Attorney General v Lee

• Jurisdiction: Ireland
• Judge: the Chief Justice
• Judgment Date: 24 October 2017
• Neutral Citation: [2017] IESC 68
• Court: Supreme Court
• Docket Number: [Appeal No: 2016/57]
• Date: 24 October 2017

[2017] IESC 68

THE SUPREME COURT

Clarke C.J.

Clarke C.J.

O'Donnell Donal J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

[Appeal No: 2016/57]

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

Between/

Attorney General

Applicant/Respondent

and

Patrick Lee

Respondent/Appellant

Extradition – Criminal proceedings – Jurisdiction – Appellant seeking to appeal against his extradition – Whether the Court of Appeal erred in deciding that 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

Facts: The United States of America sought the extradition of the respondent/appellant, Mr Lee, to stand trial in respect of 51 offences alleged to have been committed between the 20th February, 2006, and the 4th May, 2007, involving allegations of wire fraud, unlawful monetary transactions and aggravated identity theft. The High Court (Edwards J), on the 23rd March, 2015, made an order under s. 29 of the Extradition Act 1965 committing Mr Lee to prison to await the order of the Minister for Justice for his extradition. Mr Lee appealed that decision to the Court of Appeal. The appeal was dismissed with both Peart and Hogan JJ delivering judgments with which Costello J agreed. Thereafter, Mr Lee sought leave to appeal to the Supreme Court and was granted leave to appeal on the following terms: (a) whether the Court of Appeal erred in deciding that 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) whether the Court of Appeal erred 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; (c) whether the judgment of the Court in Attorney General v Pocevicius [2015] IESC 59 was correctly decided.

Held by Clarke CJ that the terms of s. 74 of the Criminal Justice Act 2006 do no more than provide for incidental, and therefore principally procedural, purposes that offences under ss. 71 or 72 of that Act are taken for those purposes to have been committed in any place in which criminal proceedings are commenced thus ensuring that any relevant District or Circuit Court has jurisdiction. On that basis Clarke CJ was not satisfied that s. 74 has the effect of deeming offences under ss. 71 or 72 to have been committed in Ireland so that such offences must be “regarded” as having been committed in Ireland as a matter of Irish law. It did not seem to Clarke CJ that the question of whether Pocevicius was correctly decided arose for the argument based on the interpretation of the relevant legislation, in particular s. 15 of the 1965 Act and s. 74 of the 2006 Act which was urged on behalf of Mr Lee.

Clarke CJ held that the Court of Appeal was correct to uphold the decision of the High Court and proposed that the Court should, therefore, dismiss the appeal and affirm the order of the High Court. Clarke J proposed that counsel be heard further on the precise form of order which should be made to facilitate Mr Lee’s extradition.

Appeal dismissed.

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...