Minister for Justice and Equality v Keane

• Jurisdiction: Ireland
• Judge: Ms. Justice Biggs
• Judgment Date: 12 May 2022
• Neutral Citation: [2022] IEHC 531
• Court: High Court
• Docket Number: [2021 No. 141 EXT.]

Between

Minister for Justice and Equality

Applicant

and

Alexander James Keane

Respondent

[2022] IEHC 531

[2021 No. 141 EXT.]

THE HIGH COURT

Surrender – Trade and cooperation agreement warrant – Correspondence – Applicant seeking an order for the surrender of the respondent to Northern Ireland pursuant to a United Kingdom trade and cooperation agreement warrant – Whether the offences met the statutory test for correspondence

Facts: The applicant, the Minister for Justice and Equality, applied to the High Court seeking an order for the surrender of the respondent, Mr Keane, to Northern Ireland pursuant to a United Kingdom Trade and Cooperation Agreement Warrant dated 12th of January 2021 (the TCA warrant). The TCA warrant was issued by Mr Conner, District Court Judge, as the issuing judicial authority. The TCA warrant sought the surrender of the respondent in order to prosecute him in respect of alleged fraud-type offences. The crux of the respondent’s case was that his surrender was prohibited inter alia by ss. 38 and 44 of the European Arrest Warrant Act 2003. He submitted that the offences did not meet the statutory test for correspondence as ordained by the Act. He submitted that further, or in any event, the offences were alleged to have occurred in the State, and afortiori, outside the issuing state, such that they fell foul of the s. 44 reciprocity test.

Held by Biggs J that she found correspondence between the first offence in the warrant and the candidate offences of theft, contrary to s. 4 of the Criminal Justice Theft and Fraud Offences Act 2001. The Court also found correspondence between the first offence in the warrant and the candidate offence of s. 6 of the 2001 Act. The Court found correspondence between the second offence in the warrant and the candidate offence of converting property, contrary to the Money Laundering and Terrorist Financing Act 2010. Biggs J was satisfied that surrender was not prohibited by s. 38 of the 2003 Act. The Court noted that it received a clear and unambiguous answer confirming that the offences occurred in Northern Ireland in the response from the issuing judicial authority dated the 21st of January 2022. Biggs J held that this assertion was clearly supported by the information available on the arrest warrant and by the additional information received. Biggs J was satisfied that surrender of the respondent was not prohibited by s. 44 of the 2003 Act. Biggs J held that the totality of the information set out in the warrant, and the additional documentation amounted to sufficient information as to the circumstances under which the offences were committed, including the date and time of the offence and the degree of involvement of the respondent. The details furnished enabled the Court to deal with the issue of endorsement of the warrant and to deal with the issue of correspondence and extraterritoriality. Biggs J held that the details given were sufficient to let the respondent know the nature of the charges against him. Biggs J held that should an issue of specialty arise, the details were sufficient. Biggs J held that the details were sufficient should any issue of ne bis in idem arise. Biggs J noted that the respondent also knew the reason for his arrest. Biggs J was satisfied that surrender was not prohibited by s. 11 of the 2003 Act.

Biggs J held that the Court would make an order pursuant to s. 16 of the 2003 Act for the surrender of the respondent to the United Kingdom of Great Britain and Northern Ireland.

Application granted.

JUDGMENT of Ms. Justice Biggs delivered on the 12 ^th day of May, 2022

1 . By this application, the applicant seeks an order for the surrender of the respondent to Northern Ireland pursuant to a United Kingdom Trade and Cooperation Agreement Warrant dated 12 ^th of January 2021 (“the TCA warrant”). The TCA warrant was issued by George Conner, District Court Judge, as the issuing judicial authority.

2 . The TCA warrant seeks the surrender of the respondent in order to prosecute him in respect of alleged fraud-type offences.

3 . The TCA warrant was endorsed by the High Court on the 9 ^th day of June 2021. The respondent was arrested on the 29 ^th of July 2021 and brought before the High Court on the 30 ^th of July 2021, on foot of same.

4 . I am satisfied that the person before the Court, the respondent, is the person in respect of whom the TCA warrant was issued. No issue was raised in that regard.

