Attorney General v Oles
| Jurisdiction | Ireland |
| Judge | Mr Michael Peart |
| Judgment Date | 27 May 2003 |
| Neutral Citation | 2003 WJSC-HC 735 |
| Court | High Court |
| Date | 27 May 2003 |
2003 WJSC-HC 735
THE HIGH COURT
Between:
And
Citations:
EXTRADITION ACT 1965 S29
EXTRADITION (EUROPEAN CONVENTIONS) ACT 2001 S20(10)
EXTRADITION ACT 1965 S26(1)
EXTRADITION ACT 1965 S25
EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 SCH 9 ART II
EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 SCH 9 ART IV
EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 SCH 9 ART V
EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 SCH 9 ART VI
EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 SCH 9 ART VIII
EXTRADITION ACT 1965 S26
EXTRADITION ACT 1965 S29
18 USC PAR 1343
18 USC PAR 2
18 USC PAR 1623
EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 SCH 9 ART VIII PAR 3
EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 SCH 9 ART VIII PAR 3(C)
EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 SCH 9 ART VIII PAR 3(E)
EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000 SCH 9 ART 2.1
EXTRADITION (EUROPEAN CONVENTIONS) ACT 2001 S17
EXTRADITION (EUROPEAN CONVENTIONS) ACT 2001 S37(1)
O'CONNORS JUSTICE OF THE PEACE 1911 920
R V HUGHES 1844 1 CAR & KIR 519
KING V R 1849 14 QB 31
AG V OLDRIDGE 2000 4 IR 593 2001 2 ILRM 125
18 USC PAR 3146
EXTRADITION ACT 1965 S25(B)
EXTRADITION ACT 1965 S29
EXTRADITION ACT 1965 S29(1)(A)
18 USC PAR 371
Synopsis:
CRIMINAL LAW
Extradition
Fraud charges - Perjury - Whether request for extradition in compliance with statutory framework - Whether warrant of arrest deficient - Extradition Act, 1965 - Extradition Act, 1965 (Application of Part II) Order 2000 SI 474/2000 (2002/3 Ext - Peart J - 27/5/2003)
Attorney General v Oles
An application had been made to extradite the respondent to the United States where he faced a number of charges relating to fraud and perjury. The respondent resisted the application on a number of procedural grounds. It was contended that there were a number of deficiencies in the extradition documentation. It was claimed that there had been a failure to state the maximum penalty for the offences in question. An issue was also raised as to whether the offence of perjury in the United States corresponded to that of perjury under common law. In addition the respondent contended that the warrant of arrest was deficient in that it referred to violations of pre-trial release and did not refer to the offences of fraud and perjury.
Held by Peart J in refusing to grant an order of extradition. The absence of a statement as to the maximum penalty applicable to the offences was not fatal to the application as the information required was available in the documents. The offence of perjury in this jurisdiction corresponded to that of perjury under common law. The warrant which formed the basis of request for extradition failed to indicate the charges which the respondent faced, namely perjury and fraud. The Minister of Justice was therefore not correct in certifying that the request for extradition had been duly made. A further request for extradition was also refused as the accompanying warrant was also defective in that it failed to correctly identify the reason for extradition.
Mr Michael Peart delivered the 27th day of May 2003
This is an application by the Attorney General for an order pursuant to Section 29 of the Extradition Act 1965("the Act"), as amended by section 20 (1) of the Extradition (European Conventions) Act, 2001("the 2001 Act"), that the Respondent be committed to a prison here to await the order of the Minister for Justice, Equality and Law Reform ("The Minister") for his extradition, in circumstances where the Applicant submits that two requests duly made for the Respondent's extradition have been received by the Minister, and that the Minister has so certified in respect of each request pursuant to section 26 (1) of the Act.
Before such an order can be made, certain requirements as set out in section 25 of the Act must be complied with, and it is the Respondent's submission to this court that these requirements have not been fully complied with, and that accordingly this court has no jurisdiction to make the order sought. In this regard Counsel for the applicant has submitted that as in all cases where a person's liberty is at stake, the Act must be strictly interpreted.
Two requests for extradition have been received by the Minister, each in respect of different charges.
Before dealing with the issues raised in this particular case, I will set out the relevant legislative framework.
The Treaty on extradition between Ireland and the United States of America was signed at Washington on the 13 th July 1983 ("the Treaty"), by which an arrangement was made with The United States of America for the surrender of persons wanted for prosecution or punishment for an offence under Article II thereof. This Treaty was ratified by both countries by instruments of ratification exchanged at Dublin on 13 th January 1987.
On 19 th December 2000, the Irish Government made an Order being the Extradition Act, 1965(Application of Part II) Order 2000 ( S.I. No. 474 of 2000), by which it applied Part II of the Act to, inter alios, the United States of America. The text of the Treaty is contained in the Ninth Schedule of S.I.474 of 2000.
Article II of the Treaty provides:
1. An offence shall be an extraditable offence only if it is punishable under the law of both Contracting parties by severe penalty. When the request for extradition relates to a person who is wanted for the enforcement of a term of imprisonment, extradition shall be granted only if the duration of the sentence still to be served amounts to at least four months.
2. For the purpose of this Article, it shall not matter:
(a) whether the laws of the Contracting parties place the offence within the same category of offence or denominate the offence by the same terminology; or
(b) whether the offence is one for which the United States federal law requires proof of interstate transportation, or the use of mails or of other facilities affecting interstate or foreign commerce, such matters being merely for the purpose of establishing jurisdiction in a United States federal court.
3. Subject to the conditions set forth in paragraph 1 of this Article, extradition shall also be granted for attempt and conspiracy to commit, aiding, abetting, counselling, procuring, inciting, or otherwise being an accessory to the commission of, an offence referred to in paragraph 1.
4. If extradition is granted for an extraditable offence, it may also be granted for any other offence for which extradition is requested that meets all the requirements for extradition other than the periods of imprisonment specified in paragraph 1 of this Article."
Articles IV and V of the Treaty set out a number of Grounds of Refusal, some discretionary and others mandatory, but none of which are relevant to this case. Article VI, however, states that where the offence is punishable by death under the laws of the requesting State, but not under the laws of the Requested State, extradition may be refused, unless the Requesting State provides sufficient assurances that the death penalty, if imposed, will not be carried out.
Article VIII sets out the Extradition procedure and the documents required in relation thereto. Those requirements are largely replicated in Part II of the Act of 1965 of which Section 25 provides as follows:
"25. - A request for extradition shall be supported by the following documents:
(a) the original or an authenticated copy of the convictioin 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."
Section 26 of the Act (as amended) provides:
a “26. -(1)(a) If the Minister receives a request made in accordance with this Part for the extradition of any person, he shall, subject to the provisions of this section, certify that the request has been made.
(b) On production to a Judge of the High Court of a certificate of the Minister under paragraph (a) stating that a request referred to in that paragraph has been made the judge shall issue a warrant for the arrest of the person concerned unless a warrant for his arrest has been issued under section 27.
(2) A warrant issued under this section may be executed by any member of the Garda Siochana in any part of the State and may be so executed notwithstanding that it is not in the possession of the member at the time; and the warrant shall be shown to, and a copy of same given to, the person arrested at the time of such arrest or, if the warrant is not then in the possession of the member, within 24 hours thereafter.
(3) If the Minister is of opinion that the information communicated to him in pursuance of section 25 is insufficient, he may request the requesting country to furnish such further...
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