Min for Justice v Fallon Aka O Falluin

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 20 October 2005
• Neutral Citation: [2005] IEHC 323
• Court: High Court
• Date: 20 October 2005

[2005] IEHC 323

THE HIGH COURT

Record No. 36EXT/2005

MIN FOR JUSTICE v FALLON AKA O FALLUIN

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 (AS

AMENDED)

BETWEEN

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

APPLICANT

AND

MICHAEL FALLON AKA MICHÉAL Ó FALL ÚIN

RESPONDENT

EUROPEAN ARREST WARRANT ACT 2003 S16

EUROPEAN ARREST WARRANT ACT 2003 S38

AG v PARKE UNREP SUPREME 6.12.2004 2004/3/577

EXTRADITION ACT 1965

STANTON v O'TOOLE UNREP SUPREME 9.11.2000 2000/17/6386

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S3(2)

AG v OLDRIDGE 2000 4 IR 593

MYLES v SREENAN 1999 4 IR 294

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S3

CRIMINAL JUSTICE (THEFT & FRAUD) OFFENCES ACT 2001 S3(3)

R v NICHOLS 1998 1 NZLR 608

CHARLETON MC DERMOTT BOLGER CRIMINAL LAW BUTTERWORTHS 1999 296

LAW REFORM COMMISSION REPORT ON THE LAW RELATING TO DISHONESTY 1992 CHAP 14

AG v HILTON UNREP SUPREME 30.7.2004 2004/3/551

MIN FOR INDUSTRY v HALES 1967 IR 50

CRIMINAL LAW

Statute

Interpretation - Repeal of common lawoffences - Conspiracy to defraud - Whetherrepeal of offences constitutes repeal ofconspiracy to commit offence - Whethersection repealed unmentioned offences orlimited to those named - Whethercorresponding offence in Irish law - CriminalJustice (Theft and Fraud Offences) Act 2001(No 50), s 3 - Surrender for extraditionordered (2005/36Ext - Finlay Geoghegan J -20/10/2005) [2005] IEHC 323

Minister for Justice, Equality and LawReform v Fallon (aka Ó Fallúin)

1 Ms. Justice Finlay Geoghegan delivered on the 20th October, 2005.

2 This judgment is the third judgment in a hearing under s. 16 of the European Arrest Warrant Act, 2003which commenced on 5 ^thSeptember, 2005 for the purpose of determining whether the High Court should make an order directing that the respondent be surrendered to the United Kingdom pursuant to a European arrest warrant issued by District Judge Workman at Bow Street Magistrates” Court on 21 ^st June, 2004. This judgment should be read in conjunction with the earlier judgments delivered by me herein on 9 ^th September, 2005 and 14 ^th October, 2005.

3 The necessity for this judgment arises in the following circumstances. Section 38 of the Act of 2003 precludes the surrender of a person under the Act in respect of an offence, unless the offence corresponds to an offence under the law of the State. At the hearing on 5 ^th September, I was informed by counsel on behalf of the respondent that it was accepted on his behalf that there was a corresponding offence in the State to the offence in respect of which he is sought under the European arrest warrant at issue in these proceedings. However, on 11 ^th October during a further hearing in relation to the issue upon which I gave judgment on 14 ^th October I was informed by counsel for the respondent that on a further consideration of the position it was now considered that such concession wrongly made and it appeared that there was no corresponding offence in the State at the relevant date. It was further submitted that by reason of the prohibition contained in s. 38 of the Act of 2003 and the inquisitorial nature of the Court's jurisdiction in a hearing under the Act of 2003 as identified by the Supreme Court in The Attorney General v. Parke (Unreported, 6 ^th December, 2004) and referred to in greater detail in my judgment of 14 ^th October, 2005 that the Court should now satisfy itself that there was a corresponding offence on the relevant date.

4 The Court is obliged under ss. 16 and 38 of the Act of 2003 to be satisfied that there is a corresponding offence in the law of the State prior to making an order for surrender. It therefore appeared necessary to permit further submissions on the issue. Counsel for both parties have made written submissions and I heard oral submissions on the issue on 18 ^th October 2005.

5 The European arrest warrant states that the English domestic warrant relates to one offence as follows:-

"Michael Anthony Fallon also known as Michael Fallon also known as Micheál Anthony Ó'Fallúin between the 14 ^th day of September, 1998, and the 8 ^th day of October, 1999, within the jurisdiction of the Central Criminal Court for England and Wales, conspired together with Philip Ryall and David Alexander Fallon to defraud the United Kingdom Passport Agency by the provision of false passport applications. Contrary to Common Law."

6 It then sets out particulars of the circumstances in which it is alleged the offence was committed and particulars of facts alleged against the respondent. There is also confirmation that the maximum punishment for conspiracy to defraud is ten years imprisonment, thereby satisfying the requirements of s. 38(1)(a)(i) of the Act of 2003.

7 Section 5 of the Act of 2003 provides:

"For the purposes of this Act, an offence specified in a European arrest warrant corresponds to an offence under the law of the State, where the act or omission that constitutes the offence specified would, if committed in the State on the date on which the European arrest warrant is issued constitute an offence under the law of the State."

8 Both counsel submitted that in applying the above definition, as the factual elements of the offence, as charged, are set out in the warrant that I should follow the approach of the Supreme Court, in relation to applications under the Extradition Act, 1965as amended, as stated in the judgment of Denham J. in Cornelius Stanton v. Patrick O'Toole (Unreported, 9 ^th November, 2000) at p. 18:

"The question is whether the factual elements as set out in the warrant would constitute particulars of an offence in Ireland."

9 The relevant date for the...