Supreme Court dismisses appeal on surrender refusal grounds, holding double criminality applies to executing state's own jurisdiction.

THE SUPREME COURT

[Appeal No: 174/2011]

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O’Donnell J.

Between/

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Ian Bailey

Respondent/Appellant

JUDGMENT delivered on the 1st day of March, 2012, by O’Donnell J.

1 The facts of this case have been set out in the judgments already delivered herein and it is not necessary to repeat them here.

Accordingly, I will turn to the arguments, and set out the reasons for my conclusions on them.

Section 42

2 In order to appreciate the issue that arises here it is sufficient to identify the following facts:-

(i) Mme. du Plantier was killed in December 1996, at a time in which extradition from Ireland was governed by the

provisions of the Extradition Act 1965 (as amended).

(ii) In 1997 the D.P.P. made a decision not to prosecute Ian Bailey. That decision was revisited on a number of occasions

thereafter, and prior to 2003, with the same result.

(iii) The European Arrest Warrant Act 2003 came into force on the 1st January 2004. Section 42(c) of the Act of 2003

provided that a person shall not be surrendered if, inter alia, the Director of Public Prosecutions has decided not to bring

proceedings against the person for an offence consisting of an act or omission that constitutes in whole or in part the

offence specified in the European arrest warrant. No decision was made by the D.P.P. in relation to the prosecution of Mr.

Bailey while s.42(c) was on the statute book.

(iv) There is no doubt, and it was not contested in this appeal, that if a warrant had issued for Mr. Bailey after the entry

into force of the Act of 2003, and before its repeal in 2005, the Court would have been obliged to refuse to surrender him

on this ground.

(v) Part 8 of the Criminal Justice (Terrorist Offences) Act 2005 (“Terrorist Offences Act”) affected a number of

amendments to the Act of 2003. Section 83 of the \terrorist Offences Act amended the Act of 2003 by removing

subsection (c) of s.42. (It appears that s.42(c) had been included in the Act as purported implementation of the optional

ground fro non-surrender contained in Article 4(c) of the Framework Decision, but was not in fact permitted by that

Article which referred to decisions by judicial authorities.)

(vi) By s.68 of the same Act it was provided that the amendments effected by Part 8 other than that contained in s.83

would apply to European arrest warrants “endorsed after the passing of the Act”. It followed therefore, and again was

not in contest on this appeal, that the removal of s.42(c) by s.83 of the 2005 Act applied immediately to warrants in

existence but not yet endorsed, which were described on this appeal as “pipeline warrants”, as well as to warrants

subsequently endorsed and to which all other amendments applied.

3 Counsel for Mr. Bailey argued that on these facts Mr. Bailey was entitled to continue to rely on s.42(c). In this regard counsel relied

almost exclusively on the provisions of s.27 of the Interpretation Act 2005 dealing with the effect of repeal of an enactment. Section

27(1)(c) provides that when an enactment is repealed, the repeal does not affect any right, privilege, obligation or liability acquired,

accrued or incurred under the enactment. It was not contested on this appeal that the effect of the amendment contained in s.83 of

the Terrorist Offences Act, was to repeal s.42(c) of the Act of 2003.

4 The argument advanced on behalf of the appellant was very simple indeed. It was argued that the provisions of the Act of 2003,

meant that by virtue of the D.P.P.’s decision in 1999, Mr. Bailey had a “right” not to be surrendered, and that the Terrorist Offences

Act should not, and could not, be interpreted to remove that right. Therefore although the warrant here was issued and endorsed

long after the coming into force of the Terrorist Offences Act, and the D.P.P.’s decision has been made long prior to the coming into

force of the Act of 2003, s.27(1)(c) of the Interpretation Act 2005 meant, it was argued, that Mr. Bailey had a “right” which had not

been removed by the repeal of s.42(c).

5 The provisions of s.27 of the Interpretation Act 2005 must be read in the light of s.4 of that Act which applies the Act to any

enactment “except insofar as the contrary intention appears in this Act, in the enactment itself, or where relevant in the Act under

which the enactment is made”. Accordingly s.27(1)(c) is in practical terms, identical to s.21(1)(c) of the Interpretation Act 1937

which provided:-

“Where an Act of the Oireachtas repeals the whole or a portion of a previous statute, then, unless the contrary intention

appears, such repeal shall not-

…

(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under the statute or portion of a

statute so repealed, ….”

Because the sections are identical in practical terms, no argument was addressed as to whether the Court should consider the Act of

2005 or the Act of 1937. I would reserve for another day any question of the scope of application of the interpretative principles of

the Act of 2005. For ease of reference I will refer to the provisions of s.27(1)(c) of the Act of 2005.

As it happens, provisions in the same form are to be found in s.16(1)(c) of the United Kingdom Interpretation Act 1978, and similar

provisions are to be found, as far back as the Interpretation Act 1889. A significant body of law has developed on the meaning of this

provision, not all of which is easy to interpret or reconcile.

