IESC 100 · Supreme Court

THE SUPREME COURT

RECORD NO. 217/2004

MURRAY C.J.

DENHAM J.

McCRACKEN J.

BETWEEN

ATTORNEY GENERAL

APPLICANT/APPELLANT

AND

MARTIN PARKE

RESPONDENT

Judgment delivered on the 6th day of December, 2004 by Denham J.

1. This is an appeal by the Attorney General from that part of the judgment of the High Court (Peart J.) delivered on the 24th day of

February, 2004 which refused to grant an order under s. 47 of the Extradition Act 1965, as amended, for the rendition of Martin

Parke, the respondent, hereinafter referred to as the respondent, in respect of three warrants, to the United Kingdom.

2. The matter came before the High Court as an application for an order under s. 47 of the Extradition Act 1965, as amended, for the

rendition of the respondent to the United Kingdom on foot of seven warrants. All warrants were dated 14th December, 2001.

3. All the warrants related to drug offences. They were described by the learned trial judge as follows:

“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 Section 4(1) of the Misuse of Drugs Act 1971. Contrary to section 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 C charges him with possession with intent to supply, and in the following terms:

“That he on the 26th day of August 1998 had in his possession a controlled drug of Class A namely 4.288 grams of powder

containing diamorphine with intent to supply it to others in contravention of Section 4(1) of the Misuse of Drugs Act 1971

contrary to Section 5(3) of the Misuse of Drugs Act 1971.”

Warrant D charges him with simple possession in the following terms:

“That he on the 26th day of August 1998 had in his possession a controlled drug of Class A namely 81 Physeptone tablets

containing methadone in contravention of Section 5(1) of the Misuse of Drugs Act 1971 contrary to Section 5(2) of the

Misuse of Drugs Act 1971.”

Warrant E charges him with supply in the following terms:

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

A namely .261 grams of powder containing diamorphine to Thomas Cullinane in contravention of Section 4(1) of the Misuse

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

Warrant F charges him with possession with intent to supply, in the following terms:

“On the 30th day of March 1999 at Park View Court, Roe Green, London NW 9, England had in his possession a controlled

drug of Class A namely 5.657 grams of powder containing diamorphine with intent to supply it to others in contravention

of Section 4(1) of the Misuse of Drugs Act 1971 contrary to Section 5(3) of the Misuse of Drugs Act 1971.”

Warrant G charges him with simple possession in the following terms:

“That he on the 30th day of March 1999 at Kingsbury Road, London NW9 had in his possession a controlled drug of Class

A namely .303 grams of powder containing diamorphine in contravention of Section 5(1) of the Misuse of Drugs Act 1971

contrary to Section 5(2) of the Misuse of Drugs Act 1971.”

4. The learned trial judge held that the onus was on the respondent to establish that he came within the exceptions. He stated:

“I should also refer to the fact that the Schedule to the Misuse of Drugs Act, 1977 itself lists the drugs which comprise

controlled drugs, for the purposes of the Act, and it is clear from perusal of that Schedule that both diamorphine and

methadone are listed in the Schedule and are therefore controlled drugs. Section 2(1) of the Act defines a controlled drug as

being one “which is either specified in the Schedule to this Act or is for the time being declared pursuant to subsection (2) of

this section to be a controlled drug for the purposes of this Act.” It is not therefore necessary that the applicant should have

produced the Regulations in question for the purpose of satisfying the court that these drugs are controlled drugs.

Again it would be for the respondent to discharge the onus of satisfying this court that diamorphine and/or methadone had been

by regulation taken out of the classification of being a controlled drug.

In relation to the charges in Warrants A, B, and E, namely the charge of supply simpliciter, as opposed to possession or

possession with intent to supply, counsel for the applicant has, as I have already stated, submitted that the corresponding

offence in this jurisdiction is that created by Section 21(2) of the 1977 Act, which 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.”

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 (See Section 5(1)

(iii) of the Act). But I am satisfied that the applicant cannot simply refer to the provisions of Section 21(2) of the Act in order

to make out correspondence in relation to the supply charges in these Warrants. 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.

I am satisfied that the respondent is properly before this court for the purpose of the application under section 47 of the 1965

Act, and that all the formalities of his arrest by Sgt Heffernan are complied with, and that he has been properly identified.

I am also satisfied that the minimum gravity requirement of the offences have been satisfied, and I am also satisfied that each

of the offences charged in Warrants C, D, F and G herein, correspond with offences in this jurisdiction, as of the date of

production of the Warrants to the Assistant Commissioner in January 2002 as submitted by the applicant.

I therefore grant the order sought in respect of those Warrants only, (but not in respect of Warrants A, B, and E), namely for

the delivery of the respondent at some convenient point of departure from the State into the custody of a member of the

Metropolitan Police, London, being the police force for the place in which the Warrants have been issued, for conveyance to

that place, and I remand him in custody until he is so delivered.”

5. On this appeal there is a net issue in relation to three warrants. The High Court held that the applicant could not simply refer to

the provisions of s. 21(2) of the Misuse of Drugs Act, 1977 and make out correspondence in relation to the supply charges in the

warrants. The High Court stated that:

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

regulations have been made and are still in force, and that this had not been done”.

Thus the issue raises the matter of the relevant Irish law and the duty of counsel for the applicant to prove and provide, and the

duty of the learned trial judge to inquire as to, the Irish law relevant to the offences.

6. No issue arises on the facts as set out in the warrants from the United Kingdom. These facts are clearly stated and it is on them

that an Irish offence falls to be identified, or not. The issue before the court is the identification of the Irish Law relevant to the facts

so as to determine if there is correspondence.

