The Minister for Justice, Equality and Law Reform v James Anthony Tighe

JurisdictionIreland
JudgeMr. Justice Hardiman
Judgment Date21 December 2010
Neutral Citation[2010] IESC 61
CourtSupreme Court
Date21 December 2010

[2010] IESC 61

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

20/09
Min for Justice v Tighe
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
Applicant/Respondent

and

JAMES ANTHONY TIGHE
Appellant

EUROPEAN ARREST WARRANT ACT 2003 S13

CRIMINAL LAW ACT 1977 S1(1) (UK)

MIN FOR JUSTICE & ORS v DESJATNIKOVS 2009 1 IR 618

EXTRADITION ACT 2003 S142(6) (UK)

AG v HILTON 2005 2 IR 374

CHARLTON, CRIMINAL LAW 296

DPP v CAGNEY & MCGRATH 2008 2 IR 111

ORMEROD, CHEATING THE PUBLIC REVENUE 1998 CLR 627

R v HUDSON 1956 QBD 252

R v BEMBRIDGE 1783 22 STTR 1

EASTS PLEAS OF CROWN 1803

HAWKINS PLEAS OF CROWN 1716-1824

R v MAVJI 1987 WLR 1388

EUROPEAN ARREST WARRANT ACT 2003 S11

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S72

EXTRADITION LAW

European arrest warrant

Correspondence - European framework list - Principle of double criminality - Tax fraud - Money laundering - Conspiracy - Certainty of criminal offence - Whether internal conflict within warrant - Whether dual criminality could be established in terms of Irish law - Whether corresponding offence of conspiracy to cheat the Revenue - Whether circumstances of offence specified in warrant - Attorney General v Hilton [2004] IESC 51, [2005] 2 IR 374 followed - Minister for Justice, Equality and Law Reform v Desjatnikovs [2008] IESC 53, [2009] 1 IR 618; People (DPP) v Cagney and McGrath [2007] IESC 46, [2008] 2 IR 111; Attorney General v Cunningham [1932] IR 28; King v The Attorney General [1981] IR 233; R v Hudson [1956] QBD 252; R v Bembridge [1783] 22 State Trials 1 and R v Mavji [1987] WLR 1388 considered - European Arrest Warrant Act 2003 (No 45), ss 11 and 13 - Criminal Justice (Terrorist Offences) Act 2005 (No 2), s 72 - Council Framework Decision (2002/584/JHA), art 2.2 - Respondent's appeal allowed (20/2009 - SC - 21/12/2010) [2010] IESC 61

Minister for Justice, Equality and Law Reform v Tighe

Facts The proceedings concerned an application by the authorities in the UK for the extradition of the respondent. The respondent had been charged with a number of offences relating to alleged tax fraud, money laundering and also an offence concerning 'cheating the Public Revenue'. The High Court had found that the existence of the common law offence of conspiracy in the State was sufficient to satisfy correspondence for conspiracy and ordered delivery of the appellant. The appellant brought an appeal and it fell to be considered by the Supreme Court as to whether the appellant should be delivered up to the UK authorities. There were issues regarding the terms of the arrest warrant and whether the offences specified had corresponding offences in Ireland.

Held by the Supreme Court in allowing the appeal. Conspiracy was not in itself an offence and it was clear that there was no offence in the State of conspiracy to cheat the Revenue. It was uniquely a question for the issuing State to say whether the offences in questions were within the Framework decision and owing to the conflicting certifications within the documentation an order of surrender would not be made. In addition no circumstances had been disclosed which could ground an order of surrender in respect of the fourth charge of 'cheating the Public Revenue' and which could clarify if the alleged offence corresponded with one here. Delivery of the appellant on foot of the arrest warrant would be refused.

Reporter: R.F.

Mr. Justice Hardiman
Judgment delivered by Hardiman J. [nem diss]
1

This is a European Arrest Warrant case. The surrender of the appellant is sought so that he can be prosecuted in the United Kingdom for four offences ("the extradition offences") specified in a European Arrest Warrant which was issued in respect of the appellant by a District Judge (Magistrates Courts) in the United Kingdom on the 7th day of March, 2008.

2

This European Arrest Warrant was endorsed for execution in this jurisdiction on the 12th March, 2008, and the appellant was arrested on foot of it on the 3rd April, 2008, and brought before the High Court as required by s.13 of the European Arrest Warrant Act, 2003, as amended.

