Attorney General -v- Lee, [2017] IESC 68 (2017)

Docket Number:57/2016
Party Name:Attorney General, Lee
 
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THE SUPREME COURT[Appeal No: 2016/57]

Clarke C.J.

O’Donnell J.

MacMenamin J.

Dunne J.

O'Malley J.

In the Matter of an application pursuant to part II of the Extradition Act, 1965, as amended

Between/

Attorney GeneralApplicant/Respondent

and

Patrick LeeRespondent/Appellant

Judgment of the Chief Justice delivered the 24th October, 2017.

  1. Introduction

    1.1 In very general terms the criminal law of most states is concerned with offences said to have been committed within the territory of the state concerned. While there are exceptions to that general proposition it is not normally the case that a person commits an offence contrary to the criminal law of one state where the acts or omissions giving rise to the offence take place elsewhere. It is also a typical feature of many extradition treaties or extradition legislation that surrender to another state is excluded in respect of offences alleged to have been committed in the state to whom the request for surrender is made. The obvious inference to be drawn from such a provision is that it is intended, at least as a default position and in most normal circumstances, that offences should be prosecuted where they are committed.

    1.2 This appeal raises questions concerning the interaction between those two general propositions and, in particular, the proper interpretation in that context of s.15 of the Extradition Act, 1965 (“the 1965 Act”). The United States of America sought the extradition of the respondent/appellant (“Mr. Lee”) to stand trial in respect of 51 alleged offences. The offences concerned are alleged to have been committed between the 20th February, 2006, and the 4th May, 2007 and involve allegations of Wire Fraud, Unlawful Monetary Transactions and Aggravated Identity Theft. The sets of offences are said to be connected for the allegation of unlawfulness in respect of the relevant monetary transactions concerned the alleged wire fraud and the allegation of identity theft is also said to be related to the same wire frauds. It is also important to note that the offences are all alleged to have been committed in the United States of America.

    1.3 The High Court (Edwards J.), on the 23rd March, 2015, made an order under s.29 of the 1965 Act committing Mr. Lee to prison to await the order of the Minister for Justice for his extradition. (See Attorney General v. Patrick Lee (2015) IEHC 340). Mr. Lee appealed that decision to the Court of Appeal. The appeal was dismissed with both Peart and Hogan JJ. delivering judgments with which the third member of the Court, Costello J., agreed. (See Attorney General v. Patrick Lee (2016) IECA 115). Thereafter, Mr. Lee sought leave to appeal to this Court and was granted leave to appeal on the following terms:-

    “…whether the Court of Appeal erred in deciding that:

    (a) there was a distinction to be made between an offence which was regarded as having been committed within the State, and an offence committed in another state, over which extraterritorial jurisdiction is claimed under Irish Law?

    (b) in determining that, in the latter case, such an offence could not be said to be an offence which “is regarded under the law of the State as having been committed in the State”, for the purposes of s.15 of the Extradition Act, 1965?

    This Court will also consider whether:

    (c) the judgment of this Court in Attorney General v. Pocevicius [2015] IESC 59 was correctly decided?”

    (See Attorney General v. Lee (2016) IESC DET 93)

    In order to understand the particular issues which, therefore, arises on this appeal it is necessary to consider s.15 of the 1965 Act.

  2. Section 15 and the Issues

    2.1 In its original form s.15 was in the following terms:-

    “Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.”

    2.2 As a result of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act, 2012 a new s. 15 was inserted in place of the original. The text of the new s.15 is as follows:-

    “15 – (1) Extradition shall not be granted for an offence which is also an offence under the law of the State if –

    (a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings for the offence against the person claimed, or

    (b) proceedings for the offence are pending in the State against the person claimed.

    (2) Extradition may be refused by the Minister for an offence which is also an offence under the law of the State if the Director of Public Prosecutions or the Attorney General has decided either not to institute or to terminate proceedings against the person claimed in respect of the offence.”

    2.3 Counsel for Mr. Lee accepted that the argument which he wished to make might not be sustainable were this case to be governed by s. 15 in its current form. As can be seen, the amended form of the section is both conditional and is also discretionary so far as the Minister is concerned. However, s. 15 in its original form is clearly mandatory in that it provides that extradition “shall not” be granted where the condition specified is met.

    2.4 However, it is common case that this application for extradition is governed by s. 15 in its original form and the issue therefore turns on whether the extradition requested in respect of Mr. Lee is prohibited by the section in that original form.

    2.5 It should also be noted that what has often been described as a territoriality exception or a territoriality bar, such as that provided for in s.15, is common in international extradition treaties. In that context Art.7 of the European Convention on Extradition, 1957 provides that “the requested party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory”.

    2.6 The offences alleged against Mr. Lee in this case are, of course, said to have been committed in the United States of America so that, prima facie, it might be said that s.15 would not appear to have any application. However, the section speaks of offences “regarded” as having been committed in the State.

    2.7 In that context Mr. Lee suggests that, on the same facts as those alleged against him in the United States, he could be prosecuted in this State for an offence contrary to s.71 of the Criminal Justice Act, 2006 (“the 2006 Act”) which provides that, subject to certain exceptions, a person who conspires, “whether in the State or elsewhere” to do an act in a place outside the State which constitutes a serious offence under the law of that place and which would, if done in the State, constitute a serious offence is to be guilty of an offence irrespective of whether such act actually takes place or not.

    2.8 Thus, it is argued that the various wire fraud and connected offences alleged against Mr. Lee could be prosecuted in Ireland under s.71 of the 2006 Act. I am prepared, for present purposes, to operate on the assumption that that is so. The key issue is as to what follows.

    2.9 The essential argument put forward on behalf of Mr. Lee is that the fact that he could be prosecuted in Ireland for an offence arising out of the facts alleged against him in the United States means that the offence in question must be taken as being “regarded under the law of the State as having been committed in the State” for the purposes of s.15 so as to exclude his extradition.

    2.10 In substance that is the net question which arises under grounds “a” and “b” referred to in the determination of this Court as a result of which leave to appeal was granted.

    2.11 In reality, the question comes down to a very simple one. There is no doubt but that certain offences in Irish law can be said to be extraterritorial. Indeed, at least in general terms, it can be said that an offence under s.71 of the 2006 Act is one such, for it is clear that an offence, for the purposes of Irish criminal law, can be committed contrary to that section where a person conspires outside the State to do an act which constitutes a serious offence under the law of the place where the act is intended to be committed. Therefore, in principle, s.71 contemplates that one may commit an offence contrary to Irish criminal law by conspiring outside the State to carry out acts outside the State.

    2.12 There are, of course, other statutes and provisions of common law which create offences under Irish criminal law even though the acts or omissions constituting the offence occur outside of the State. The real question is as to whether such extraterritorial offences can be said to give rise to the exclusion from extradition provided for in section 15. There are a number of legs to the argument. These issues mainly stem from the response to the arguments addressed by Mr. Lee.

    2.13 First, the applicant/respondent (“the Attorney”) argues that, even if it is the case that the acts alleged to have been committed by Mr. Lee would constitute an offence in Irish law under s.71 despite their being carried out in the United States, nonetheless “the offence” for which Mr. Lee’s extradition is sought is in each case a particular statutory offence under United States law. The fact that the same...

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