Supreme Court allows appeal on rule of specialty, finding extradition for uncharged offenses violates treaty.

THE SUPREME COURT

NO. 06/2004

DENHAM J.

HARDIMAN J.

McCRACKEN J.

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857

IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 to 1991

IN THE MATTER OF THE EXTRADITION ACTS 1965 to 2001

BETWEEN/

ATTORNEY GENERAL

AND

ROBERT BURNS

APPELLANT

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

1. This is an appeal by Robert Burns, the appellant, hereinafter referred to as the appellant, from the order and judgment of the High

Court (O’Caoimh J.)delivered on 10th day of December, 2003.

2. The appellant is sought by the authorities of the United States of America so that he may be prosecuted for health care fraud,

money-laundering and conspiracy to commit health care fraud. The District Court made an order under s. 29(1) of the Extradition Act,

1965, which was confirmed by the High Court

3. Case Stated

3.1 The matter came before the High Court by way of case stated from a decision of the District Court (Judge Conal Gibbons) made

on the 25th June 2002, on the application in writing of the appellant, he being dissatisfied with the determination of the District Court

Judge as being erroneous on point of law.

3.2 The case stated recited the facts, as follows. The matter came before Dublin Metropolitan District Court on the 10th June 2002

and on the following days on an application by the Attorney General for the extradition of the appellant to the United States of

America pursuant to the provisions of the Extraditions Act 1965, as amended. The application was on foot of a request from the

Government of the United States of America dated 18th January 2002, together with supporting documentation furnished to the

District Court, and a further letter from the United States Government dated the 29th January 2002. The extradition of the appellant

was sought in respect of counts number 1 to 14 and counts number 26, 28 and 29 of the indictment, which indictment formed part of

the supporting documentation.

3.3 The case stated set out that the appellant was arrested by Detective Sergeant Heffernan of the Extradition Section, Garda

Headquarters, on the 14th January 2002 at Howth Summit, Howth, in the County of Dublin, on foot of a provisional warrant of arrest

issued by the District Court on the 12th January 2002, pursuant to the provisions of the Extradition Act, 1965. The appellant was

taken initially to Howth Garda Station where he gave his name and address and ultimately was taken to the Bridewell Garda Station

and later to the District Court which remanded him in custody from time to time.

3.4 The case stated set out the evidence adduced at the hearing. This included the evidence of Mr. Robert Adams, a trial lawyer in

the United States Department of Justice Criminal Division, Fraud Section. He gave evidence to the District Court that all of the

offences on which the appellant’s extradition was sought had occurred in the United States of America, that they had no political

connotations, that they were not revenue offences, and that they did not attract the death penalty. He said that no charges were

pending against the appellant in any other country in respect of these offences. He indicated that the appellant had a United States

passport and appeared to have been born in the United States of America. He conceded that he had never seen the appellant before.

He confirmed that Mr. Ashcroft and Mr. Powell, who were named in the supporting documents, were cabinet level officers appointed

by the President of the United States of America and as such were equivalent to a Minister in the Irish Government. Mr. Adams gave

evidence on cross examination to which I shall return. Mr. Mark Finkelbinder also gave evidence of identification of the appellant.

Identification is not an issue in this appeal.

3.5 Submissions were made, by counsel for the appellant and the Attorney General, to the District Court and these were set out in

detail in the case stated.

3.6 The District Court Judge stated that he being of the opinion that:

(a) The offences upon which the appellant’s extradition was being sought met the test of dual criminality as set out in the case

of Wyatt v. McLoughlin [1974] IR 378 and that they were offences on the day on which the extradition request was made,

(b) all the documents required by Section 25 of the Extradition Act 1965 had been furnished,

(c) Statutory Instrument 474 of 2000 applied Part II of the Extradition Act 1965 to the United States of America,

(d) I was satisfied of the documents of authenticity,

(e) the appellant had been clearly identified as the person to whom the indictment referred,

(f) I was satisfied on the evidence of Mr. Adams that the offences were not revenue offences,

(g) I was entitled to proceed on the basis of the assumption that the requesting state was acting in good faith and the fugitive

would receive a fair trial in the courts of the requesting State, see R v. Governor of Pentonville Prison, ex-parte Lee [1993] 1

