Supreme Court allows appeal to remit extradition case to High Court on corresponding offence issue.

THE SUPREME COURT

Murray C.J.

Denham J.

McCracken J.

217/04

BETWEEN

ATTORNEY GENERAL

APPLICANT / APPELLANT

AND

MARTIN PARKE

RESPONDENT

JUDGMENT delivered the 6th day of December 2004, by Murray C.J.

1. In this case the High Court refused an application on behalf of the Attorney General for an order pursuant to s. 47 of the

Extradition Acts, 1965-2001 for the delivery of the respondent to the United Kingdom in respect of charges set out in three

warrants. The application before the High Court had been in respect of charges set out in total seven warrants. The order

sought was granted in respect of four of those warrants and the Attorney General has appealed against the refusal of the

learned High Court judge to make an order pursuant to s. 47 in respect of the remaining three warrants. These are described as

warrants A, B and E in the judgment of the High Court. The charges contained in those warrants were set out in the learned

High Court judge’s judgment in the following terms:

“Warrant A charges as follows:

“That he on the 23rd day of June, 1998 supplied a controlled drug of class A namely 2.38 grams of powder containing

diamorphine to Gary Baldrey in contravention of s. 4(1) of the Misuse of Drugs Act, 1971. Contrary to s. 4(3)(a) of the

Misuse of Drugs Act, 1971”

Warrant B charges the same offence of supply, but in respect of a different date and to a different person.

Warrant E charges him with supply in the follow terms:

“On the 30th day of March, 1999 at Parkview Court, Roe Green, London, NW9, England supplied a controlled drug of class

A namely 0.261 grams of powder containing diamorphine to Thomas Cullinane in contravention of s. 4(1) of the Misuse of

Drugs Act, 1971 contrary to s. 4(3) of the Misuse of Drugs Act, 1971.”

…”

2. Part III of the Extradition Act, 1965, as amended, provides for the return of persons to, inter alia, the United Kingdom who

are wanted on foot of warrants issued by a court in that jurisdiction to stand trial on criminal charges. Until the coming into

force of the Extradition (European Union Conventions) Act, 2001 it was the District Court who exercised the jurisdiction to make

an order, pursuant to s. 47 of the 1965 Act. Section 20 of the Act of 2001 had the effect of transferring to the High Court the

jurisdiction in first instance of considering and determining an application pursuant to the aforesaid s. 47 for the removal of a

person to the United Kingdom for the purpose of standing trial there. Section 20(1)(a) amended the Act of 1965 by providing for

the substitution of “High Court” for “District Court” in each place that it occurs.

3. Accordingly s. 47(1) and (2) now read as follows:

“47. – (1) Where a person named or described in a warrant is before the High Court in pursuance of this Part that Court

shall, subject to the provisions of this Part, make an order for his delivery at some convenient point of departure from

the State into the custody of a member of a police force of the place in which the warrant has been issued, for

conveyance to that place, and remand him until so delivered.

(2) An order shall not be made under subsection (1) if it appears to the Court that the offence specified in the warrant

does not correspond with any offence under the law of the State which is an indictable offence or is punishable on

summary conviction by imprisonment for a maximum period of at least six months.”

4. This was the essence of the judicial task conferred on the learned High Court judge when this application was before him.

With regard to corresponding offences s. 26 of the Act of 2001 introduced an amendment to s. 42 of the 1965 Act by inserting

a subsection (3) in the following terms:

“For the purposes of this Part, an offence specified in a warrant corresponds with an offence under the law of the State

if -

(a) the act constituting the offence so specified would, if done in the State on the day the warrant is produced under

section 43(1)(b), constitute an offence under the law of the State, or

(b) in the case of an offence so specified consisting of one or more acts including any act committed in the State, such

act constituted an offence under the law of the State on the day on which it was committed or alleged to have been

committed.”

5. One of the tasks of the High Court in such an application is, as s. 47(2) makes clear, to determine whether the offence in

respect of which a person’s extradition is sought corresponds with an offence in the State. The case-law of this Court

concerning the application of s. 47 by a judge of the District Court now applies to the exercise of that jurisdiction by a judge of

the High Court.

6. In this particular case the learned High Court judge had no difficulty in determining that the four offences mentioned in the

four warrants for which he granted an order corresponded to offences in Irish law within the terms of section 47(2). These were

offences concerning the possession of controlled drugs, the possession of which was also an offence in this State.

7. The offences referred to in warrants A, B and E on the other hand relate to the supply simplicitor, as opposed to possession,

or possession with intent to supply, of similar drugs.

