Byrne v Conroy

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date22 January 1997
Neutral Citation[1997] IEHC 10
Date22 January 1997
Docket NumberRecord No. 351Sp/1995

[1997] IEHC 10

THE HIGH COURT

Record No. 351Sp/1995
BYRNE v. CONROY
IN THE MATTER OF THE EXTRADITION ACTS 1965 TO 1994

BETWEEN

JOHN OLIVER BYRNE
APPLICANT

AND

NOEL CONROY
RESPONDENT

Citations:

EXTRADITION ACTS 1965 S50

AGRICULTURAL LEVIES (EXPORT CONTROL) REGS 1983 REG 1(2) (UK)

TREATY OF ROME ART 38

TREATY OF ROME ART 39

TREATY OF ROME ART 235

EEC REG 729/70 ART 1

EEC REG 974/71

EEC REG 677/85

EEC DIR 81/77

EXTRADITION (AMDT) ACT 1994

UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES 1988 ART 3

TZU TSAI CHENG V GOV OF PENTONVILLE PRISON 1973 AC 931

R V CHIEF METROPOLITAN MAGISTRATE EX PARTE SECRETARY OF STATE FOR THE HOME OFFICE 1989 1 AER 151

R V GOV OF PENTONVILLE PRISON EX PARTE KHUBCHANDANI 1980 71 CAR 241

MCFADDEN, STATE V GOV OF MOUNTJOY PRISON 1981 ILRM 113

MAXWELL INTERPRETATION OF STATUTES 12ED 239

HULLY, STATE V HYNES 100 ILTR 145

BUCHANAN V MCVEAGH 1954 IR 106

EUROPEAN COMMUNITIES ACT 1972 S2(2) (UK)

EUROPEAN COMMUNITIES ACT 1972 S6 (UK)

UNITED KINGDOM EUROPEAN COMMUNITIES ACT 1972 S6(1)

UNITED KINGDOM EUROPEAN COMMUNITIES ACT 1972 S6(2)

UNITED KINGDOM EUROPEAN COMMUNITIES ACT 1972 S6(4)

UNITED KINGDOM EUROPEAN COMMUNITIES ACT 1972 S6(5)

CUSTOMS & EXCISE ACT 1952

IMPORT DUTIES ACT 1958

EUROPEAN COMMUNITIES ACT 1972 S6(8)

TREATY OF ROME ART 39(1)(a)

EEC REG 729/70 ART 8

UNITED KINGDOM EUROPEAN COMMUNITIES ACT 1972 S6(8)

EXTRADITION ACT 1965 S3(1)

ROQUETTE FRERES SA V FRENCH REPUBLIC 1980 ECR 2917

NORDGETREIDE V HAUPTZOLLAMT HAMBURG-JONAS 1985 ECR 3127

COSTA V ENEL 1964 ECR 585

MARLEASING SA V LA COMMERCIAL INTERNACIONAL DE ALIMENTACIONSIA 1991 ECR 4135

TREATY OF ROME ART 209A

MAASTRICHT TREATY TITLE 2

MAASTRICHT TREATY ART E(77)

FACCINI DORE V RECREB 1994 1 ECR 3325

BELGIUM & LUXEMBOURG V MERTENS 1974 ECR 383

COMMISSION OF THE EUROPEAN COMMUNITIES V HELLENIC REPUBLIC 1989 2 ECR 2965

Synopsis:

Criminal Law

Extradition proceedings - alleged conspiracy to subvert functioning of scheme of monetary compensation amounts imposed on agricultural produce crossing E.U. member states" borders - whether offence a revenue offence within meaning of s.50(2)(a)(iii), Extradition Act, 1965 - whether monetary compensation amounts a tax - whether literal approach to construction of Extradition Act appropriate in case with E.U. dimension - Held: Monetary compensation amounts not a tax - offence not a revenue one - construction of provisions consistent with State's obligations to E.U. more appropriate than literal approach - (High Court: Kelly J. 22/01/1997) [1998] 3 IR 1 - [1997] 2 ILRM 99

|Byrne v. Conroy|

1

Mr. Justice Kelly delivered the 22nd day of January 1997.

THE ISSUE
2

A single question arises for determination in this application. It is this. Is the offence in respect of which it is sought to extradite the Applicant to Northern Ireland a revenue offence? If it is, then the Applicant must be released. If it is not, he must be extradited to Northern Ireland since no other grounds have been advanced which would justify his release.

BACKGROUND
3

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 Siochana.

5

The warrant was dated the 21st December, 1994 and was issued by Francis Gerald 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".

7

Following his arrest, the Applicant was brought before the District 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.

8

On the 2nd June, 1995 the present proceedings were commenced. They seek an Order directing the Applicant's release pursuant to the provisions of Section 50 of the Extradition Acts, 1965to 1994.

9

It is common case that the Applicant's alleged co-conspirators have been brought before the Courts of Northern Ireland and have pleaded guilty to charges arising out of conduct identical with that which underlies the charge alleged against the Applicant. On the 7th February, 1992 at Belfast Crown Court, Morris James Lutton, David Thompson Lutton and Sean Gerard Stanley were sentenced.

10

It is also common case that the prosecuting authorities in Northern Ireland allege that between the 1st June, 1986 and the 4th August, 1988 the Applicant was engaged in a scheme to subvert the Agricultural Levies (Export Control) Regulations, 1983 of the United Kingdom, which regulations were made pursuant to obligations imposed under Articles 38, 39 and 235 of the Treaty of Rome and pursuant to Council Regulations (EEC) 729/1970 and (EEC) 974/1971, superceded by Council Regulation (EEC) 677/85 consolidating the foregoing and by Council Directive 81/77/EEC.

11

These regulations established a scheme the purpose of which was to ensure, as far as practicable, that all farmers within the European Economic Community (as it then was), now the European Union, would be selling the same produce at the same price irrespective of fluctuations in exchange rates between the Member States.

12

Such a result was sought to be achieved by adjusting in a negative or a positive way the price of agricultural produce as it crossed the borders between individual Member States of the European Union.

13

The Applicant accepts that the Affidavit of George Nicholas Dixon sworn on the 3rd April, 1996 which has been filed on behalf of the Respondent contains an accurate description of the functioning of the scheme of levies and compensations established by the Agricultural Levies (Export Control) Regulations, 1983. It is that scheme which the Applicant is alleged to have conspired to breach. The relevant paragraphs from that Affidavit read as follows:

14

2 "(5) The Community during the relevant period had (and still has) a policy for agriculture (including trading in agricultural commodities) applicable to all members 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.

15

(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.

16

(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 countries, however, any...

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