WLR 1294 at p.1300,

(h) that it is appropriate for the Court to state that under Section 26 of the Act, the Minister has a function in the process in

that he might draw the attention of the requesting State to the issue of the defendant being exposed to greater penalty in the

requested State than that applicable in this jurisdiction or indeed other matters as referred to herein as mentioned in the

decision of Goff L.J. in the case of Nielsen [1984] 79 CR. APP R. 1,

(i) the questions raised by the appellant concerning the application of the rule of specialty by the Courts of the United State of

America did not go far enough and I was satisfied that the rule of specialty applies in the instant case and that the appellant’s

rights in that regard are enshrined in the laws of the United State of America and he could apply to Court to remedy any breach

of his rights in this regard,

(j) the extradition of the appellant was properly requested in accordance with Section 29 of the Extradition Act 1965, Part II of

the said Act applies in relation to the requesting country (United State of America), the extradition of the appellant was not

prohibited and the relevant documents required to support a request for extradition under Section 25 of the Extradition Act

1965 had been produced,

(k) on this basis the District Court made an order as sought under Section 29 of the Act 1965.

The District Court then stated:

“The opinion of the High Court is respectfully sought as to whether upon the foregoing facts, I was correct in holding against

the appellant on each of the eleven submissions made by him and whether my determination was correct in point of law”.

4. The High Court

The case stated was heard by the High Court and judgment delivered on 10th December, 2003. The High Court ordered that the judge

of the District Court was correct in point of law in holding against the appellant on each of the eleven submissions made on his behalf.

5. Grounds of Appeal

The appellant has appealed against the findings and determination of the High Court. The grounds of appeal were as follows:-

1. The learned High Court Judge erred in law and/or in his discretion in proceeding to hear the appeal by way of case stated

when the appellant was not legally represented.

2. The learned Judge erred in law in the holding that the District Court was entitled to hold that there was evidence upon which

it could be satisfied that the offences for which extradition was sought were offences within the United State of America on the

18th January 2002.

3. The learned Judge erred in law in holding that the District Court was entitled to hold that such offences were not revenue

offences.

4. The learned Judge erred in law in holding that the District Court was entitled to hold that the limitation period for the

conspiracy charges ran from the date of the last alleged act, and in holding that the District Court was entitled to hold that the

appellant had not become immune from prosecution.

5. The learned Judge erred in law in holding that the District Court was entitled to hold that the United States Courts comply

with the rule of specialty.

6. The learned Judge erred in law in holding that the District Court was entitled to hold that the offences the subject of the

extradition application were corresponding offences with any offences in this state.

7. The learned Judge erred in law in holding that the District Court was correct to hold that the Statutory Instrument 474/2000

applied Part II of the Extradition Act to the United States.

8. Such further on other grounds as may by leave of this Court be argued.

6. New Grounds of Appeal

At the commencement of the appeal Mr. Michael Forde, S.C., counsel for the appellant, sought to adduce new grounds of appeal. I

am satisfied that new grounds of appeal should not be considered by this Court for two reasons. First, this is an appeal on a case

stated from the District Court. The facts were found by the District Court. On these facts, at the request of the appellant, the

District Court has sought an opinion on matters of law. This form of appeal proceeds on the terms set by the District Court. Secondly,

there is a general jurisprudence, from which there are a few exceptions, that new issues will not be argued on an appeal. Issues are

required to be argued first before and decided upon by a trial judge. It is then for an appellate court to consider the facts and law on

appeal. There is a discretion whereby an appellate court may consider new issues, in special circumstances. However, as this case is

not an appeal in the usual form from the High Court, these proceedings are by way of case stated pursuant to the provisions of the

Summary Jurisdiction Act, 1961, as amended and extended by s.51 of the Courts (Supplemental Provisions) Act, 1961, this

jurisprudence does not apply. This form of appeal was chosen by the appellant, at a time when he had legal representation. The

issues on appeal are of law, not fact. The issues of law were determined by the District Court. In all the circumstances of this case, I

am satisfied that the court does not have jurisdiction to consider additional issues. Consequently, this appeal should be heard and

determined within the terms of the case stated by the District Court.