8. In the High Court it was contended on behalf of the Attorney General that the corresponding offence within this State was

to be found in s. 5 in combination with s. 21(2) of the Misuse of Drugs Act, 1977. Section 5 of the Misuse of Drugs Act, 1977

provides:

“(1) For the purpose of preventing the misuse of controlled drugs, the Minister may make regulations -

(a) prohibiting absolutely, or permitting subject to such conditions or exceptions as may be specified in the regulations,

or subject to any licence, permit or other form of authority as may be so specified -

…

(iii) the supply, the offering to supply or the distribution of controlled drugs, …”

8. Section 21(2) of the Misuse of Drugs Act, 1977 provides:

“Any person who, whether by act or omission, contravenes or fails to comply with regulations under this Act shall be

guilty of an offence.”

9. As appears from the judgment of the High Court counsel for the Attorney General had submitted that the foregoing provisions

were sufficient to disclose the existence of an offence in this State which corresponded to the offence in the three warrants A,

B and E. In short s. 5 in combination with s. 21(2) created and constituted the offence of supplying a controlled drug. Counsel

did not produce any regulations made pursuant to the Act and although it might be said that he implicitly relied upon them,

which was the suggestion made in submissions to this Court in the appeal, he contended that it was not necessary for him to

do so since s. 5 and s. 21(2) were sufficient to disclose, as a matter of law, a criminal offence in this State and that this

offence corresponded to the ones in the relevant warrants. In his judgment, the learned High Court judge concluded that

“Section 5 of the Act clearly empowers the Minister to make regulations, inter alia, for the purpose of prohibiting, or

permitting subject to conditions or exceptions, the supply, the offering to supply, or the distribution of controlled drugs

… but I am satisfied that the applicant cannot simply refer to the provisions of s. 21(2) of the Act in order to make out

correspondence in relation to the supply charges in these warrants.”

10. Although the foregoing conclusion of the learned High Court judge was put in issue in this appeal it was effectively

abandoned at the hearing of the appeal, and properly so. Accordingly I think it is convenient to dispose of this issue at this

stage by saying that I consider that the learned High Court judge was entirely correct. Although s. 5 and in particular s. 21(2)

of the Misuse of Drugs Act, 1977 lay down the essential framework within which a criminal offence could arise it also specified a

precondition for such an offence to come into existence namely the making of regulations by the Minister under that Act. It is

manifest that a court could not determine whether any particular alleged act relating to the supply as such of a controlled drug

was, as a matter of law, a criminal offence in the State unless regard is had to regulations made pursuant to section 5. The

assertion by the State that a criminal offence could be ascertained from those sections without regard to any regulations made

pursuant to s. 5 was ill-founded.

11. The focal point of the appeal is the ensuing conclusion of the learned High Court judge where he stated:

“The Minister may or may not have made such regulations, and it is a matter for the applicant to satisfy this Court that

such regulations have been made and are still in force, and this has not been done. I am not therefore satisfied that

correspondence has been made out in relation to the charges set forth in warrants A, B and E herein.”

12. In so holding it is clear that the learned High Court judge took the view that the onus of identifying, as a matter of law, a

criminal offence against the law of the State which corresponded to the foreign offences rested exclusively on the Attorney

General and that accordingly in not producing or proving the existence of regulations under the Act of 1977 he had failed to

discharge that onus.

13. In this appeal, the submission by Senior Counsel for the Attorney General, who had not appeared in the High Court, was

that these extradition proceedings were not a criminal trial but more in the nature of an inquiry. It was a matter for the trial

judge to ascertain or enquire as to whether there were regulations in force which disclosed a criminal offence in Irish law

corresponding to the offences in the foreign warrants. Counsel referred to the case of Attorney General –v- Dyer (Supreme

Court, unreported, 16th January, 2004) where such an approach was adopted when the State put forward two possible

offences and asked the Court to identify one of them as being a corresponding offence.

14. Counsel for the respondent in this appeal submitted that the issue in the appeal concerned the onus and degree of proof

which rests on the Attorney General in extradition applications to establish “correspondence” as he put it. He submitted that in

an extradition application the onus is on the applicant Attorney General to identify the offence in Irish law alleged by him to be

the corresponding offence.

15. In the course of the appeal it became clear that regulations pursuant to s. 5 of the Misuse of Drugs Act, 1977 had been

made by the Minister it being an offence pursuant to s. 21(2) of that Act to contravene them. This was not in dispute. The

issue was whether the Attorney General having failed to produce those regulations in the course of the High Court proceedings

the learned High Court judge was correct in dismissing the application pursuant to s. 47 of the 1965 Act without further

consideration of the matter by him on the grounds that the Attorney General had failed to discharge a burden of proof placed

upon him.

