Supreme Court dismisses appeal where foreign conspiracy to defraud corresponds to domestic common law offence despite means not being criminal.

THE SUPREME COURT

Appeal No. 456/2005

Kearns J.

Macken J.

Finnegan J.

IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACT 1965 AS AMENDED

BETWEEN

SHANE EGAN

PLAINTIFF/APPELLANT

AND

PATRICK O’TOOLE

DEFENDANT/RESPONDENT

Judgment of Mr Justice Finnegan delivered on the 15th day of November 2007

On 10th December 1999 a warrant was issued by the Magistrates Court in Plymouth for the arrest of the appellant. The warrant

states the offence alleged against the appellant in the following terms:-

“That you between the 18th day of December 1996 and 22nd day of January 1999, within the jurisdiction of the Central

Criminal Court for England and Wales, conspired with Desmond Henry Geurins dishonestly to obtain money transfers from

the Department of Education and Employment by deception, namely by falsely representing that certain organisations

would provide training for service industries contrary to section 1(1) of the Criminal Law Act 1977.

The warrant was duly endorsed pursuant to section 43 of the Extradition Act 1965 on 11th July 2000 and the appellant was arrested

on foot of the same on 21st December 2000. On 30th July 2001 the District Court made an order pursuant to section 47 of the

Extradition Act 1965 for the delivery of the appellant to the authorities of England and Wales. On the same day the appellant issued

proceedings pursuant to the Extradition Act 1965 section 50 as amended by the Extradition (European Convention on the Suppression

of Terrorism) Act 1987 section 9 and the Extradition (Amendment) Act 1987 section 2. The relevant provisions of section 50 as

amended are as follows –

“50(1) A person arrested under this part shall be released if the High Court or the Minister so directs in accordance with

this section

(2) A direction under this section may be given by the High Court where the court is of opinion that –

(bbb) by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction

of the person named or described therein of that offence and other exceptional circumstances, it would, having

regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47, or

(c) 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”.

In the High Court the appellant sought a direction firstly under section 50(2)(bbb) on grounds of delay and secondly under section

50(2)(c) on grounds that the offence specified in the warrant does not correspond with any offence under the law of the State. The

learned High Court judge refused the appellant the relief which he sought on each of the said grounds and against that refusal the

appellant appeals to this court. I propose dealing with each of the grounds in turn.

1. Section 50(2)(bbb)

The chronology of events disclosed on the affidavits filed in this matter is as follows:-

18th December 1996 to 22nd January 1999 Offences alleged to have been committed

1998 Complaint

January 1999 investigation commenced

21st January 1999 appellant invited to meeting with the Department of Education and Employment but did not attend

28th October 1999 extradition proceedings initiated

10th December 1999 warrant issued for the arrest of the appellant by Plymouth Magistrates Court

17th December 1999 warrant received by Gardaí

8th June 2000 warrant approved by Attorney General

11th July 2000 warrant endorsed

19th October 2000 appellant working outside Ireland

November 2000 to December 2000 appellant working in Luxembourg

December 2000 appellant returned to Ireland

21st December 2000 appellant arrested.

It was accepted by the parties that the relevant period to be considered on this issue is from the earliest date of commission of the

offence, December 1996, up to the date of issue of the special summons the 30th July 2001.

In Kwok Ming Wan v. Conroy [1998] 3 I.R. 527 at 553 Hamilton C.J. approved of the following passage from the speech of Diplock LJ in

Kakis v. Republic of Cyprus (1978) 1 W.L.R. 779 at 783:-

“Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by

fleeing the country, concealing his whereabouts or of avoiding arrest cannot, in my view, be relied upon as a ground for

holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his

defence in consequence of the delay due to such causes are of his own choice and making. Save in most exceptional

circumstances it would be neither unjust nor oppressive that he should be required to accept them”.

The appellant here certainly from the 19th October 2000 to the date of his arrest was aware that he was been sought by the

authorities in England and Wales and resided in Luxembourg and, should it have been necessary, I would have discounted this period

in calculating the relevant passage of time.