7. Revenue Offences

The appellant raised seven issues of law on the notice of appeal to this Court. However, at the hearing before this Court counsel

stated that the ground relating to ‘Revenue Offences’ was not being pursued

8. Legal Representation

As to the first ground, that the High Court erred in law and/or in its discretion in proceeding to hear the appeal by way of case stated

when the appellant was not legally represented, I would confirm the determination of the High Court. The appellant had had a series

of legal representatives. The High Court held:

“While the appellant appeared before this court in circumstances where he was unrepresented this arose due to the fact that

he has discharged three solicitors since this matter was before the District Court. I am satisfied that these circumstances arise

of the appellant’s own making and the case before this Court was adjourned at a stage when it was due for hearing to enable

him to instruct his third firm of solicitors. At the stage the matter came before this Court the appellant informed this Court in

the presence of his solicitor that he had discharged him of his services. In those circumstances I was satisfied that this Court

should not tolerate a situation where the case was unduly prolonged by the actions of the appellant himself.”

I would not intervene in the exercise of the discretion, and the decision, of the High Court, I would dismiss this ground of appeal.

9. Specialty

9.1 The appellant raised the issue of specialty. The case stated set out the evidence adduced at the hearing in the District Court.

This included the following:

“(ii) Mr. Adams identified the United States Federal Sentencing Guidelines shown to him by Mr. McGuinness. He agreed that the

Federal Sentencing Guidelines bind federal judges in sentencing defendants. He also agreed that the said Guidelines permit

judges to take into account uncharged conduct when sentencing defendants so that a defendant might be punished for

offences with which he was never charged. He stated that the sentencing guidelines provided for a base offence level and that

the Court then examined the conduct for characteristics of the offence which could move the level upwards thereby attracting

a greater sentence. However the sentence could not exceed the statutory maximum for the offence. He agreed that the

“relevant conduct” to be considered by the court under IA of the sentencing guidelines included unindicted bad conduct. He

further agreed that matters which must be taken into consideration by a sentencing court under IB of the sentencing guidelines

included similar fact offences and loss attributable to unindicted conduct. He agreed that although the Attorney General was

not seeking an order for the appellant’s extradition on counts 16 to 26 inclusive of the indictment, the conduct charged in those

counts could in fact be taken into consideration by a federal court sentencing a defendant in a criminal case. Mr. Adams did not

know if the rule of specialty would apply to a case in which the defendant had been extradited from another jurisdiction so as

to prevent this occurring. He was not familiar with the manner in which the Federal Sentencing Guidelines are applied in cases

such as the present. A copy of the decision of the United States Federal Court of Appeal for the Circuit in US v Andonian was

shown to Mr. Adams by Mr. McGuinness. Mr. Adams stated that he was not familiar with the case but it appeared to relate to a

number of men from Uruguay who were extradited to the United States from Uruguay, a county whose extradition treaty with

the United States apparently contained a specialty clause. Despite this however, 12 new counts were added to the indictment

after the men arrived in the United States and this was upheld by the Federal Court of Appeals for the Circuit. Mr. Adams was

also shown a copy of the decision of the Court of Appeals for the 9th Circuit in the case of US v Lazarevich which involved an

extradition from the Netherlands to the United States. Again the extradition treaty between those two countries appeared to

contain a specialty clause similar to that contained in the treaty between Ireland and the United States. Mr. Adams agreed that

the case appeared to permit the federal sentencing judge to take into account conduct and in particular abduction in respect of

which Mr. Lazarevich had not been extradited and his sentence was thereby increased accordingly. A copy of the decision of

the US federal Court of Appeal for the 5th Circuit in US v Labaron was also shown to Mr. Adams. He agreed that it appeared to

relate to that defendant’s extradition from Mexico to the United States in respect of a count of conspiracy to commit murder

and one other count. It would appear that the Mexico/United States extradition treaty contained a specialty clause but this did

not prevent Mr. Labaron being tried for a second conspiracy charge in respect of which he had not been extradited and this

was upheld by the 5th Circuit Court of Appeals. Mr. Adams pointed out that none of the above cases were from the 4th Circuit

Court of Appeals which was the court governing West Virginia and he did not know what the law in West Virginia was in relation

to the application of the rule of specialty in this regard. He admitted that the only court which could overturn the above

decisions was the United States Supreme Court and he did not know if any of the above cases had been appealed to the

Supreme Court. He noted however that in the Andonian case a cert. was denied which meant that the Supreme Court had

declined to hear the case, a fact to which no significance could be attached.

