Attorney General v Lee

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan,MR JUSTICE MICHAEL PEART
• Judgment Date: 20 April 2016
• Neutral Citation: [2016] IECA 115
• Date: 20 April 2016
• Court: Court of Appeal (Ireland)
• Docket Number: RECORD NUMBER: 2015/164 CA 2015 No. 164CA

[2016] IECA 115

THE COURT OF APPEAL

Peart J.

Hogan J.

RECORD NUMBER: 2015/164 CA

2015 No. 164CA

Peart J.

Hogan J.

Costello J.

IN THE MATTER OF PART II OF THE EXTRADITION ACT, 1965, AS AMENDED

BETWEEN:

ATTORNEY GENERAL

APPLICANT/RESPONDENT

AND

PATRICK LEE

RESPONDENT/APPELLANT

Crime & sentencing ? Extradition ? United States of America ? Whether offences to be regarded as committed within jurisdiction ? S 15, Extradition Act 1965

Facts: The appellant was the subject of an extradition request by the United States of America in relation to alleged identity theft and unlawful money transactions. The request had been granted at first instance, but the appellant now sought to challenge that decision on the basis of s 15 of the Extradition Act 1965.

Held by Mr Justice Peart, that the appeal would be dismissed. The existence of an offence of conspiracy to commit offences outside the jurisdiction of the State did not serve to grant jurisdiction to try offences committed solely in another State. The arguments pursued by the appellant were straining the plain meaning of s 15, and could not succeed. Attorney General v. Pocevicius [2015] IESC 59 applied.

Hogan J also gave a judgment in the matter.

JUDGMENT OF MR JUSTICE MICHAEL PEART ON THE 20TH DAY OF APRIL 2016:

1 By Order made and perfected on the 23rd March 2015, Edwards J. being satisfied of the matters referred to in s. 29 of the Extradition Act, 1965 ordered inter alia that the appellant be committed to prison to await the order of the Minister for his extradition pursuant to a request made by the United States of America on the 15th August 2011 for the purpose of a trial there in respect of 51 alleged counts, being 29 counts of Wire Fraud, 6 counts of Unlawful Money Transactions, and 16 counts of Aggravated Identity Theft.

2 No element of any of the offences is alleged to have been committed outside the territory of the United States of America, and specifically for the purposes of this appeal in the State ( i.e. Ireland), even though it has been established by the appellant that on the dates on which it is alleged that a small number of the offences were committed he was outside the United States, and in all likelihood in the State.

3 Nevertheless the single ground of appeal being pursued by the appellant is that his extradition in respect of all the alleged offences is prohibited under s. 15 of the Act of 1965, as originally enacted which provides:-

?15. ? 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?. [Emphasis added]

4 I should mention in passing that a new s. 15 has been substituted by s. 27 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012, but it is the original section which is in play in the present proceedings, since the amended section only came into effect some eleven months after the date of the Request for extradition of the appellant.

5 Section 15 gives effect to Article 7 of the European Convention on Extradition of 13th December 1957 which provides:-

?Article 7 ? Place of Commission:

1. 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. When the offence for which extradition is requested has been committed outside the territory of the requesting Party, extradition may only be refused if the law of the requested Party does not allow prosecution for the same category of offence when committed outside the latter Party's territory or does not allow extradition for the offence concerned.?

6 Given the terms of s. 15 of the Act of 1965 the net question for determination is whether the offences for which the appellant's extradition is requested are offences which under the law of the State are regarded as having been committed in the State, even though the authorities in the U.S. do not allege that any element of any of the offences was committed outside the U.S..

