Minister for Justice v O'Connor
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kerida Naidoo |
| Judgment Date | 13 February 2023 |
| Neutral Citation | [2023] IEHC 222 |
| Docket Number | [2022 No. 179 EXT.] |
| Court | High Court |
[2023] IEHC 222
[2022 No. 179 EXT.]
THE HIGH COURT
Judgment of Mr. Justice Kerida Naidoo delivered on the 13th day of February, 2023 .
. By this application, the applicant seeks an order for the surrender of the respondent to The Kingdom of Sweden pursuant to a European Arrest Warrant dated 12th August 2022. The EAW was issued by a Public Prosecutor as the Issuing Judicial Authority.
. The EAW seeks the surrender of the respondent in order to enforce a custodial sentence of 3 years and 8 months' imprisonment imposed upon the respondent on the 5th of July 2021, of which 1 year, 10 months and 20 days remains to be served.
. The Issuing State has certified that, the 14 offences to which the EAW relates, were committed contrary to the following provisions of Swedish law:
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a. 3 gross accounting offences contrary to Chapter 11, Section 5, second paragraph of the Swedish Criminal Code.
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b. 10 gross tax offences contrary to section 4 of the Swedish Tax Offences Act (1971:69).
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c. 1 gross money laundering offence contrary to section 4 and section 5, first paragraph of the Swedish Act on Penalties for Money Laundering (2014:307).
. The respondent was arrested on 3rd September 2022, on foot of a Schengen Information System II alert, and brought before the High Court on the same date. The EAW was produced to the High Court on 16th September 2022.
. I am satisfied that the person before the court, the respondent, is the person in respect of whom the EAW was issued. No issue was raised in that regard.
. I am satisfied that none of the matters referred to in section 21A, 22, 23 and 24 of the European Arrest Warrant Act 2003, as amended (“the Act of 2003”), arise for consideration in the application and surrender of the respondent is not precluded for any of the reasons set forth in any of those sections.
. I am satisfied that the minimum gravity requirements of the Act of 2003 have been met. The sentence in respect of which surrender is sought is in excess of four months' imprisonment.
. A point was originally raised in the notice of objection on the basis that there was a lack of clarity about the length of sentence that remained to be served. As a result of additional information clarifying the length of the remaining sentence this point was not pursued at the hearing.
. The respondent does submit that there is a lack of clarity about the role the respondent played in the offending, specifically in relation to the 3 gross accounting offences and the offences that involved disregarding of accounting obligations. The warrant sets out that the respondent and other defendants acted jointly and in collusion with each other in respect of all of the acts giving rise to the offences. The background information provided about the money laundering offence, sets out the role of the respondent. In the context of the other offences the description provided in the warrant makes it clear that the respondent acted together with others in respect of the conduct giving rise to the offences. The fact that the respondent maintains he did not have a specific responsibility to physically file tax returns is not a matter for this Court to engage with, as the respondent was convicted of the offences and appeared in person at the trial resulting in the conviction and sentence.
. I am therefore satisfied that no issue arises under section 11 of the Act of 2003.
. The extradition of the respondent is sought in relation to 14 offences.
. There is one money laundering offence and the Issuing Judicial Authority has ticked the box in Part E.I. of the warrant in respect of “ laundering the proceeds of crime”. In this instance, the Issuing Judicial Authority has certified that the money-laundering type offence referred to in the EAW is an offence to which Article 2.2 of the Framework Decision applies, that it is punishable by a maximum penalty of at least three years' imprisonment and has indicated the appropriate box for “ laundering of the proceeds of crime”. It is accepted that the ticked box offence refers to the money laundering offence. There is no manifest error or ambiguity in respect of the aforesaid certification such as would justify this Court in looking beyond same.
. At Part E.II. of the warrant the Requesting Judicial Authority says: “ Gross tax offence and gross accounting offence are not offences included in the cases in point I above.” It is therefore necessary for the applicant to establish correspondence in respect of the remaining offences of gross accounting offences and gross tax offences.