Upon being directed by Mr.McGuinness to the various counts in the indictment he agreed that in many places the expression

“including but not limited to” was used. Examples of where this occurred included page 23 “Patients including but not limited to

patients JH, AW, PW and VL. He also agreed that at the appellant’s trial, other claims concerning other patients would be

introduced in evidence.”

9.2 The District Court Judge dealt with the issue of specialty by holding that the questions raised by the appellant did not go far

enough and he was satisfied that the rule of specialty applied in the case and that the appellant’s rights in this regard are enshrined

in the laws of the U.S.A. and that he could apply to court to remedy any breach of his rights in this regard. However, the District

Court was of the opinion:-

“(h) That it is appropriate for to [sic] court to State that under section 26 of the Act, the Minister has a function in the

process in that he might draw the attention of the Requesting State to the issue of the Defendant being exposed to greater

penalty in the requested State than that applicable in this jurisdiction or indeed other matters as referred to herein as

mentioned in the decision of Goff L.J. in the case known as Nielsen [1984] 79 Cr App R 1”.

It appears that the reference to s.26 is a misprint, as s.26 relates to the warrant of arrest procedure. It is more probable that the

District Court was referring to s.20, which relates to the rule of specialty.

9.3 Ambit of Appeal

The parameters of this appeal are governed by the terms of the case stated. The applicant chose this form of appeal over other

possible forms of appeal at a time when he was legally represented. The appeal is confined to the statutory scheme provided for this

type of appeal. There are other forms of appeal available which are usually more suited to the types of issues which arise in an appeal

on an extradition application.

This is an appeal on a point of law. Section 2 of the Summary Jurisdiction Act, 1857, as amended by s.51 (1) of the Courts

(Supplemental Provisions) Act 1961, provides:

“After the hearing and determination by a Justice of any proceedings howsoever heard and determined (other than proceedings

relating to an indictable offence which was not dealt with summarily by the Court), either party to the proceeding before the

said Justice or Justices may if dissatisfied with the said determination as being erroneous in point of law, apply in writing within

fourteen days after the same to the said Justice or Justices, to state and sign a case setting forth the facts and the grounds

of such determination, for the opinion thereon of the … High Court…;and such party, hereinafter called the appellant, shall

within three days after receiving such case, transmit the same to the Court … first giving notice in writing of such appeal, with

a copy of the case so stated and signed, to the other party to the proceeding … hereinafter called the respondent.”

This form of appeal requires that the case be stated by the District Court. The form of the case stated was described by Murphy L.J.

in Emerson v. Hearty [1946] NI 35 at pp 36 -37 as follows:-

“The case should be stated in consecutively numbered paragraphs, each paragraph being confined, as far as possible, to a

separate portion of subject matter. After the paragraphs setting out the facts of the case there should follow separate

paragraphs setting out the contentions of the parties and the findings of the Judge.

The case should set out clearly the Judge’s findings of fact, and should also set out any inferences or conclusions of fact which

he drew from those findings … What is required in the case stated is a finding by the Judge of the facts, and not a recital of the

evidence. Except for the purpose of elucidating the findings of fact it will rarely be necessary to set out any evidence in the

case stated save in the one type of case where the question of law intended to be submitted is whether there was evidence

before the Judge which would justify him in deciding as he did.

The point of law upon which this Court’s decision is sought should of course be set out clearly in the case. But we think the

Judge is certainly entitled to expect the party applying for the case stated to indicate the precise point of law upon which he

wishes to have the decision of the appellate Court. It would be convenient practice that this should ordinarily be done in the

written application for the case stated.”