16. In addressing this issue I think I should first of all state the obvious, namely, that although extradition may entail serious

consequences for a person subjected to it, such as the loss of liberty, extradition proceedings are not a criminal process and

are not in the nature of a criminal trial. The burden of proof of facts which may rest on the applicant in these proceedings is not

that of a criminal trial. I hasten to add that the learned High Court judge did not approach this matter on such a basis and it is

just that I consider it appropriate at this point to distinguish between extradition proceedings and other forms of proceedings,

criminal and civil. An extradition proceeding, pursuant to the relevant Acts, has its own special features which in a certain

sense makes it sui generis.

17. In Wyatt –v- McLoughlin [1974] IR 378 Walsh J. in his judgment (with whom a majority of the Court concurred), referred to

the nature of extradition as being

“… the formal surrender, based upon reciprocating arrangements by one nation with another, of an individual accused or

convicted of an offence who is within the jurisdiction of the requested country when the requesting country, being

competent to try and punish him, demands his surrender. The formal arrangements at which this may be secured and

the principle of reciprocity enshrined are either by way of treaties or by reciprocal legislation. But, whichever system

exists, in every case in which the matter comes into the courts of the requested State they must enquire whether the

stipulations of the treaty are the requirements of the legislation, as the case may be, have been fulfilled.” [emphasis

added]

18. These reciprocating arrangements referred to by Walsh J. may arise from bi-lateral arrangements or, as is more often the

case nowadays, multi-lateral treaties. The system which exists for the purpose of this case is to be found in Part III of the

1965 Act, as amended. It reflects the Irish side of the reciprocal arrangement with the United Kingdom whereby a person

wanted for trial in one country may be the subject of an order for removal to that country for the purpose of standing trial, or

serving sentence after conviction, for criminal offences. The role of the requested State, indeed its duty, is to give effect to a

lawful request from a requesting State once it is determined that the request fulfills the criteria laid down by the relevant

legislation. Needless remark when these matters fall to be determined in court proceedings they are done so in accordance with

the principles of constitutional justice and respect for the fundamental rights of those concerned as expressly provided for in

relevant legislation, the Constitution or implied therefrom.

19. The requesting state is not a party to the proceedings. The responsibility for bringing a person named in a warrant before

the High Court clearly rests with authorities in this State. Once that is done the task of determining whether all legal

requirements for the making of an order pursuant to s. 47 are fulfilled rests with the High Court judge. That is an inherently

inquisitorial function. The High Court, as Walsh J. put it, “must enquire” as to whether that is so. In doing so the Court also

ensures that no one in this jurisdiction shall be ordered to be delivered up for the purposes of extradition unless the Court is

satisfied that the offence in question corresponds to an offence under the law of the State.

20. As O’Dalaigh C.J. observed in The State (Holmes) –v- Furlong [1967] IR 210 at 216

“The Courts function is, therefore, limited to satisfying itself that the provisions of Part III of the Act of 1965 have been

properly complied with.” [emphasis added]

21. In his judgment of the same case Walsh J. (at 223) addressed the duty of the district justice, which now applies to that of

a judge of the High Court, when considering an application under Part III of the 1965 Act and stated:

“… the duty of the district justice in exercising the jurisdiction of the District Court in these applications is, first of all, to

be satisfied as to the validity of the warrant and other documents as prescribed by the Act and, secondly, to be

satisfied that the person who has been arrested is in fact the person named or described in the warrant … The district

justice should next satisfy himself that the offence in the warrant is one in respect of which he may make an order

under the Act.”

22. It seems to me clear that proceedings of this nature cannot be viewed through the prism of the concept of adversarial

proceedings as usually viewed in proceedings inter partes. For example, all the factual matters on which the High Court judge

must be satisfied for the purpose of determining whether or not an order should be made pursuant to s. 47 could not be done

simply by means of a mere consent or admission unless such admissions are themselves evidence of a fact or the consent is

expressly authorised by statute. It is the judge himself or herself which must be satisfied.

23. In other words the Court hearing an application for extradition is put on an inquiry and the proceedings have an inquisitorial

nature. This is so even though the responsibility for bringing before the Court the necessary material or evidence necessary to

demonstrate to the Court that all factual elements required by the statute, including evidence where necessary as to foreign

law, lies with the State.

