AG v Garland

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 27 January 2012
• Neutral Citation: [2012] IEHC 90
• Court: High Court
• Date: 27 January 2012

AG v Garland

IN THE MATTER OF THE EXTRADITION ACTS 1965 to 2001

BETWEEN

THE ATTORNEY GENERAL

APPLICANT

-AND-

SEAN GARLAND

RESPONDENT

[2012] IEHC 90

Record No. 18 EX7/2009

THE HIGH COURT

EXTRADITION LAW

Surrender

Surrender to United State of America - Applicable principles - Offence alleged of conspiracy to commit counterfeit acts - Interpretation of âÇÿoffence' under s 15 of Extradition Act 1965 - Interpretation of offence of conspiracy - Whether offence regarded under law of State as having been committed in State - Ellis v O'Dea (No 2) [1991] 1 IR 251 applied - Reg v Doot [1973] AC 807; R v Smith (Wallace Duncan) (No 4)[2004] EWCA Crim 631, [2004] QB 1418; R v Smith (Wallace) TLR 13/11/1995 and Liangsiriprasert v United States [1991] 1 AC 225 approved - R (Purdy) v DPP [2010] 1 AC 345; Stanton v O'Toole [2000] IESC 36, (Unrep, SC, 9/11/2000); Harris v Wren [1984] ILRM 120; Board of Trade v Owen [1957] AC 602; R (Purdy) v DPP [2010] 1 AC 345; Reg v Harden [1963] 1 QB 8; State (Furlong) v Kelly [1971] IR 132 and Hanlon v Fleming [1981] IR 489; Wilson v Sheehan [1979] IR 423; DPP v Stonehouse [1978] AC 55 and Reg v Ellis [1899] 1 QB 230 considered - Reg v Manning [1999] QB 980 and Attorney General v X [1992] 1 IR 1 distinguished - Extradition Act 1965 (Part II) (No 22) Order 1987 (SI 33/1987) - Extradition Act 1965 (Application of Part II) Order 2000 (SI 474/2000), Part 9 - Extradition Act 1965 (Application of Part II) (Amendment) Order 2010 (SI 45/2010) - Explosive Substances Act 1883 (46 Vict, c 3), s 3 - Forgery Act 1913 (3 & 4 Geo 5 Ch 27), ss 6, 8 and 18 - Central Bank Act 1942 (No 22), s 55 - Extradition Act 1965 (No 17), ss 8, 9, 10, 11, 15, 18, 22, 23, 25, 26, 29, 37, 38, 50, Parts II and III - Misuse of Drugs Act 1977 (No 12), s 20 - Criminal Justice Act 1994 (No 15) - European Convention on Human Rights Act 2003 (No 20) - Criminal Justice Act 2006 (No 26), s 71 - Agreement on Extradition between the United States of America and the European Union 2003 - Statute of the Council of Europe 1949, arts 1, 3, 5, 6, 8 and 13 - Treaty on Extradition between the United States of America and Ireland1983, art II, IV(b) and VIII - European Convention on Human Rights 1950 - Constitution of Ireland 1937, Arts 40.1 and 40.3 - Surrender refused (2009/18EXT - Edwards J - 27/1/2012) [2012] IEHC 90

Attorney General v Garland

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S8

EXTRADITION ACT 1965 S8(1)

EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 SCHED 9

EXTRADITION ACT 1965 (APPLICATION OF PART II) (AMDT) ORDER 2010 SI 45/2010

EXTRADITION ACT 1965 S9

EXTRADITION ACT 1965 S23

EXTRADITION ACT 1965 S25

EXTRADITION ACT 1965 S26(1)(A)

EXTRADITION ACT 1965 S26(1)(B)

EXTRADITION (AMDT) ACT 1994 S7

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S20

EXTRADITION ACT 1965 S26(2)

EXTRADITION ACT 1965 S26(5)

EXTRADITION ACT 1965 S29(1)

EXTRADITION ACT 1965 S29

EXTRADITION ACT 1965 S37(1)

EXTRADITION ACT 1965 S15

EXTRADITION ACT 1965 S11

FORGERY ACT 1913 S18

FORGERY ACT 1913 S6

FORGERY ACT 1913 S8

CENTRAL BANK ACT 1942 S52

CENTRAL BANK ACT 1942 S55

CRIMINAL JUSTICE ACT 1994 S31

ELLIS v O'DEA & GOVERNOR OF PORTLAOISE PRISON (NO 2) 1991 1 IR 251 1991 ILRM 346 1990/9/2619

DPP v DOOT & ORS 1973 AC 807 1973 2 WLR 532 1973 1 AER 940

R v BEST & ORS 91 ER 160 1705 1 SALK 174

R v BRISAC & SCOTT 102 ER 792 1803 4 EAST 164

R v BOWES UNREP 30.5.1787 (TRANSCRIPT NOT AVAILABLE)

R v STONE 101 ER 684 1796 6 TERM REP 527

R v HARDY & ORS 1794 24 ST TR 199

R v HORNE TOOKE 1794 25 ST TR 1

EAST A TREATISE OF THE PLEAS OF THE CROWN 1803 VOL 1 60

R v MEANY 1867 10 COX CC 506 1 IRCL 500

HYDE v UNITED STATES 1912 225 US 347

R v SMITH (NO 4) 2004 QB 1418 2004 3 WLR 229 2004 2 CR APP R 17

R (PURDY) v DPP 2010 1 AC 345 2009 3 WLR 403 2009 4 AER 1147

SUICIDE ACT 1961 (UK)

