Myles v Sreenan

 
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[1999] IEHC 198

THE HIGH COURT

No. 306 Sp/1997
MYLES v. SREENAN
IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACTS 1965–1994

BETWEEN

KELVIN MYLES
APPLICANT

AND

ASSISTANT COMMISSIONER OF AN GARDA SIOCHANA, HUGH SREENAN
RESPONDENT

Citations:

EXTRADITION ACT 1965 S50

HANLON V FLEMING 1981 IR 489

FURLONG, STATE V KELLY 1971 IR 132

WYATT V MCLOUGHLIN 1974 IR 378

WILSON V SHEEHAN 1979 IR 423

SCOTT V METROPOLITAN POLICE COMMISSIONER 1975 AC 819

O'SULLIVAN V CONROY UNREP BARR 31.7.1997 1998/29/11761

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 SCHED

EXTRADITION ACT 1965 S50(2)(bbb)

Synopsis

Extradition

Extradition; applicant wanted in England on a charge of conspiracy to defraud; applicant's claim for release under section 50, Extradition Act, 1965, as amended; whether there was correspondence between allegations as set out in extradition warrant and any offence under Irish law; whether common law offence of conspiracy was carried over under the Constitution; whether delay rendered extradition unjust.

Held: Application refused.

Myles v. Assistant Commissioner of an Garda Síochána - High Court: Geoghegan J. - 13/10/1999 - [1999] 4 IR 294

When considering whether the offence, in respect of which an applicant's extradition is sought, corresponds with an offence in this jurisdiction the Court must examine the factual components in the warrant backing the extradition request and a mere imperfection in draftmanship would not be sufficient to defeat the warrant. The High Court so held in refusing the relief sought and further saying that the common law offence of conspiracy to defraud was carried over by the Constitution.

1

Mr. Justice Geoghegan delivered on the 13th day of October, 1999.

2

This is a claim for release under Section 50 of the Extradition Act, 1965, as amended. The Applicant is wanted in England on a charge of conspiracy to defraud. The Extradition Warrant issued from a Magistrates Court in London and contains the following particulars under the heading "alleged offence":-

"Between 1st May, 1989 and 31st March, 1990 within the jurisdiction of the Central Criminal Court for England and Wales conspired together with Clive James Smith, David Charles Wilkinson, Roger Anthony Jeffries and David Russell Crowe to defraud such persons as might be minded to subscribe for shares in Richmond Oil and Gas plc on or after 6th July, 1989 pursuant to an Offer for Sale of 20,000,000 new ordinary shares of 10p each at 105p ("the shares"), and such persons who might on or after 14th July, 1989 be minded to deal in the shares on the Stock Exchange,

(1) by dishonestly concurring in the issue of an Offer for Sale document which was false or misleading in material statements or omissions, namely in representing to professional advisers, the Stock Exchange and to the public that the Offer for Sale was fully underwritten in circumstances where the defendants knew or suspected that a number of the sub-underwriting companies with which they were connected could not or might not be able to meet all of any of their underwriting commitments and hence that the underwriting obligations of Corporate Broking Services might not be honoured; and

(2) by concealing from the Stock Exchange and from the market on or after 14th July, 1989 that:-

(a) thirteen of the sub-underwriting companies connected variously with the defendants and controlled by them had failed to honour their underwriting commitments in the total sum of £15,165,255;

(b) allotment letters in respect of the shares subscribed for by the said defaulting sub-underwriters had been issued as a result of the implementation of a fraudulent scheme designed to represent that the shares allotted to the said sub-underwriters had been paid for when in fact they had not;

(c) the supposed proceeds of sale of those shares which had been issued had not been passed to Richmond Oil and Gas plc. and were not available for the purposes stated at pages 5 and 6 of the Offer for Sale document;

(d) that despite the issue by 25th July, 1989 of all the shares, the total cash from the sale of the shares which was available to Richmond Oil and Gas plc was only about £8.2 million and not £21 million as investors were entitled to believe was the case by virtue of the statement as to full underwriting of the issue and the issue of all the shares; and

(e) that in the foregoing circumstances there was between 14th July, 1989 and 31st March, 1990 to the knowledge of the Defendants, a false market in the shares.

Contrary to Common Law."

3

Counsel for the Applicant, Dr. Forde, challenges the extradition on the following grounds:-

4

(1) There was no correspondence between the allegations as made in the warrant and any known Irish offence.

5

(2) The Common Law offence of conspiracy was only carried over under the Constitution in so far as the charge involved a conspiracy to commit a crime. As a conspiracy to commit some illegality short of crime was too vague and uncertain, it was argued by Dr. Forde that it could not constitute a crime in this jurisdiction having regard to the Constitution and particularly if the Constitution is interpreted in the light of the European Convention on Human Rights.

6

(3) There was inordinate delay in proceeding with the prosecution in England and that such delay and surrounding circumstances rendered it unjust to extradite the Applicant.

7

(4) There had been some evidence at the abortive hearing of this application before Mr. Justice Cyril Kelly that if the Applicant could not be tried jointly with co-accused who were to be tired now in...

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