Attorney General v Parke

• Jurisdiction: Ireland
• Judge: Denham J.,Murray C.J.
• Judgment Date: 06 December 2004
• Neutral Citation: [2004] IESC 100
• Court: Supreme Court
• Date: 06 December 2004

AG v. PARKE

BETWEEN

ATTORNEY GENERAL

APPLICANT/APPELLANT

AND

MARTIN PARKE

RESPONDENT

[2004] IESC 100

Murray C.J.

Denham J.

McCracken J.

217/04

THE SUPREME COURT

Abstract:

Criminal law - Extradition - Correspondence of offences - Relevant Irish law - Extradition Act, 1965 section 47

The High Court refused the appellant's application for delivering of the respondent to the UK in respect of charges set out in three of seven warrants in respect of which extradition was sought. In each of the three the respondent was charged with supply simpliciter of a controlled drug under the 1971 Misuse of Drugs Act (UK). As the corresponding offences in Irish law were subject to ministerial regulations and these regulations were not produced or proved in the High Court the court refused to make orders in respect of the three warrants.

Held by the Supreme Court (Murray CJ; Denham and McCracken JJ) in allowing the applicant's appeal that mere reference to the regulations governing the corresponding offence was insufficient to properly place the corresponding Irish law - as opposed to the offence - before the court but that the trial judge should have enquired as to the existence of the regulations as the matter was in the form of an enquiry as opposed to a criminal prosecution. Accordingly the matter was remitted to the High Court for the proper presentation of all relevant Irish law to the corresponding offence.

Reporter: F.McE.

Citations:

EXTRADITION ACTS 1965–2001 S47

MISUSE OF DRUGS ACT 1971 S4(1)

MISUSE OF DRUGS ACT 1971 S4(3)(a)

MISUSE OF DRUGS ACT 1971 S4(3)

EXTRADITION ACT 1965 PART III

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S20

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S20(1)(a)

EXTRADITION ACT 1965 S47(1)

EXTRADITION ACT 1965 S47(2)

EXTRADITION ACTS 2001 S26

EXTRADITION ACT 1965 S42(3)

MISUSE OF DRUGS ACT 1977 S5

MISUSE OF DRUGS ACT 1977 S21(2)

AG V DYER 2004 1 IR 40 2004 1 ILRM 542

WYATT V MCLOUGHLIN 1974 IR 378

HOLMES, STATE V FURLONG 1967 IR 210

FURLONG, STATE V KELLY 1971 IR 132

EXTRADITION ACT 1965 S55

MISUSE OF DRUGS ACT 1971 S5(3)

MISUSE OF DRUGS ACT 1971 S5(1)

MISUSE OF DRUGS ACT 1971 S5(2)

MISUSE OF DRUGS ACT 1977 S2(1)

MISUSE OF DRUGS ACT 1977 S2(2)

MISUSE OF DRUGS ACT 1977 S5(1)(iii)

MISUSE OF DRUGS REGS 1988 SI 328/1988 REG 4(1)(b)

1 JUDGMENT delivered the 6th day of December2004, by Murray C.J.

2 In this case the High Court refused an application on behalf of the Attorney General for an order pursuant to s. 47 of the Extradition Acts, 1965–2001 for the delivery of the respondent to the United Kingdom in respect of charges set out in three warrants. The application before the High Court had been in respect of charges set out in total seven warrants. The order sought was granted in respect of four of those warrants and the Attorney General has appealed against the refusal of the learned High Court judge to make an order pursuant to s. 47 in respect of the remainingthree warrants. These are described as warrants A, B and E in the judgment of the High Court. The charges contained in those warrants were set out in the learned High Court judge's judgment in the followingterms:

"Warrant A charges as follows:"

"That he on the 23 ^rd day of June, 1998 supplied a controlled drug of class A namely 2.38 grams of powder containing diamorphine to Gary Baldrey in contravention of s. 4(1) of the Misuse of Drugs Act, 1971. Contrary to s. 4(3)(a) of the Misuse of Drugs Act,1971"

3 Warrant B charges the same offence of supply, but in respect of a different date and to a different person.

4 ...

5 Warrant E charges him with supply in the follow terms:

"On the 30 ^th day of March, 1999 at Parkview Court, Roe Green, London, NW9, England supplied a controlled drug ofclass A namely 0.261 grams of powder containing diamorphine to Thomas Cullinane in contravention of s. 4(1) of the Misuse of Drugs Act, 1971 contrary to s. 4(3) of the Misuse of Drugs Act. 1971."

6 ..."