7. In the High Court there was, correctly, reference to s. 5 and s. 21(2) of the Misuse of Drugs Act, 1977. These Sections provide:

“Section 5(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 specified -

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

Section 21(2) Any person who, whether by act or omission, contravenes or fails to comply with regulations under this Act shall

be guilty of an offence.”

No regulations were opened or handed to the learned trial judge nor was the making of any regulations formally proved. The trial judge

himself stated that ‘the Minister may or may not have made such regulations.’ On this appeal counsel for the applicant referred this

court to the Misuse of Drugs Regulations, 1988, (S.I. No. 328 1988), and in particular to regulation 4(1) (b).

8. Infact the core of this case is not the issue of “correspondence” but rather the query as to what is the relevant Irish law. The

core of the case is the failure by the Attorney General to prove the relevant regulations in the High Court. Ms. Sarah Moorehead,

S.C., counsel for the applicant, submitted that it is for this court to determine if there is an Irish offence on the facts. Counsel

accepted that the relevant regulations were not produced to the High Court. Counsel submitted that the role of the learned High

Court Judge under the Extradition Act 1965, as amended, is to inquire and to be satisfied that there is an Irish offence. She drew a

distinction between an extradition inquiry and a criminal trial. She also submitted that the applicant should have been allowed to

prove the regulations in the High Court once the issue was raised.

Mr. Cormac Quinn, B.L., counsel for the respondent, submitted that there was an onus on the applicant. The High Court must be

satisfied by the applicant that there is an Irish offence. The regulations were not put before the High Court and at no time did

Counsel for the applicant apply to put the regulations before the learned trial judge. He accepted that a trial judge could have taken

judicial notice of the regulations if they were well embedded and if the judge was familiar with the regulations. However, he submitted

that prosecutions for the supply simpliciter of a controlled drug are rare and that this part of the regulations is not embedded in Irish

Law and the court could not take judicial notice of the regulations.

9. Decision

9.1 Role of the applicant

It is the role of the applicant to present the documents in the case to the court, together with the relevant Irish law, to enable the

learned High Court Judge determine the matters pursuant to the Extradition Acts 1965, as amended. In this case, while the

documentation was presented to the court, all the relevant Irish Law was not. The offence in issue is made up of primary legislation,

which was brought to the attention of the High Court, and secondary legislation, namely regulations, which were not. Even when the

issue was raised, counsel for the applicant did not inform the court of the regulations or seek to do so. This is not a prosecution for a

criminal offence in Ireland, it is an inquiry under the Extradition Act 1965, as amended. In presenting the documentation and the law

to meet the criteria set out in the Extradition Act 1965, as amended, counsel for the applicant erred in not providing the court with

the relevant regulations. The applicant also erred in not assisting the court once the issue of the regulations arose, as no application

was made to put the regulations before the court.

9.2 Role of the Judge

The role of a Judge under the Extradition Act 1965 as amended, is to inquire as to whether the criteria set out in the said Act has

been met. This means that there has to be a scrutiny of the documents to determine whether they meet the requirements of the Act

and then an inquiry as to what Irish law is applicable. There are several possible legal issues, one such is correspondence. No issue

arose in this case on the facts or acts as set out on the three warrants from the United Kingdom. The issue raised is not a technical

matter as to “correspondence”. The issue is the relevant Irish Law and its proof before the High Court. It is thus a net technical point

which has been raised, the lack of proof of the regulations before the High Court.

I am satisfied that the issue of whether or not there is a corresponding Irish offence is an issue which may be re-examined by an

appellate court, which may come to a different decision as to the precise corresponding offence than the trial court. An appellate

court has a discretion to consider the relevant corresponding offence as it is a matter of law.

However, in this case the issue is not of correspondence but that the Irish law was not properly before the High Court, and that the

High Court did not consider the regulations.

The role of the trial judge in an application for an order of extradition is unique. The hearing is not a criminal trial, in the adversarial

sense where the State must prove the guilt of the accused beyond all reasonable doubt. Nor is it a civil case between two parties. It

is a unique procedure where the court holds an inquiry as to whether the criteria set out in the Extradition Act 1965, as amended, has

been met. Further, this law has been established against the back drop that the State has entered into an agreement with the

requesting State that there be extradition arrangements between the two States. Thus these cases are founded on the comity of

nations and the comity of courts.

I am satisfied that there is a duty on a trial judge in an extradition case to make such inquiries of counsel as are relevant. This

includes an inquiry as to the Irish Law which may afford a corresponding offence. Once the issue of the regulations arose in the High

Court it was required of the applicant to place the regulations before the trial judge. Also, as this is an inquiry, not a criminal

prosecution, once the issue arose as to whether or not there were regulations, the trial judge should have inquired as to whether in

fact there was such a regulation. This is so especially in an area where it is well known that heroin is a controlled drug, as indeed the

learned trial judge had previously stated, and that it is the subject of many prosecutions in the Irish Courts.

9.3 Next Step

This court was informed that relevant regulations exist. However, it is accepted by counsel for the applicant that the regulations

were not put before the High Court. I have considered carefully whether this court should now consider the relevant Irish Law

proffered. This may be the correct route in many cases where the Irish corresponding offence in an extradition case is in issue.

However, in all the circumstances of this case, including the fact that there was no consideration of the regulations by the High

Court, I would remit the matter to the High Court. In the High Court, counsel for the applicant should present all the relevant Irish

Law as to the corresponding offence to the learned trial judge and make it available to the trial judge for his inquiry.

Consequently I would allow the appeal and remit the matter to the next extradition list in the High Court, to enable the High Court

consider all the relevant Irish Law and to determine the issue of correspondence in this case.