The terms of section 50(2)(bbb) make it clear that there are three factors to be considered by the trial judge in forming an opinion as

to whether it would be unjust oppressive or invidious to deliver up a person arrested –

(1) lapse of time

(2) other exceptional circumstances

(3) all the circumstances of the case

In considering the passage of time in this case it is appropriate to have regard to the nature of the offence which it is alleged the

appellant committed – a conspiracy between the dates 18th December 1996 and 22nd January 1999. The offence by its nature is one

committed in secret and its commission will not in many cases be discovered for some time. Further the representations here related

to future conduct so that if as alleged they were fraudulent the fraud would not be discovered for some time after the making of the

representations. Complaint was made in 1998 and the investigation commenced promptly in January 1999. On 21st January 1999 the

appellant and the person with whom he is alleged to have conspired was invited to a meeting on 21st January 1999 and immediately

following that meeting that person was arrested. On 28th October 1999 extradition procedures were initiated and a warrant issued for

the appellant’s arrest on 10th December 1999 that warrant being received in this jurisdiction on 17th December 1999. The Attorney

General’s approval was obtained on 8th June 2000 and the warrant endorsed on 11th July 2000. I am not satisfied on these facts that

there was either complainant or prosecutorial delay. Lapse of time between 19th October 2000 and the appellant’s arrest was due to

the appellant’s absence abroad. I am not satisfied that the lapse of time in this case represents such delay as would render the

appellant’s return unjust, oppressive or invidious. In the circumstances of this case it is not necessary to have regard to the lapse of

time as the appellant in the affidavits filed in this matter has not disclosed any exceptional circumstances which could make his return

at the 30th July 2001 unjust, oppressive or invidious in the sense required by the authorities on s. 50(2)(bbb).

In these circumstances the appellant has failed to satisfy me that he is entitled to the direction which he seeks under section 50 of

the Act of 1965 on this ground.

2. Section 50(2)(c)

The appellant submits that the offence specified in the warrant does not correspond with any offence under the law of the State.

The learned trial judge held that the offence specified in the warrant corresponds with the common law offence of conspiracy to

defraud.

The Extradition Act 1965 section 42(3) as inserted by the Extradition (European Union Conventions) Act 2001 section 26 provides as

follows:-

“42(3) 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 constitute an offence under the law of the State on the day on which it was committed or alleged to have

been committed.”

The offence alleged in the warrant would, of course, have corresponded with an offence under the Criminal Justice (Theft and Fraud

Offences) Act 2001 had that Act been in force on either of the dates relevant for the purposes of section 42(3).

In Myles v. Assistant Commissioner of An Garda Síochána [1999] 4 I.R. 294 the applicant’s extradition to England was sought on a

charge of conspiracy to defraud. On behalf of the applicant it was contended that the offence did not correspond with any offence

known to Irish law or, if it was, that the offence had not been carried over under the Constitution. The applicant failed on both

contentions. Geoghegan J. adopted the definition of conspiracy to defraud from Scott v. Metropolitan Police Commissioner [1975]

A.C. 819 –

“An agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be

or might be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to

constitute the offence of conspiracy to defraud”.

Again he approved of the decision in O’Sullivan v. Conroy (unreported, High Court, Barr J., 31st July, 1997) where it was held that the

offence of conspiracy to defraud is part of the common law in Ireland as it is in England. The decision in Myles v. Sreenan was

approved by the Supreme Court in Attorney General v. Oldridge [2000] 4 I.R. 593.

The approach to be applied in relation to the issue of correspondence as set out by Henchy J. in Hanlon v. Fleming [1981] I.R. 489 at

p. 495 is as follows:-

“The third point raises the question whether the specified offence has the required correspondence with an offence under

the law of this State. The relevant decisions of this court such as the State (Furlong) v. Kelly [1971] I.R. 132, Wyatt v.

McLoughlin [1974] I.R. 378 and Wilson v. Sheehan [1979] I.R. 423 show that it is a question of looking at the factual

components of the offence specified in the warrant, regardless of the name given to it, and seeing if those factual

components in their entirety or their near entirety would, constitute an offence which if committed in this State could be

said to be a corresponding offence of the required gravity”.

The factual components of the offence alleged against the appellant as they appear in the warrant are as follows:-

1. a conspiracy

2. to obtain dishonestly

3. by deception namely by falsely representing.