AG v X & ORS 1992 1 IR 1

ELLIS v O'DEA & GOVERNOR OF PORTLAOISE PRISON (NO 2) 1991 1 IR 251 1991 ILRM 346 1990/9/2619

CRIMINAL JUSTICE ACT 2006 S71

STANTON v O'TOOLE UNREP SUPREME 9.11.2000 2000/17/6386

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1965 S50(2)(C)

HARRIS v WREN 1984 ILRM 120 1983/9/2682

FURLONG, STATE v KELLY & AG 1971 IR 132

WILSON v SHEEHAN 1979 IR 423

HANLON v FLEMING 1981 IR 489 1982 ILRM 69 1981/10/1698

BOARD OF TRADE v OWEN & ANOR 1957 AC 602 1957 2 WLR 351 1957 1 AER 411

EXPLOSIVE SUBSTANCES ACT 1883 S3

CRIMINAL LAW (JURISDICTION) ACT 1976 S4

R v SMITH (NO 1) 1996 2 BCLC 109 1996 2 CR APP R 1

COMPANIES ACT 1985 S458 (UK)

THEFT ACT 1968 S15(1) (UK)

R v MANNING 1999 QB 980 1999 2 WLR 430 1998 4 AER 876

R v HARDEN 1963 1 QB 8 1962 2 WLR 553 1962 1 AER 286

LIANGSIRIPRASERT v UNITED STATES & ANOR 1991 1 AC 225 1990 3 WLR 606 1990 2 AER 866

CHARLETON & ORS CRIMINAL LAW 1999 PARA 4.56

MISUSE OF DRUGS ACT 1977 S20

PROCTOR MANN ON THE LEGAL ASPECT OF MONEY 6ED 2005 CHAP 20

PROCTOR MANN ON THE LEGAL ASPECT OF MONEY 6ED 2005 PARA 20.06

1. Introduction

2 2 1.1 In these proceedings the United States of America (hereinafter the United States of America or the United States or the U.S.A. or the U.S.) seeks the extradition of the respondent with a view to placing him on trial for the offence of conspiracy to commit counterfeit acts outside the territory of the United States in violation of various U.S. laws.

2. Extradition between Ireland and the USA: Principal Legal Provisions

2 2 2.1 By virtue of the following measures the U.S.A. is a country to which Part II of the Extradition Act 1965, as amended (hereinafter the Act of 1965), applies.

3 3 2.2 On the 13 ^th of July 1983, Ireland signed the Treaty on Extradition between the State and the U.S.A. at Washington D.C. [hereinafter the "Washington Treaty"]. The Washington Treaty was later amended by the Agreement on Extradition between the United States of America and the European Union, entered into on the 25 ^th of June 2003 [hereinafter "the EU - US Treaty"].

4 4 2.3 S. 8 of the Act of 1965, as it applied at the material time, stated:

2 2 "8.-(1) Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred to as an extradition agreement) is made with another country for the surrender by each country to the other of persons wanted for prosecution or punishment or where the Government are satisfied that reciprocal facilities to that effect will be afforded by another country, the Government may by order apply this Part in relation to that country.

5 5 2.4. The Government by means of the Extradition Act, 1965 (Application of Part II) Order, 2000 [S.I. 474 of 2000] made an order pursuant to s. 8(1) of the Act of 1965 applying Part II of that Act to the United States of America. Notice of the making of the said order was published in An Iris Oifigiúil on the 6th of February, 2001. Part 9 of S.I. 474 of 2000 was subsequently amended, in order to give effect to provisions of the EU - US Treaty, by the Extradition Act 1965 (Application of Part II) (Amendment) Order 2010 [S.I. 45 of 2010]. Notice of the making of this said order was published in An Iris Oifigiúil on the 19th of February, 2010.

6 6 2.5 Once Part II of the Act of 1965 applies there is a duty on the State to extradite by virtue of s. 9 of that Act, which is in the following terms:

2 2 "9.-Where a country in relation to which this Part applies duly requests the surrender of a person who is being proceeded against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person shall, subject to and in accordance with the provisions of this Part, be surrendered to that country."

7 7 2.6 A request for a person's extradition is made to the Minister (for Justice and Equality - as he is currently entitled) in the first instance and any such request must comply with the formalities prescribed in s. 23 of the Act of 1965 and be accompanied by the supporting documentation specified in s. 25 of that Act.

8 8 2.7 S. 23 of the Act of 1965 provides:

2 2 "23.-A request for the extradition of any person shall be made in writing and shall be communicated by-

(a) a diplomatic agent of the requesting country, accredited to the State, or

(b) any other means provided in the relevant extradition provisions."

9 9 2.8 S. 25 of the Act of 1965 provides:

2 2 "25.- A request for extradition shall be supported by the following documents-

(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or, as the case may be, of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting country;

(b) a statement of each offence for which extradition is requested specifying, as accurately as possible, the time and place of commission, its legal description and a reference to the relevant provisions of the law of the requesting country;

(c) a copy of the relevant enactments of the requesting country or, where this is not possible, a statement of the relevant law;

(d) as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality, and

(e) any other document required under the relevant extradition provisions."

10 10 2.9 Under s. 26(1)(a) of the Act of 1965 the Minister is required, upon receipt of a properly communicated request supported by the required documents, to certify having received the request. S. 26(1)(b) of the same Act (as amended by s. 7 of the Extradition (Amendment) Act 1994), and as further amended by s. 20 of the Extradition (European Union Conventions) Act, 2001) then provides:

2 2 "26.- (1)(b) On production to a judge of the High Court of a...