Byrne v Conroy

JurisdictionIreland
JudgeHamilton C.J.
Judgment Date19 February 1998
Neutral Citation1998 WJSC-SC 4137
CourtSupreme Court
Docket Number[1995 No. 351 Sp.; S.C. No. 56 of 1997]
Date19 February 1998

1998 WJSC-SC 4137

THE SUPREME COURT

HAMILTON C.J.

Oapos:FLAHERTY J.

LYNCH J.

59/97
BYRNE v. CONROY
IN THE MATTER OF THE EXTRADITION ACTS 1965 to 1994

BETWEEN:

JOHN OLIVER BYRNE
Applicant/Appellant

and

NOEL CONROY
Respondent
1

Judgment delivered on the 19th day of February 1998 by Hamilton C.J. [NEM DISS]

2

This is an appeal brought by John Oliver Byrne of Strandfield House, Mount Pleasant, Dundalk in the County of Louth (hereinafter referred to as the Appellant) against the judgment of Kelly J. delivered on the 22nd day of January, 1997 and the Order made in pursuance thereof on the same date whereby the Appellants application for his release pursuant to the provisions of Section 50 of the Extradition Act, 1965, as amended (hereinafter referred to as the Act) was refused.

Facts
3

The facts relevant to the said application are not in dispute and were set forth in the learned trial judge's judgment as follows:-

"The Applicant is a farmer. He is aged 44 years and normally resides with his wife and twelve children at Strandfield House, Mount Pleasant. Dundalk, Co. Louth. There he farms 130 acres and also operates a lairage facility on the farm for livestock which are destined for export from the nearby port of Greenore."

4

On the 19th April, 1995 the Applicant was arrested at his home on foot of a warrant issued in Northern Ireland and endorsed for execution in the State by the Respondent who is a Deputy Commissioner of An Garda SÍochÁna.

5

The warrant was dated the 21st December, 1994 and was issued by Francis Gerard Harty, a Resident Magistrate and Justice of the Peace in Northern Ireland.

6

The warrant named Douglas Fraser Neish as the Complainant. He is described as a Senior Investigation Officer of Her Majesty's Customs and Excise Investigation Division with an address at Vigilant House, 72/76 Inchinnan Road, Paisley, Scotland. The Applicant in these proceedings is identified in the warrant as the Defendant. The warrant is couched in the following terms:

"Whereas a complaint has been made on oath and in writing that the defendant, John Oliver Byrne, formerly of 14, Dernaroy Road, Aghadavoyle, Co. Armagh, Northern Ireland, on divers dates between the 1st day of June, 1986 and the 4th day of August, 1988 in the then County Court Division of South Down, now in the County Court Division of Armagh and South Down, and elsewhere within the jurisdiction of the Crown Court, conspired with Morris James Lutton, David Thompson Lutton, Sean Gerard Stanley and other persons not before the court to defraud the Intervention Board for Agricultural Produce ("the Board") of the Monetary Compensation Amounts due to it in respect of loads of grain exported from Northern Ireland to the Republic of Ireland by dishonestly avoiding payments due to the Board through:-

(a) Failing to invoice or otherwise keep appropriate records of the said loads of grain supplied to the purchasers thereof;

(b) Adopting a system of payments for the said loads of grain which concealed the true nature and extent of the transactions and the true identities of the purchasers and the vendors of the said loads;

(c) Using covered sheds straddling the land boundary at Killeen School Road, Killeen, Co. Armagh (an "unapproved" road) to conceal the said loads of grain and the handling thereof; and

(d) Changing the tractor units drawing the bulk grain carriers as between the movement of the said loads of grain north of the land boundary and the movement of the said loads of grain south of the land boundary.

Contrary to Common Law".

Following Court and on the 31st May, 1995 an application for his extradition to Northern Ireland to answer the charge set forth in the warrant was heard and determined. The District Court made an Order for his extradition.

On the 2nd June, 1995 the present proceedings were commenced. They seek an Order directing the Applicant's released pursuant to the provisions of Section 50 of the Act."

7

The warrant referred to above is hereinafter referred to as "the warrant".

Statutory Provisions
8

The statutory provisions relevant to the issue of extradition in this case are as follows:-

9

1. Section 50 of the Act as amended provides as follows:-

10

(1) a person arrested under this part shall be released if the High Court or the Minister so directs in accordance with this Section.