This was applied in Mitchelstown Co-Operative Agricultural Society Ltd v Commissioner for Valuation [1989] IR 210 by Blayney J. I

also adopt and apply this statement of the law.

In this case stated the judge set out the evidence adduced at the hearing. He did not expressly find the facts. This is unfortunate.

Consequently the findings of fact are to be inferred from the evidence adduced. This is not a preferred way to state a case.

However, in this case where there was no conflicting evidence it is an approach which, while not that preferred, is open to the Court.

Foreign Law

This Court is bound by the facts found by the District Court as set out in the case stated. Because of the format used by the District

Court this is not as clear as it might be. This is an added complication to the case.

The issue of foreign law is a fact to be found by the District Court. The District Court set out the evidence adduced, as stated

previously in this judgement. There was evidence before the District Court Judge from which he could find facts as to the foreign law.

The District Court did make a decision on the issue of specialty, grounded on the facts stated. The evidence adduced included that in

sentencing the appellant the Courts of the United States of America could take into account uncharged and unindicted conduct, and

that although the Attorney General was not seeking an order for the appellant’s extradition on Counts 16-26 of the indictment, the

conduct charged on these counts could be taken into consideration by a federal court sentencing the appellant. Mr. Adams did not

know if the rule of specialty would apply to a case in which the appellant had been extradited from another jurisdiction so as to

prevent this occurring. He was not familiar with the manner in which the federal sentencing guidelines are applied in cases such as

this. However, the sentence could not exceed the statutory maximum for the offence.

There were no conflicting experts giving evidence on the foreign law. The evidence adduced was the evidence given by Mr. Robert

Adams. Foreign law is a fact to be determined by the District Court. In this case the District Court set out the evidence – of Mr.

Adams – and I infer that it was accepted and thus the factual evidence in the case.

Documents

The case stated is a form of appeal where the facts found in the District Court should be set out clearly in the case stated, followed

by the determination of law. This should then be followed by the question or questions of law to be decided on the appeal.

As foreign law is a matter of fact it is for the District Court to determine. While Counsel very helpfully made available the United

States Federal Sentencing Guidelines and case law these are not in the same position as the issue of Irish Law. I am not in a position

to consider the law of the United States as the fact of that law has been determined by the District Court. I must take the facts as

determined.

This appeal is based on the findings of fact of the District Court. Legal determinations must be made on those findings of fact.

Indeed, in posing the case stated on the point of law the District Judge said, “whether upon the foregoing facts, I was correct

…………. in law.”

Irish Law on Specialty

The Irish law on specialty is to be found in s. 20 of the Extradition Act, 1965.

It provides:

“20 – (1) Extradition shall not be granted unless provision is made by the law of the requesting country or by the extradition

agreement –

(a) That the person claimed shall not be proceeded against, sentenced or detained with a view to the carrying out of a

sentence or detention order, or otherwise restricted in his personal freedom, for any offence committed prior to his

surrender other than that for which his extradition is requested, except in the following cases –

(i) with the consent of the Minister, or

(ii) where that person, having had an opportunity to leave the territory of that country, has not done so within forty-five

days of his final discharge in respect of the offence for which he was extradited or has returned to the territory of that

country after leaving it, and

(b) That where the description of the offence charged in the requesting county is altered in the course of proceedings,

he shall only be proceeded against or sentenced in so far as the offence under its new description is shown by its

constituent elements to be an offence which would allow extradition.

(2) Notwithstanding anything in subsection (1), the fact that the law of the requesting country permits the taking of any

measures necessary to remove the person form its territory or any measures necessary under its law, including proceedings by

default, to prevent any legal effects of lapse of time shall not of itself prevent his extradition.

(3) The consent for the Minister shall not be given unless a request for consent is submitted by the requesting country,

supported by the documents mentioned in section 25 and a legal record of any statement made by the extradited person in

respect of the offence concerned.

(4) The consent of the minister shall be given if the offence for which it is requested is itself one for which there is an obligation

to grant extradition.”