7 Part III of the Extradition Act, 1965, as amended, provides for the return of persons to, interalia, the United Kingdom who are wanted on foot of warrants issued by a court in that jurisdiction to stand trial on criminal charges. Until the coming into force of the Extradition (European Union Conventions) Act, 2001it was the District Court who exercised the jurisdiction to make an order, pursuant to s. 47 of the 1965 Act. Section 20 of the Act of 2001 had the effect of transferring to the High Court the jurisdiction in first instance of considering and determining an application pursuant to the aforesaid s. 47 for the removal of a person to the United Kingdom for the purpose of standing trial there. Section 20(1)(a) amended the Act of 1965 by providing for the substitution of "HighCourt" for "District Court" in each place that it occurs.

8 Accordingly s. 47(1) and (2) now read as follows:

9 2 "47. -(1) Where a person named or described in a warrant is before the High Court in pursuance of this Part that Court shall, subject to the provisions of this Part, make an order for his delivery at some convenient point of departure from the State into the custody of a member of a police force of the place in which the warrant has been issued, for conveyance to that place, and remand him until sodelivered.

10 (2) An order shall not be made under subsection (1) if it appears to the Court that the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least sixmonths."

11 This was the essence of the judicial task conferred on the learned High Court judge when this application was before him. With regard to corresponding offences s. 26 of the Act of 2001 introduced an amendment to s. 42 of the 1965 Act by inserting a subsection (3) in the followingterms:

"For the purposes of this Part, an offence specified in a warrant corresponds with an offence under the law of the State if-"

(a) the act constituting the offence so specified would, if done in the State on the day the warrant is produced under section 43(1)(b), constitute an offence under the law of the State, or

(b) in the case of an offence so specified consisting of one or more acts including any act committed in the State, such act constituted an offence under the law of the State on the day on which it was committed or alleged to have been committed."

12 One of the tasks of the High Court in such an application is, as s. 47(2) makes clear, to determine whether the offence in respect of which a person's extradition is sought corresponds with an offence in the State. The case-law of this Court concerning the application of s. 47 by a judge of the District Court now applies to the exercise of that jurisdiction by a judge of the High Court.

13 In this particular case the learned High Court judge had no difficulty in determining that the four offences mentioned in the fourwarrants for which he granted an order corresponded to offences in Irish law within the terms of section 47(2). These were offences concerning the possession of controlled drugs, the possession of which was also an offence in this State.

14 The offences referred to in warrants A, B and E on the other hand relate to the supply simplicitor, as opposed to possession, or possession with intent to supply, of similar drugs.

15 In the High Court it was contended on behalf of the Attorney General that the corresponding offence within this State was to be found in s. 5 in combination with s. 21(2) of the Misuse of Drugs Act, 1977. Section 5 of the Misuse of Drugs Act, 1977 provides:

"(1) For the purpose of preventing the misuse of controlled drugs, the Minister may make regulations -"

(a) prohibiting absolutely, or permitting subject to such conditions or exceptions as may be specified in the regulations, or subject to any licence, permit or other form of authority as may be sospecified-

16 ...

17 (iii)the supply, the offering to supply or the distribution of controlled drugs, ..."

18 Section 21(2) of the Misuse of Drugs Act, 1977 provides:

"Any person who, whether by act or omission, contravenes or fails to comply with regulations under this Act shall be guilty of anoffence."

19 As appears from the judgment of the High Court counsel for the Attorney General had submitted that the foregoing provisions were sufficient to disclose the existence of an offence in this State which corresponded to the offence in the three warrants A, B and E. In short s. 5 in combination with s. 21(2) created and constituted the offence of supplying a controlled drug. Counsel did not produce any regulations made pursuant to the Act and although it might be said that he implicitly relied upon them, which was the suggestion made in submissions to this Court in the appeal, he contended that it was not necessary for him to do so since s. 5 and s. 21(2) were sufficient to disclose, as a matter of law, a criminal offence in this State and that this offence corresponded to the ones in the relevant warrants. In his judgment, the learned High Court judge concluded that

"Section 5 of the Act clearly empowers the Minister to make regulations, inter alia, for the purpose of prohibiting, or permitting subject to conditions or exceptions, the supply, the offering to supply, or the distribution of controlled drugs ... but I am satisfied that the applicant cannot simply refer to the provisions of s. 21(2) of the Act in order to make out correspondence in relation to the supply charges in these warrants."

20 Although the foregoing conclusion of the learned High Court judge was put in issue in this appeal it was effectively abandoned at the hearing of the appeal, and properly so. Accordingly I think it is convenient to dispose of this issue at this stage by saying that I consider...