The ingredients of the common law offence of conspiracy to defraud as set out in Scott v. Metropolitan Police Commissioner are:-

1. a conspiracy

2. to dishonestly deprive a person of something which is his

Comparing the ingredients of the offence alleged in the warrant and the definition of the common law offence it is immediately clear

that the latter does not require as an ingredient deception. However in Scott v. Metropolitan Police Commissioner the appellant

argued that the Court of Appeal (1974) Q.B. 733 was wrong to say that “neither principle nor authority drives us to the conclusion

that the common law offence of conspiracy to defraud is limited to an agreement … to deceive the intended victim.” In the House of

Lords Viscount Dilhorne said that one must not confuse the object of a conspiracy with the means by which it is to be carried out and

that in a great many cases fraud has been perpetrated by deceit: however it does not follow that deceit must be the means. It is

clear from this that where the conspiracy is to defraud by means of deceit the common law offence is established.

However the appellant argues that the reference in the warrant to “by falsely representing” results in there being no correspondence

as it is well established that a statement of intention about future conduct, whether or not it be a statement of existing fact, is not a

statement that will amount to a false pretence at common law: R v. Dent (1955) 2 Q.B. 590. The false pretence in the present case

is the means by which the object of the conspiracy is to be carried out the object being dishonestly to obtain money transfers. To

constitute the offence of conspiracy to defraud it is not necessary that the means constitute a criminal offence: see Halsburys Laws

of England third edition Volume 9 at p. 709:-

“If two or more persons conspire together to cheat or defraud another or others, the Confederates Commission Indictable

Common Law Misdemeanour, whether the act which they agreed to do is or is not itself criminal”.

See also Minister for Justice v. Michael Fallon (unreported, High Court, 20th October 2005 Finlay Geoghegan J.):-

“I accept the submission of the counsel for the applicant that the offence at common law of conspiracy to defraud

includes an agreement to commit an unlawful act even where such unlawful act may itself not constitute a criminal

offence.”

In Charleton McDermott Bolger Criminal Law at p. 296 it is stated:-

“There was no generalised doctrine whereby conspiracy to commit a non criminal act was an offence. The exception was

a conspiracy to defraud which, in itself, possibly arose from the general common law doctrine relating to fraud and

cheating.”

In Scott v Metropolitan Police Commissioner Viscount Dilhorne carried out an exhaustive survey of the history and development of the

offence of conspiracy to defraud. He concluded that while in the vast majority of fraud cases the fraud has been perpetrated by

deceit it does not follow that deceit is a requirement of the offence: what is required is dishonesty. He identified a series of cases in

which there was a conviction although there was no false representation: see p.837. He distinguished between the object of a fraud

and the means whereby it was to be perpetrated. The object is to perpetrate a fraud – to cause the victim economic loss. To

constitute the offence the means must be dishonest. Lord Diplock in his judgment at p.841 held that it is not necessary that the

means should constitute a crime: nor is it necessary that the means involve fraudulent misrepresentation such as is needed to

constitute the civil tort of deceit. Dishonesty of any kind is enough.

In a civil context, however, a statement of intention involves a representation as to the existence of the intention: Edgington v

Fitzmaurice [1885] 29 Ch. D. 459. Thus representation in the civil law has a wider meaning than in criminal law. A fraudulent

misrepresentation will ground a civil action for deceit. In Scott v Metropolitan Police Commissioner at 839 Viscount Dilhorne said:-

“If, as I think, and as the Criminal Law Revision Committee appears to have thought, ‘fraudulently’ means ‘dishonestly’

then to ‘defraud’ ordinarily means in my opinion to deprive a person dishonestly of something which is his or of something

to which he is might but for the perpetration of the fraud to be entitled.”

Thus the representation if fraudulent is dishonest. It is immaterial that it could not amount to a criminal offence. It follows that in this

case the means whereby the offence was to be completed were unlawful at civil law the alleged representation amounting to deceit

and the offence of conspiracy to defraud is accordingly clearly established by the factual circumstances set out in the offence

alleged against the appellant in the warrant. It is not material that the means whereby the conspiracy to defraud – “by falsely

representing” – could not have led to a conviction for the offence of conspiring to obtain money by false pretences: it is sufficient for

the common law offence in the State if the means is a civil wrong of deceit and the element of dishonesty is thereby satisfied.

Accordingly looking at the factual components of the offence alleged in the warrant and of the offence of conspiracy to defraud

contrary to common law I am satisfied that there is correspondence. The appellant is not entitled to the direction which he seeks on

this ground.

Accordingly I would dismiss the appeal.