Corcoran v Deputy Commissioner T P Fitzgerald

 
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[2005] IEHC 129

THE HIGH COURT

Record Number: No. 301 SP 2002
CORCORAN v FITZGERALD (DEPUTY COMMISSIONER)

Between:

Christopher Corcoran
Plaintiff

And

Deputy Commissioner T.P. Fitzgerald
Defendant

2002/301SP - Peart - High - 12/5/2005 - 2005 13 2744 2005 IEHC 129

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S50(2)(bbb)

EXTRADITION ACT (AMDT) ACT 1987 S2(1)(b)

EXTRADITION ACT 1965 S50(2)(c)

CRIMINAL LAW ACT 1977 S1(1)

WYATT v MCLOUGHLIN 1974 IR 378

FORGERY ACT 1913 S1

FORGERY ACT 1913 S2(1)(c)

FORGERY ACT 1913 S6(1)

FORGERY ACT 1913 S6(2)

FORGERY ACT 1913 S6(3)

CENTRAL BANK ACT 1942 S52

CENTRAL BANK ACT 1942 PART VII

CENTRAL BANK ACT 1942 S53(2)

CENTRAL BANK ACT 1942 S53(1)

CENTRAL BANK ACT 1942 S55(1)

CENTRAL BANK ACT 1989 S8

MYLES v SREENAN 1999 4 IR 294

CRIMINAL JUSTICE ACT 1924

CRIMINAL LAW

Extradition

Lapse of time - Prejudice - Whether delay explained by requesting authorities - Whether unjust, oppressive or invidious to deliver up - Whether real risk of unfair trial - Exceptional circumstances - Whether pre-trial publicity could give rise to real risk of unfair trial - Fade factor - Corresponding offence - Forgery - Conspiracy to defraud - Wyatt v McLoughlin [1974] IR 378 followed - Myles v Serbian [1999] 4 IR 294 considered - Extradition Act 1965 (No 17), ss 47, 50(2)(bbb) - Forgery Act 1913 (c 27), ss 1, 2(1)(c), 6 - Central Bank Act 1942 (No 22), ss 52, 53(1), 55(1)Order for release refused

Judgment of
Mr Justice Michael
1

Peart delivered on the 12th day of May 2005 :

2

On the 6th September 2001 the plaintiff was arrested on foot of four Warrants issued by a judicial authority in England and Wales and was brought, as then required, before a Judge of the District Court. He was remanded in custody pending an application for his rendition pursuant to s. 47 of the Extradition Act,1965 (as amended) ("the 1965 Act"), but shortly thereafter was admitted to bail subject to conditions, all of which have been met and observed.

3

The matter appeared again before the District Judge on a number of occasions between that date and the eventual disposition of the matter on the 8th July 2002, but adjournments were granted for reasons which become of some relevance in due course.

4

On the 15th July 2002, the District Judge made an order for the rendition of the plaintiff in respect of one only of the said four Warrants, namely Warrant B, being satisfied that correspondence had been made out in respect of the charge contained in that Warrant, and refused the application in respect of the remaining Warrants A, C and D, being not satisfied as to correspondence.

5

Subsequent to the making of the said order in respect of Warrant B the plaintiff, as he was entitled to do, instituted the present proceedings for the purpose of applying for an order for his release pursuant to the provisions of s. 50 (2)(b)(b)(b) of the 1965 Act on the grounds that because of the lapse of time since the date of the alleged offence, and other circumstances which the plaintiff regards as being exceptional, it would in all the circumstances be unjust, oppressive or invidious to return the plaintiff to the authorities in the United Kingdom.

6

Pending the hearing of this application, the plaintiff has been on bail.

7

Section 50(2)(bbb) of the 1965 Act (as inserted by s. 2(1)(b) of the Extradition (Amendment) Act,1987 provides:

"A direction under this section may be given by the High Court where the Court is of the opinion that -

… (bbb) by reason of lapse of time since the commission of the offence specified in the Warrant…and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47, or

(c) 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 six months."

8

Although the application being made by the plaintiff in these proceedings is for an order of release under s. 50 on account of lapse of time and other exceptional circumstances, this Court must, by virtue of (c) above, not only be of the opinion that it would not be unjust, oppressive or invidious to deliver him up under section 47, but also of the opinion that the offence specified in Warrant B corresponds to an offence in this jurisdiction, even though the learned District Judge has already satisfied himself in that regard on the 15th July 2002. I therefore propose to deal with the question of correspondence first.

9

Warrant B sets forth the alleged offence in the following terms:

"Between 1st January 1998 and 9th June 2000 within the jurisdiction of the Central Criminal Court for England and Wales, Christopher John Corcoran conspired with Terence James Silcock, Alan Harry Jones, David Levin, Marat Musin, Mark Anthony Adderley and other persons to deliver to another or others counterfeits of a currency note, namely United States one hundred dollar Federal Reserve notes, knowing or believing the same to be counterfeit and intending that the person to whom such notes were delivered or another should pass or tender them as genuine, contrary to Section 1(1) of the Criminal Law Act 1977. "

10

The essential constituents of the offence charged is that the plaintiff conspired with others to deliver counterfeit U.S. dollar notes to another or others, knowing or believing them to be counterfeit, and intending that the person to whom such notes were delivered or another should pass or tender them as genuine.

11

There is no need, since it is by now uncontroversial, to set out in any great detail the authority for the proposition that in conducting its exercise in determining correspondence, this Court must examine the facts as disclosed in the Warrant and satisfy itself that the same facts, if committed in this jurisdiction, would constitute a criminal offence of the required gravity here. In other words simply because there might be an offence of the same name in both the requesting State and this State is not determinative. As stated in this respect by Walsh J. inWyatt v. McLoughlin [1974] I.R. 378:

"………it is necessary that either the Warrant or some other document accompanying it should set out sufficient information as to these acts to enable the courts of the State to identify the corresponding offence, if any, in our law. It cannot be sufficient simply to use the name by which the crime is known, or alleged to be known in the requesting country even though the same name may be used in this country as the name of a crime, because the acts complained of, although having identical names, may constitute quite different criminal offences in different countries or, indeed, no offence at all in one of them. "

12

Patrick McCarthy SC on behalf of the defendant has suggested to the Court that the facts disclosed in Warrant B would, if committed in this State, constitute a criminal offence of the required gravity, and he has sought to demonstrate this by reference to certain statutory provisions. First of all, in s.1 of the Forgery Act, 1913, "forgery" is defined as "…the making of a false document in order that it may be used as genuine………and forgery with intent to defraud or deceive, as the case may be, is punishable as in this Act provided."

13

Secondly, s.2 (1)(c) of the same Act provides that "forgery of the following documents, if committed with intent to defraud, shall be felony and punishable with penal servitude for life :- … (c) any bank note………"

14

Thirdly, s.6 of the same Act provides in ss. (1) that "every person who utters any forged document...

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