Minister for Justice and Equality v J.A.T. No. 2

• Jurisdiction: Ireland
• Judge: O'Donnell J,Denham C.J.
• Judgment Date: 28 April 2016
• Neutral Citation: [2016] IESC 17
• Court: Supreme Court
• Docket Number: Appeal No. 294/2014
• Date: 28 April 2016

Denham C.J.

O'Donnell J.

MacMenamin J.

Laffoy J.

Between/

Minister for Justice and Equality

Applicant/Respondent

and

J.A.T. No. 2

Respondent/Appellant

[2016] IESC 17

Denham C.J.

O'Donnell Donal J.

Appeal No. 294/2014

THE SUPREME COURT

Extradition – European arrest warrant – Abuse of process – Appellant seeking to appeal against an order for his surrender – Whether it is sufficient for the Court to admonish the parties responsible for an abuse of process whilst also surrendering the appellant

Facts: The appellant was sought by the UK on foot of a European arrest warrant (the EAW) relating to the offences of conspiracy to cheat the public revenue and conspiracy to commit money laundering contrary to s. 1(1) of the Criminal Law Act 1977. The appellant did not consent to being surrendered on the EAW. It was opposed on the basis that in the particular circumstances the issue of the warrant and the application to the High Court amounted to an abuse of process on the part of the domestic prosecuting authority of the issuing State and/or the respondent, the Minister for Justice and Equality. On the 5th June, 2014 the High Court ordered the surrender of the appellant to the UK, pursuant to s. 16 of the European Arrest Warrant Act 2003. The High Court held that the appellant had suffered unjust harassment in that the proceedings against him were?de facto?abusive of the Court?s process. However, the High Court judge held that this was not a case in which he would be justified in denying the Minister relief by refusing surrender. The High Court held that the abuse of process would be addressed appropriately by an admonishment of the parties responsible. The following question was certified by the High Court for an appeal to the Supreme Court: ?Where such an abuse of process has been found to have occurred is it sufficient or appropriate for the Court to admonish the parties responsible whilst also surrendering the appellant?? The appellant appealed to the Supreme Court from that order. The Minister brought a cross appeal contending that the High Court erred in law and in fact in holding that: 1) the appellant had suffered unjust harassment on account of the manner in which his rendition had been pursued; 2) cumulatively the proceedings were oppressive to the appellant and/or to his family; and 3) the proceedings constituted an abuse of the Court?s process.

Held by O'Donnell J that if the second warrant in the proceedings had been issued reasonably promptly, and in relation to a person of full health, and with less forceful claims under Article 8 of the ECHR, it would be considered that the issuance of a second warrant after refusal of surrender on an earlier warrant would, by itself, be a ground for refusal of surrender. O?Donnell J held that the fact that the crimes alleged dated back to 1997 was more properly to be considered in the context of lapse of time rather than delay; the relative antiquity of the offences was relevant in considering those elements of delay in the issuance of the first warrant, and more importantly, the second warrant, and its execution. O?Donnell J thought that the delays were factors in the Court?s assessment, but they fell far short, by themselves, of establishing any abuse of process or grounds for refusal of surrender. O?Donnell J held that the repeat application, lapse of time, delay, impact on the appellant?s son, and knowledge on the part of the requesting and executing authorities of those factors, when weighed cumulatively, are powerful. Even then, and without undervaluing the offences alleged, O?Donnell J held that it was open to doubt that those matters would be sufficient to prevent surrender for very serious crimes of violence. O?Donnell J held that if it is considered that matters can properly be addressed by admonishment, then it is open to doubt that the conduct amounts to an abuse,?de facto?or otherwise, at all.

O'Donnell J held that the appeal would be allowed. The Court refused to make an order for the surrender of the appellant.

Appeal allowed.

Judgment delivered on the 28th day of April, 2016 by Denham C.J.

1 This is an appeal by J.A.T., the respondent/appellant, who is referred to as ?the appellant?, from the order of the High Court (Edwards J.) made on the 5th June, 2014 and perfected on the 6th June, 2014 and the written judgment delivered in relation thereto on the 9th June, 2014, which ordered the surrender of the appellant to the United Kingdom, pursuant to s. 16 of the European Arrest Warrant Act, 2003. The Minister for Justice and Equality, the applicant/respondent, is referred to as ?the Minister?.