. The warrant sets out three offences described as “ gross accounting offences”, described as follows in Part E of the warrant:
“ Gross accounting offence on 3 occasions during the period 01/01/2018 to 31/08/2020
During the time period 01/01/2018 to 31/08/2020, John O Connor and other defendants were representatives of and/or jointly ran a business that was subject to the obligation to maintain accounts, and were thus responsible for ensuring that the requirement to maintain accounts in accordance with the Accounting Act was met. Together and in collusion with each other and others, they ran a business under the company names J & A Stenspecialist AB, J & A Stenspecialist private firm, Swedco Dränering and Markentreprenad private firm and as another unregistered business.
Together and in collusion with each other and others, they intentionally disregarded the accounting obligation under the Accounting Act by neglecting to systematically register current business transactions or keep the accounting records in a secure manner.”
The warrant then sets out the unaccounted earnings and continues:
“As a consequence of this, it was not possible to assess the development of the business from the accounts.
These offences are considered gross because the disregard involved very substantial amounts and because the acts were part of criminal activities that were carried out systematically and they were of a particularly dangerous nature as they were committed with the intention of evading tax.”
. The warrant sets out 10 offences described as “ gross tax offences” in Part E of the warrant:
“ Gross tax offence on 10 occasions during the period 14/05/2018 to 17/08/2020
During the period 01/01/2018 to 31/08/2020, John O Connor and other defendants were representatives of and/or jointly ran a business that was subject to the obligation to maintain accounts. Together and in collusion with each other and others, they ran a business under the company names of J & A Stenspecialist AB, J & A Stenspecialist private firm, Swedco Dränering and Markentreprenad private firm and as another unregistered business.
Together and in collusion with each other and others, in Stockholm or in another location in Sweden, they intentionally neglected, during the accounting periods January 2018 until and including August 2020, to provide information in tax declarations to the Swedish Tax Agency, and/or they provided incorrect information about VAT for the above-mentioned business. These acts resulted in the risk of output VAT amounting to approximately SEK 7 million after deductions for any input VAT being withheld from the public purse.
These offences are to be considered gross as they involved very substantial amounts and the acts were part of criminal activities that were carried out systematically and on a large scale.”
. In order to understand the context in which the 13 tax offences are said to have been committed it is helpful to set out the background to the money-laundering offence set out in the warrant:
“Untaxed business activities were run under the names J & A Stenspecialist AB, J & A Stenspecialist private firm, Swedco Dränering and Markentreprenad private firm and another unregistered business (hereinafter referred to as the Company). The majority of the invoices, that were issued by the representatives of the Company or on behalf of them to customers, were incorrect as they stated VAT that had not been paid/declared and as the invoices made it appear that the payments were going to the Company. When paying the invoices, the customers were actually making payments to the defendants' various private accounts. The case involves at least approximately SEK 7 million in withheld VAT. The payroll (employment) tax and the income tax were not paid either.
John O Connor:
— provided his private bank accounts with Skandiabanken, Handelsbanken and Swedbank and received payments to them to a total of approximately SEK 5.2 million, which originated from the above-mentioned offences committed within the scope of the Company's business activities. In addition, he received approximately SEK 1 million via another defendant's account
— turned over approximately SEK 4.1 million through cash withdrawals, purchases and transfers to various individuals
John O Connor took the above-mentioned measures within a business and/or an activity run on a habitual basis and on a large scale.
The measures were taken with a view to conceal the fact that the money derived from offences or criminal activities, and/or to promote the possibility of someone appropriating the property or its value. The measures illicitly promoted the possibility of another person turning over money that derived from an offence or criminal activities.
The offence is gross as it involved substantial amounts and the measures were part of criminal activities that were conducted systematically, or on a large scale and of a particularly dangerous nature.”
. It is apparent from the description of the acts underpinning the money laundering offence that the respondent is said to have been involved in criminal...
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