5 . I am satisfied that none of the matters referred to in ss. 21A, 22, 23 and 24 of the European Arrest Warrant Act, 2003, as amended (“the Act of 2003”), arise for consideration in this application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.

6 . Each of the offences in respect of which surrender of the respondent is sought carries a maximum penalty in excess of twelve months' imprisonment.

7 . As surrender is sought to prosecute the respondent, no issue arises under s. 45 of the Act of 2003.

8 . Points of objection to surrender were filed, dated 14 ^th September, 2021. The respondent objected to surrender on the following grounds:

• • That surrender is prohibited by Section 38 of the European Arrest Warrant Act 2003 on the grounds of an absence of correspondence.

• • That surrender is prohibited by Section 44 of the European Arrest Warrant Act on the grounds of the commission of the alleged offence outside the issuing state.

• • That the warrant does not contain requisite detail and, in particular, the detail provided at Section (f) is inadequate and/or it is incorrect and/or there is no information to suggest that a decision has been made to prosecute him in Northern Ireland and/or the basis therefore and/or how he might be prosecuted for an offence allegedly committed within this State.

• • The respondent otherwise puts the Minister on “full proof” of all relevant matters.

9 . The crux of the respondent's case is that his surrender is prohibited inter alia by sections 38 and 44 of the European Arrest Warrant Act, 2003. He submits that the offences do not meet the statutory test for correspondence as ordained by the Act. He submits that further, or in any event, the offences are alleged to have occurred in this State, and afortiori, outside the issuing state, such that they fall foul of the Section 44 reciprocity test.

10

The nature and legal classification of the offences and the applicable statutory provisions are set out in the TCA warrant as follows:

• 1. On the 8 ^th day of June 2016, [the respondent] dishonestly made a false representation, namely, that cheque number 022071 was a good and valid order for £3,000, with the intention, by making the representation, to make a gain for himself or another or to cause loss to WC Agriplant Limited or to expose them to a risk of loss, in breach of Section 2 of the Fraud Act 2006, contrary to Section 1 of the Fraud Act 2006.

• 2. Between the 2 ^nd day of June 2016 and the 26 ^th day of June 2017, converted criminal property, namely, a JCB 526 Teleporter, contrary to Section 327 (1) (c) of the Proceeds of Crime Act, 2002.

11 . Section 2 of the Northern Ireland Fraud Act 2006 states:

“2. Fraud by false representation

(1) A person is in breach of this section if he—

(a) dishonestly makes a false representation, and

(b) intends, by making the representation—

(i) to make a gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if—

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a) the person making the representation, or

(b) any other person.

(4) A representation may be express or implied.

(5) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).”

Section 327(1)(c) of the Northern Ireland Proceeds of Crime Act states:

“1. A person commits an offence if he—

(a) conceals criminal property;

(b) disguises criminal property;

(c) converts criminal property;

(d) transfers criminal property;

(e) removes criminal property from England and Wales or from Scotland or from Northern Ireland.”

12 . The warrant describes the circumstances of the offences in the following terms:

“ On 17 ^th May 2016 WC Agriplant Limited, Portarlington, County Offaly, purchased a JCB 526 Teleporter from a company in Ballycastle, County Antrim. WC Agriplant Limited paid £11,283.22 for the vehicle and it was agreed that they would be responsible for collecting it from Ballycastle.

Alexander James Keane (Keane) was subsequently contracted by WC Agriplant Limited to collect the Teleporter from Ballycastle and deliver it to the company's premises at Portarlington. Keane collected the Teleporter in Ballycastle on 2 ^nd June 2016.

By 7 ^th June 2016, the Teleporter had not been delivered to WC Agriplant Limited. Dawn Champ (Champ), accounts manager at WC Agriplant Limited, tried to contact Keane by telephone without success. Keane sent an email to the company at 0951 hours on 7 ^th June 2016 indicating that he would deliver the Teleporter that same day. However, it was not delivered. On 8 ^th June 2016 Keane telephoned Champ and alleged that his lorry, which had been carrying the Teleporter, had been stopped on the M5O and subsequently impounded in a customs yard. Keane told Champ that he would buy the Teleporter. Keane subsequently attended at WC Agriplant Limited's premises and gave Champ a cheque for £3,000, representing a deposit for the Teleporter.

Champ lodged the cheque into the company's...