11

2. A direction under this Section may be given by the High Court where the Court is of opinion that

12

(a) the offence to which the warrant relates is ............

13

(iii) a revenue offence.

14

A "revenue offence" is defined in the Act as follows:-

15

"Revenue Offence", in relation to any country or place outside the State, means an offence in connection with taxes, duties or exchange control........... ."

16

As no other grounds had been put forward on behalf of the Appellant which would justify his release the only issue which arose in the proceedings in the High Court and in this Court is whether the offence set forth in the warrant was a "revenue offence".

17

The learned trial judge held that, as a matter of Irish law, the said offence was not a revenue offence and was not connected with taxes, duties or exchange control. Before making such finding the learned trial judge did, as he was obliged to do, carry out an extensive inquiry into and an analysis of the offence with which the Appellant was charged for the purpose of deciding whether the offence was a revenue offence.

18

From this finding, the Appellant has appealed to this Court on the grounds that:-

19

(a) the learned trial judge erred in law in holding that the agricultural levy which the Appellant/Applicant is alleged to have conspired not to pay (although called a levy and although defined as being a tax in the Agricultural Levies (Export Control) Regulations 1983 made by the Government of the United Kingdom), is not in fact a tax;

20

(b) the learned trial judge was wrong in law in holding that the offence in respect of which the delivery of the Appellant/Applicant is sought was not a "revenue offence" as defined by s. 3(1) of the Extradition Act, 1965as amended by the Extradition (Amendment) Act, 1994;

21

(c) the learned trial judge was wrong in refusing to direct the release of the Appellant/Applicant pursuant to section 50 of the Extradition Act, 1965.

22

As appears from the judgment of the learned trial judge, the Appellant accepted that the affidavit of George Nicholas Dixon sworn on the 3rd day of April, 1996, which was filed on behalf of the Respondent, contained an accurate description of the functioning of the scheme of levies and compensations established by the Agricultural Levies (Export Control) Regulations 1983, which were made by the Government of the United Kingdom pursuant to obligations under Articles 38, 39 and 235 of the Treaty of Rome and pursuant to Council Regulations (EEC) 729/1970 and EEC 974/1971, superseded by Council Regulation (EEC) 677/85, consolidating the foregoing and by Council Directive 81/77/EEC.

23

The relevant paragraphs of the said affidavit established that:-

24

2 "(5) The Community during the relevant period had (and still has) a policy for agriculture (including trading in agriculture commodities) applicable to all member countries, called the Common Agricultural Policy ("the CAP"). Within the administration of the CAP, prices for various purposes (including minimum prices guaranteed by the Community for certain agricultural commodities) were set and expressed centrally in European Currency Units ("ECUs"). In order to put the CAP into effect in each member country, this Community-wide ECU price had to be converted into the national currency of each member country.

25

(6) Because the currencies of some member countries floated against each other it was apparent that if the rates of exchange established by the foreign exchange markets were used as the basis for this conversion, the result would be unacceptable instability in agricultural and food prices. In order, therefore, both to ensure the maintenance of the common set price levels when converted into each national currency and avoid the political consequences of price instability, a system of fixed agricultural rates of exchange was devised for use in the CAP when converting ECU prices into national currencies. These agricultural exchange rates were commonly known as "Green" rates, as in such expressions as "Green pound" or "Green punt". This system did not devalue or revalue in line with market exchange rates and was in force throughout the relevant period.

26

(7) In member countries where the "Green" rate was different from the market rate of exchange, this caused no problems within the individual country. When trade in agricultural commodities took place between member States, however, any difference between the "Green" rate and the market rate in either or both countries led to a distortion of trade, tilting the level playing field. The Community, therefore introduced a system of monetary compensatory amounts ("MCAs") which was intended to countervail against foreign exchange profits or losses and so maintain the proper functioning of the CAP in general and its price system in particular. MCAs sought to prevent foreign exchange related variations from a common Community price and thus prevent artificial movements in the flow of trade. They operated as follows.

27

(8) In trade between member countries, if the country from which an agricultural commodity was being exported had a "Green" rate of exchange above the market rate, the MCA compensated by operating as a levy on exports and a refund on imports (a negative MCA). If on the other hand, the exporting country had a "Green" rate of exchange below the market rate, the MCA compensated by operating as a refund on exports and a levy on imports (a positive MCA). During the relevant...

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