuted pursuant to the provisions of s. 20 of the Misuse of Drugs Act 1977, which reads:-
65. It would be quite an incomplete representation of the Norwegian position to rest it on the two scenarios above set out (para. 62 supra). Whilst it would not be useful to repeat the background as previously mentioned, it would however be helpful to highlight a few of the more salient features of the evidence:-
• It is being asserted by the requesting state that even if he had returned to Ireland on 21st and signed-on on 24th September, 2008, nonetheless he was still capable of being in Norway on 25th September, 2008. • In support of this, reference is made to the traffic and gaps in the traffic, as recorded to his phone number on the Norwegian network. Calls ceased at 2.00 on 21st September and resumed at 00.47 on 25th September: and continued until 15.15 on 28th September, 2008. • A particular phone conversation on 27th September timed at 20.33 is also relied upon. That records a male recounting that he had undertaken a very long car journey of over a thousand kilometres, part of which was through England, and stating that it was “raining here in Norway”, at the time. 66. Even though reference has been made to two “alternatives”, one of which was that Mr. Pocevicius was not in Norway on the day in question, that however is not what is being alleged or relied upon. On the contrary it is being firmly asserted by the Norwegian authorities, despite being disputed by the respondent, that he was in fact on Norwegian territory on the date of the alleged offence, namely the 25th September, 2008. It is however also said that whether he was in Norway or somewhere else “when the courier crossed the border into Norway [that is on 24th September, 2008], and was to contact him via telephone at a later point in time, has no bearing on his liability as an accomplice in Norway” (A.I. No. 2: 7/6/2012).
67. As appears from the additional information (para. 62 supra), the respondent is charged “with complicity in the import” of prohibited substances into Norway: not into Ireland. It has never been suggested that he personally carried the drugs into that country: rather what is alleged is that he was a central player and a key participant in the importation agreement and that he was the intended recipient of the drugs or else that he had control over who the recipient might be. Under Norwegian law an accomplice is not required to be present when or where the crime is committed. Consequently, the requesting country asserts competence to try him and claims jurisdiction over him on the charge(s) as preferred against him.
68. From the evidence it is clear that Norway is not suggesting that whilst in Ireland, the respondent committed any act or engaged in any action referable to the subject offence. Further they have never stated that they intend to prosecute him even if the offence was committed in Ireland. Section 15 of the 1965 Act would not permit this. What they are saying however is that even if the evidence does not establish that he was in Norway on the relevant date, they are nonetheless entitled to maintain the prosecution against him on the charge(s) as outlined. I believe they are so entitled and that s. 15 of the Act is no bar to extradition by reason of same.
69. The net issue on this ground of objection is whether the offence for which the respondent’s surrender is sought is regarded under Irish law as having been committed in the State. If it is, he cannot be extradited under s. 15 of the 1965 Act.
70. What is immediately striking about the section (para. 60 supra) is its specific reference to the subject offence having been “committed” in this jurisdiction: it therefore covers such circumstance, but no other. This means that the section is no bar to extradition if an offence is “prosecutable” here or indeed even, if the offence is “prosecutable” in this jurisdiction. It only prohibits extradition if the specific offence, for which extradition is sought, has been committed here. “Committed” in this sense must mean committed “wholly” or “entirely” in Ireland. Therefore, even if elements of the offence were said to have been carried out in Ireland, this would not be sufficient to invoke the provisions of the section.
71. The situation disclosed in this case presents a good example of why it is justified to give s. 15 of the 1965 Act the meaning which I have ascribed to it. The offence in question is of importation: that and the related offence of “aiding and abetting” may not and frequently is not, committed in one country. The more sophisticated criminal activity becomes, the more international its execution is likely to be. If it was the case that extradition would have to be refused if any single element of the offence was committed in this jurisdiction, the system of surrender would be gravely impaired and the intended objective of the legislation, significantly compromised. These consequences would similarly follow even if the offence(s) in issue could be “prosecuted” in both here and possibly other countries. It may be as a matter of practicality virtually impossible for example, for the Irish authorities to prosecute Mr. Pocevicius for the offence with which he is charged. Whatever the precise reasons for such difficulties may be, this could well be the result. Section 15 of the Act in my view was not intended to, and does not, prohibit extradition in such circumstances.
72. In any event, it is quite clear that the Norwegian authorities are not asserting against the respondent that he has committed any act or action in this State on 25th September 2008 or, indeed, on any other date. This is acknowledged in his submissions where it is said “neither the appellant nor the Norwegian authorities contend that he committed any such overt act”, that is an overt act within the State. On this basis the offence, in terms of what act or action might constitute a breach of the criminal provision of the Norwegian Code, cannot be regarded under Irish law as having been committed in this jurisdiction.
73. If this understanding of the section be correct as I believe it to be, it means that even if Mr. Pocevicius had not returned to Norway but rather had stayed in Clonakilty at the relevant time, and had by way of electronic communication directed the courier as to whom and to where the drugs should be delivered, so that everything he did, he did in Ireland (and in the process could properly be prosecutable for an offence contrary to s. 20 of the Misuse of Drugs Act 1977, as amended), it still could not be said that he committed the offence for which his extradition is requested, in Ireland. The reason is self-evident in that part of the actus reus for which it is sought to make him liable, is the importation of drugs into Norway. Accordingly, even in such circumstances it could not be the case that the offence was committed in Ireland for the purpose of s. 15 of the 1965 Act: it may be correctly said that it was partly committed in this jurisdiction but that is not sufficient within the meaning of the section. Accordingly, s. 15 of the 1965 Act does not avail the respondent.
74. Accordingly, I would reject the grounds advanced in support of this issue, No. 3. | ||||||||||||||||||||||||||||||||||||||