7 Essentially the counts for which his extradition is sought arise from what the prosecutor alleges was a mortgage fraud scheme perpetrated in the United States by the appellant between July 2005 and May 2007. This allegation is summarised very briefly at para. 4 of the affidavit sworn by Sandra Bower on the 26th April 2011 as follows:-

?In summary, Lee and others bought multi-family properties in Massachusetts and converted them into condominiums; ?straw buyers? (i.e. individuals who take title to real estate and in whose name mortgage loans are secured for those purchases, but who have no intention to live in the properties or to repay the mortgage loans) were recruited to purchase the condominium units; and lenders issued mortgage loans based on false information about the straw buyers and the properties, including forged real estate appraisals prepared by Mr Lee. After the transactions closed, Lee and his associates shared in the proceeds of the loans, the mortgages went unpaid and the properties were foreclosed. Lee received about $1 million in gross receipts for his participation in the scheme?.

8 The same affidavit sets out an extensive account of how this mortgage fraud is alleged to have been planned and executed, and the trial judge's judgment contains a large extract from same. It is unnecessary for me to set out that same detail in the present judgment. Neither is it necessary to set out the full detail of the offences comprised within the three groups of offences, as the trial judge has helpfully done.

9 The ground of appeal now relied upon has its genesis in Point of Objection 9 raised in the High Court in the following terms:

?9. Without prejudice to the foregoing some of the allegations in the extradition request the subject matter of the within proceedings refer to alleged offences committed whilst the Respondent was present and residing in Ireland and as such it is alleged the acts were committed inside the territory [of the] requested State, Ireland.?

10 As noted by the trial judge in his judgment at para. 5.2, the appellant was with the leave of the court permitted to argue this ground on an expanded basis namely:

?That all of the offences the subject matter of the request are not extraditable offences in that the territoriality bar created by s. 15 of the Act of 1965 as originally enacted applies to all of the offences in this case, and not just those covered by Ground 9 as originally pleaded, i.e. those committed when the respondent was outside of the requesting state?.

11 The essence of the objection raised under s. 15 of the Act of 1965, and which is the subject of the appeal now, is if the offence(s) for which extradition is sought is/are offences which because they were committed in the State or are regarded as having been committed in the State, are capable of being prosecuted by the DPP in the State, then extradition was prohibited. The trial judge noted in his judgment that under the expanded ground permitted the Court had to consider whether the appellant was alleged to have committed the alleged offences under Irish law as opposed to necessarily committing them in the State. He went on to state that it was being contended that offences in respect of which this State claims an extra-territorial jurisdiction qualify as offences which are in the words of s. 15 ?regarded under the law of the State as having been committed in the State?, and that in this regard that question must be considered by reference to the date upon which the Request for extradition is made, and not by reference to the date upon which the offences are alleged to have been committed. In other words, the Court must consider whether the offences said to have been committed in the period 2006-2007 give rise to offences in respect of which the State claims an extra-territorial jurisdiction as of 11th August 2011.

12 In this regard the appellant relies upon offences created by sections 71, 71A, and 72 of the Criminal Justice Act 2006, as amended by the Criminal Justice (Amendment) Act, 2009 (effective from 22nd July 2009), read in conjunction with s. 74 of the same Act, and/or also an offence under s. 7 of the Criminal Justice (Money Laundering and Terrorist Offences) Act, 2010 (commenced 15th July 2010). He submits, as he did in the High Court, that offences committed under these provisions are prosecutable in the State even though they were committed in another state, since Ireland has asserted an extra-territorial jurisdiction in respect of such offences by the date of this Request for extradition on 11th August 2011.

13 It is important at this point to state that the issue in controversy must not be confused or conflated with the issue of correspondence which is dealt with under s. 10 of the Act of 1965. Before extradition may be ordered correspondence, or double criminality as it is sometimes referred to, must be established. This means that it must be established that the acts or omissions alleged to give rise to the offences for which extradition is sought would, if committed in this State on the date of the Request, give rise to an offence in the State. A person may not be extradited to face trial for an act or omission allegedly committed by him in the requesting state which is not a criminal act or omission if done in this State. The extra-territoriality bar under s. 15 fulfils a very different purpose. Where an act committed outside the State is ?regarded under the law of the State as having been committed in the State?, extradition is prohibited not because the act is not criminal under Irish law as in the case of a lack of correspondence or double criminality, but rather because (a) it is a criminal act under...