24. Such was the approach adopted by Finlay J. (as he then was) in Wyatt –v- McLoughlin [1974] IR 378 at 384 when

addressing a submission by counsel on behalf of the respondent in the case:

“He submits that equally the High Court can and should confirm an order by the district justice under s. 47 where the

specification of the corresponding offence is defective or incomplete, provided the High Court is satisfied that a

corresponding offence does exist. In so submitting, he relies in particular on the terms of s. 47 ss. 2, and its negative

approach. I am satisfied that the logic of this contention … is sound and that, notwithstanding the fact that in my view

no offence was specified in the recital contained in the district justice’s order, I must proceed to enquire as to whether

there is an offence within the law of this State corresponding with the offence recited in the warrant and that, if there

is, I must confirm this order.” [emphasis added]

25. In dismissing an appeal from the decision of Finlay J. in that case Walsh J. (at 398) adopted a similar approach on that point

when he stated

“For the reasons stated in Furlong’s case, it is necessary that either the warrant or some other document

accompanying it should set out sufficient information as these facts to enable the Courts of the State to identify the

corresponding offence, if any, in our law.”

26. Later on the same page he states

“On the contrary it is emphasised, as I think the passage makes clear, that the function of the Irish court was to

discover from the acts alleges whether there was a corresponding Irish offence and to ignore offence names found in

English Law.”

27. In that case Walsh J. also cited with approval the statement of O’Dalaigh C.J. in The State (Furlong) –v- Kelly [1971] IR 132

at 141 where the former Chief Justice state

“The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the warrant,

or one or more such ingredients, constitute an offence under the law of the State …”

28. What the ingredients of a foreign offence are is a question of fact to be determined by the High Court judge on the

evidence and material before the Court, including documents tendered pursuant to s. 55 of the Act of 1965. Once the

ingredients of the foreign offence have been determined then it is a question of law for the High Court to determine whether

there is a corresponding offence in Irish law and what that offence is. In addition to the word “determine” other key words

used in the passages which I have cited above are “identify”, “inquiry” and “discover” in relation to the task of the judge

concerned when ascertaining whether there is a corresponding offence in Irish law. Those passages underline the inquisitorial

dimension of the proceedings. To my mind that issue of law is not a question of proof in these proceedings. Of course before

any steps are taken by the State in connection with the extradition of a person the relevant State authorities must be of the

view that it is sought in respect of an offence for which there is a corresponding offence in Irish law and should assist the court

by submitting what, in its view, constitute the corresponding offence. But any view of the State is not determinative. Once the

criteria set out in s. 47(1) are satisfied it rests with the judge of the High Court to enquire and discover, as envisaged by s.

47(2), (which Finlay J. noted was expressed in the negative), whether there is a corresponding offence in Irish law. In Attorney

General –v- Dyer (Supreme Court, unreported, 16th January, 2004) Fennelly J. noted in his judgment (nem. diss.) that

“Two offences created by statute were offered by the Attorney General as candidates for the role of corresponding

offence.”

29. That case was concerned with issues as to whether the foreign offences corresponded to offences under Irish law and the

Court concluded that they did not but the manner in which the issues fell to be dealt with underscore the fact that it is

ultimately for the Court concerned to determine whether there is in Irish law a corresponding offence and what that offence is.

30. Having regard to the somewhat sui generis nature of the proceedings under the Act of 1965, as amended, and in particular

their inquisitorial dimension I am of the view that the learned High Court judge was incorrect in dismissing the application of the

Attorney General without seeking ex officio to ascertain whether regulations had been made pursuant to s. 5 of the Act and

having so ascertained, to proceed to determine whether there could be identified therein an offence under Irish law which

corresponded to the offences contained in warrants A, B and E. Regulations which could make the supply of a controlled drug

unlawful are specifically referred to in s. 5 of the Misuse of Drugs Act, 1977 and the existence of such regulation may be

determined as an objective question of law. Certainly the approach of counsel for the Attorney General was most unhelpful.

From a pragmatic point of view I suppose one could say that the learned trial judge might have required that counsel to

produce the relevant regulations. But the failure of counsel to do so cannot mean that there was a fatal failure to discharge an

onus of proof on the part of the State. For the reasons I have indicated above the ultimate task of determining whether there

is an offence under Irish law remains with the judge hearing the proceedings and he or she is put on inquiry to determine that

as a question of Irish law. It is not a question of proof. Neither do I consider that in proceedings in which the Court “must

enquire” is it necessary for the Attorney General to prove the existence of regulations the making of which has been expressly

provided for in the Act.

31. It is not in dispute that regulations referred to in s. 21(2) of the Act of 1977 were made pursuant to section 5. The issue as

to whether those regulations taken in conjunction with those sections disclose an offence which corresponds to the offences

set out in warrants A, B and E was not argued in the High Court and of course is not a matter to be determined in this Court in

first instance. Accordingly in my view the appeal should be allowed and the proceedings remitted to the High Court to have that

issue determined.