2 The High Court held that the appellant had suffered unjust harassment in that the proceedings against him ?were de facto abusive of the Court's process?.

3 However, the learned High Court judge held that this was not a case in which he

?would be justified in denying the [Minister] relief by refusing surrender, notwithstanding that the manner in which the [appellant's] rendition has been pursued has been abusive of the process?.

4 The High Court held that the abuse of process would be addressed appropriately by an admonishment of the parties responsible.

5 The following question was certified by the High Court for an appeal to this Court:-

?Where such an abuse of process has been found to have occurred is it sufficient or appropriate for the Court to admonish the parties responsible whilst also surrendering the [appellant]??

Cross appeal

6 The Minister has brought a cross appeal contending that:-

(i) The High Court erred in law and in fact in holding that the appellant had suffered unjust harassment on account of the manner in which his rendition has been pursued;

(ii) The High Court erred in law and in fact in holding that cumulatively the proceedings reported at [2008] IEHC 118, referred to as ? T. No. 1?, and the Supreme Court appeal in Minister for Justice v T. [2010] IESC 61, and the present proceedings, were oppressive to the appellant and/or to his family, and

(iii) The High Court erred in law and in fact in holding that the proceedings constituted an abuse of the Court's process.

European Arrest Warrant for the appellant

7 The appellant is sought by the United Kingdom on foot of a European arrest warrant (referred to as ?the EAW?) relating to four offences:-

(a) Conspiracy to cheat the public revenue, contrary to s. 1(1) of the Criminal Law Act, 1977;

(b) A second offence of conspiracy to cheat the public revenue, contrary to s. 1(1) of the Criminal Law Act, 1977;

(c) Cheating the public revenue, contrary to common law; and

(d) Conspiracy to commit money laundering, contrary to s. 1(1) of the Criminal Law Act, 1977.

8 The section of the European arrest warrant where details of the offences are given is headed ?Tax Fraud?.

9 The particulars of the first offence given in the EAW was as follows:-

Between the 1st day of January 1997 and the 31st December, 2005, with intent to defraud and to the prejudice of the Commissioners of Inland Revenue and Customs and Excise, conspired with others to cheat the public revenue by dishonestly submitting false 715 CIS 24 and CIS 25 vouchers issued pursuant to Inland Revenue construction industry taxation schemes.

The description of the said offence was given as:-

Between 1997 and 2005, the appellant was at the centre of a large scale fraud on the UK Public Revenue. He managed and controlled a large number of companies and individuals in the UK associated with the construction industry, which were used to systematically defraud the Revenue by dishonestly pretending that payment had been properly made to third parties which held tax exemption vouchers under the Inland Revenue Construction Industry Scheme (?CIS Scheme?), thereby resulting in the dishonest submission of such vouchers to the Revenue. Such pretence allowed payments to be made by a contractor gross of tax and VAT to be passed down the chain accordingly. False invoices were raised to justify such payments. Tax and VAT were not accounted for to the Revenue. Instead, the funds passed down the chain were ultimately withdrawn in cash, to pay an off record workforce cash in hand without deduction of tax, and also to benefit the appellant and others involved in the fraud. The loss to the Revenue is in excess of £10 million.

10 The second offence described that between 1997 and 2005, the fraud operated on the UK Revenue by the appellant and others extended to companies and businesses independently of the Revenue Construction Scheme (CIS Scheme). It was stated that in pursuance of the fraud, false invoices were created to give the impression that work had been legitimately carried out by parties, so as to disguise the dishonest extraction of funds from those companies and businesses, which sums were ultimately converted to cash and falsely accounted for, thereby necessarily reducing the taxable profits of the companies and businesses. The fraud, it was stated, was perpetrated against the UK public revenue. And, it was also stated that, the appellant was based in London, in the UK, throughout the period of the offending.

11 The third offence alleged is that of cheating the Public Revenue, contrary to Common Law. The particulars given are that between the 1st January, 1997, and the 31st December, 2005, he cheated the public revenue by failing to disclose his income to the Inland Revenue. In that time, it was stated, in excess of £2 million was received into personal bank accounts held by the appellant, which income he concealed, and failed to make any or any proper return to the Revenue, or to make any payment of income tax.

12 The fourth offence alleged is described as money laundering, of which particulars and a description are...