The offences.
3

The offences to which this warrant relates are unusual ones, at least to an Irish lawyer, and, as will transpire, they are somewhat arcane. They are as follows:

"(1)Tax Fraud.
4

Conspiracy to cheat the Public Revenue contrary to s.1(1) of the Criminal Law Act, 1977.

5

Particular of offence.

6

Between 1 January 1997 and 31 December 2005, with intent to defraud and to the prejudice of the Commissioners of Inland Revenue and Customs and Excise conspired together 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 Schemes.

(2)Tax Fraud.
7

Conspiracy to cheat the Public Revenue contrary to s.1(1) of the Criminal Law Act, 1977.

8

Particulars of offence.

9

Between 1 January 1997 and 31 December 2005, with intent to defraud and to the prejudice of the Commissioners of Inland Revenue and Customs and Excise conspired together with others to cheat the Public Revenue by reducing the taxable profits of Companies by dishonestly pretending that payments had properly been made to third parties for work purportedly carried out or services purportedly provided.

(3)Tax Fraud.
10

Cheating the Public Revenue contrary to Common Law.

11

Particulars of offence.

12

Between 1 January 1997 and 31 December 2005, cheated the Public Revenue by failing to disclose his income to the Inland Revenue.

(4)Money Laundering.
13

Conspiracy to enter into or otherwise be concerned in arrangements to facilitate the retention or control of the proceeds of crime of others contrary to s.1(1) of the Criminal Law Act, 1977.

14

Particulars of offence.

15

Between 1 January 1997 and 31 December 2005, conspired together with others to enter into or otherwise be concerned in arrangements whereby the retention or control of proceeds of criminal conduct of others was facilitated, knowing that those others were engaged in criminal conduct, namely cheating the Public Revenue."

16

In the Arrest Warrant it is certified that the maximum length of the custodial sentence available for the offence of cheating the Public Revenue is imprisonment for life and that, in practice, these offences, if involving large sums of money and deliberate conduct, result in sentences "approaching" fifteen years imprisonment. The offence of money laundering has a maximum sentence of fourteen years imprisonment.

17

Although the person supplying the information as to length of sentences does not appear to have noticed that three of the four charges relate to conspiracy rather than to a substantive offence, it appears that the offence of conspiracy to commit an offence, being a Common Law offence, carries a maximum sentence of life imprisonment, even if the sentence for the substantive offence is much less.

18

It is plain, therefore, that the offences in respect of which the Court has been invited forcibly to deliver the appellant out of the jurisdiction are extremely serious ones, whether viewed from the point of view of the Court, the appellant or that of the prosecutor. It is therefore all the more surprising that little care appears to have been devoted to the drafting of the European Arrest Warrant or, it must be said, to its scrutiny in this jurisdiction.

Relevant Law.
19

It is notorious that the law relating to the arrangements for the forcible delivery of a person out of this jurisdiction and therefore out of the protective jurisdiction of this Court, has been greatly changed by the European Arrest Warrants Act,2003, giving effect in this jurisdiction to the "Framework Decision on the European Arrest Warrant and surrender procedure".

20

This in itself is a very remarkable document. Its recitals suggest that it is the product of a long methodical process of action upon the Tampere Conclusions of 1999. But its history shows that it was in fact agreed in principle in the period of ten days immediately after the notorious terrorist outrage in New York on the 11th September, 2001. Just as strikingly the proposals which were being worked on prior to that epochal event related to terrorist crimes only but, in a period of time so short as to allow for very little, if any, consultation, it was decided to extend their effects to a very wide swathe of "ordinary" crimes. But this is history. The fact is that effect has been given to the said Framework Document by the Act of 2003.

Relevant statutory features.
21

Due to the narrow focus of this case it is unnecessary to discuss the Act of 2003 in general. It is sufficient to quote certain authoritative passages from the judgment of this Court inThe Minister for Justice, Equality and Law Reform v. Ivans Desjatnikovs [2009] 1 IR 618. At para. 9 in this judgment, under the heading "Form of the European Arrest Warrant", Denham J. says:

"Section 11(1) of the Act of 2003 mandates that the European arrest warrant shall insofar as it is practicable be in the forms set out in the annex to the Framework Decision, and shall specify matters as set out therein. This includes, for example, the name and nationality of the person in respect of whom the European arrest warrant is issued. As to the offence, the requirement is to specify the offence to which the European arrest warrant relates, including the nature and classification under the law of the issuing state of the offence concerned. It is also required to specify the circumstances in which it is alleged that the offence took place, including the time and place and degree of involvement. The penalties are required to be stated,inter alia. Thus a significant amount of detail is required."

22

At para. 11 of the judgment Denham J. set out certain...

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