The Treaty on Extradition between Ireland and the United States of America (13 July 1983) provides in Article XI:

“Rule of Speciality

1. A person extradited under this Treaty shall not be proceeded against, sentenced, punished, detained or otherwise restricted

in his or her personal freedom in the Requesting State for an offence other than that for which extradition has been granted or

be extradited by that State to a third State, unless:

(a) the person has left the Requesting State after extradition and has voluntarily returned to it;

(b) the person, having had an opportunity to leave the Requesting State, has not done so within forty-five days of final

discharge in respect of the offence for which that person was extradited; or

(c) the Requested State has consented.

2. Where the description of the offence charged in the Requesting State is altered in the course of proceedings, the person

extradited shall not be proceeded against, sentenced, punished, detained or otherwise restricted in his or her personal freedom

except insofar as the offence under its description is composed of the same constituent elements as the offence for which

extradition was granted.

3. Unless the law of the Requesting State otherwise provide, the person extradited may be proceeded against, sentenced,

punished, detained or otherwise restricted in his or her personal freedom for an offence for which that person could be

convicted under the law of that State, upon trial for the offence for which extradition was granted.

4. These stipulations shall not apply to offences committed after the extradition.

The Extradition Act, 1965 (application of Part II) Order 2000 (S.I. No. 474 of 2000) recites:

‘and whereas by the Treaty on Extradition between the State and the United States of America signed at Washington on the

13th day of July, 1983… an arrangement was made with the United States of America for the surrender of persons [for]

punishment for an offence specified in Article 11 thereof …Part II of the Act of 1965 shall apply …

Decision

This appeal format restricted the ambit of the appeal to the terms of the case stated. This restriction has an effect on the extent of

the review by this Court of the law of the United States of America. As the law of the United States is a foreign law it is a fact found

by the trial judge – a determination of the District Judge. As there was no conflicting evidence – the District Court set out the

evidence adduced– it is inferred to be the factual basis and implied determination on fact of the District Judge. This is not the

optimum method of stating a case. I have taken the view that the facts were determined by implication by the District Judge and on

those facts he determined the law.

It is an important consideration that there was no conflicting evidence. The evidential basis that is relevant to this point is the

evidence of Mr. Adams and no contrary evidence was called. It may well be that such factual evidence may not recur.

It may well be that the findings of fact in this case on the law of the United States of America are not as complete as they might be.

It may well be that there are other matters of fact on the law of the United States of America that are relevant and which were not

brought to the attention of the District Court. However, this case falls to be decided on the facts before it, including the

determination of the fact of the foreign law, the law of the United States of America.

On the facts the District Court determined that the appellant could be punished for matters other than those for which he was

extradited to the United States, this included counts on the indictment for which he was not being extradited. While Mr. Adams gave

evidence that the sentence given, even taking these matters into account, would not exceed the maximum sentence for the crime for

which he was extradited, it is clear that the appellant may suffer a penalty for offences for which he was not extradited.

The District Court was concerned about this matter but felt there would be fair procedures in the United States. In addition the

District Court specifically referred to a power of the Irish Minister for Justice to draw to the attention of the United States of America

the issue of the appellant being exposed to a greater penalty in the United States of America amongst other matters.

In this reference of the District Judge I am satisfied that the District Court erred. It is a matter for the courts to determine whether

the rule of specialty will be applied on the facts found before the District Court.

I am not satisfied on the facts adduced in the District Court that the rule of specialty will apply to the appellant. It is a contravention

of the rule for him to be subject to a penalty for an offence other than that for which he is extradited. While this Court is bound by

the findings of fact of the District Court on the law of the United States of America and may not itself, nor indeed is it competent to

determine, the law of the United States of America, these findings may not be determinative of another case.

The Treaty on Extradition between Ireland and the United State of America specifically excludes extradition for a person to be

‘sentenced, punished, detained or otherwise restricted in his or her personal freedom’ in the United States of America for an offence

other than that for which extradition has been granted. Thus the decision in this case is specific to and based on the facts of this

case as found in the District Court and may not be of precedential value in other cases.

I would allow this appeal on the point of the law of specialty, based on the facts as stated in the case stated by the District Court. I

would answer the question in the case stated in the negative, on the issue of speciality.