6 From the outset it is helpful to distinguish between two closely related presumptions in common law. The first is the presumption

that legislation is presumed not to have retrospective effect unless clear words are used. The second is the presumption, embodied in

s.27(1)(c) of the Interpretation Act 2005 that legislation is not intended to affect vested rights again unless the contrary intention

clearly appears. It is particularly important to make this distinction in Irish law because the first presumption, which at common law is

no more than a matter of statutory interpretation, becomes, at least to some extent, a constitutional rule in Ireland by virtue of the

provisions of Article 15.5 of the Constitution. The distinction between the two presumptions, is very helpfully discussed in the speech

of the late Lord Rodger in the United Kingdom House of Lords in Wilson v First County Trust Limited (No.2) [2004] 1 AC 816 at p.873

et seq. As Lord Rodger observes, the distinction was first made in the decision of the English Court of Appeal in West v Gwynne

[1911] 2 Ch. 1. In that case Buckley L.J. observed:

“During the argument the words “retrospective” and “retroactive” have been repeatedly used, and the question has

been stated to be whether s.3 of the Conveyancing Act 1892, is retrospective. To my mind the word “retrospective” is

inappropriate, and the question is not whether a section is retrospective. Retrospective operation is one matter.

Interference with existing rights is another. If an act provides that as at a past date the law should be taken to have

been that which is was not, that act I understand to be retrospective. … Suppose that by contract between A and B

there is in an event to arise a debt from B to A, and suppose that an Act is passed which provides that in respect of

such a contract no debt shall arise. As an illustration take the case of a contract to pay money upon the event of a

wager, or the case of an insurance against a risk which an Act subsequently declares to be one in respect of which the

assured shall not have an insurable interest. In such a case, if the event has happened before the Act is passed, so that

at the moment when the Act comes into operation a debt exists, an investigation whether the transaction is struck at

by the Act involves an investigation whether the Act is retrospective … But if at the date of the passing of the Act the

event has not happened, then the operation of the Act in forbidding the subsequent coming into existence of a debt is

not a retrospective operation, but is an interference with the existing rights in that it destroys A’s right in an event to

become a creditor of B. As a matter of principle an Act of Parliament is not without sufficient reason taken to be

retrospective. There is, so to speak, a presumption that it speaks only as to the future. But there is no like presumption

that an Act is not intended to interfere with existing rights. Most Acts of Parliament, in fact, do interfere with existing

rights.”

7 In classic common law theory a person can be said to have a right to do that which is not specifically prohibited by law. Accordingly

since most Acts of the Oireachtas change the legal position, they will necessarily interfere with existing rights, (in that sense) and

that indeed is their purpose. The presumption contained in s.27(1)(c) of the Interpretation Act 2005 is not a presumption against

such effect: rather it is a presumption against interference with “rights … acquired or accrued” or what, in the language of the cases

can be said to be “vested rights”. Thus Bennion in Statutory Interpretation (4th ed. Butterworths, 2002) explains at p.259 the

identical provisions of s.16(1)(c) of the Interpretation Act 1978, as follows:-

“The right etc. must have become in some way vested by the date of repeal, i.e. it must not have been a mere right to

take advantage of the enactment now repealed.”

The same point is made in Craies On Legislation (9th ed. Sweet and Maxwell 2008), at para. 14.4.12:-

“The notion of a right accrued in s.16(1)(c) requires a little exposition. In particular the saving does not apply to a mere

right to take advantage of a repealed enactment (clearly, since that would deprive the notion of a repeal of much of its

obvious significance). Something must have been done or occurred to cause a particular right to accrue under a

repealed enactment.”

8 Accordingly, in order to succeed in this argument, the appellant/respondent must show two things: first, his entitlement after the

1st January, 2004, to have a court refuse to surrender him on the grounds set out in s.42(c) was a “vested right” or a right which

could be said to be “acquired or accrued” at the time of the repeal of s.42(c); and second, that the Oireachtas has not used clear

words to rebut the presumption.

9 The question in any given case of what constitutes a vested right for the purposes of this Section is often a difficult one. As Lord

Rodger points out at paragraphs 195 and 196 of his speech in Wilson v First County Trust Limited (No.2), [2003] 3 WLR 568, the

presumption normally falls to be considered in relation to legislation which alters rights only for the future. Since, as he says at

para.195, it is more likely that “Parliament intended to alter vested rights in this way that it intended to make a retroactive change,

in practice the presumption against legislation altering vested rights is regarded as weaker than the presumption against legislation

having retroactive affect”. At para. 196 Lord Rodger observes that “The courts have tried, without conspicuous success, to define

what is meant by “vested rights” for this purpose”. It is apparent from his discussion of the concept, and that contained in the

helpful decision of the Court of Appeal of England and Wales in Chief Adjudication Officer v Maguire [1999] 1 WLR 1778 that the

decisions in the reported cases are not all easy to reconcile. Lord Rodger observed that this might lend weight to the criticism that

the reasoning in such cases was essentially circular: courts are inclined to attach the label “vested” to those rights which they

conclude should be protected from the effect of the new legislation. In essence it appears that there is a dual inquiry: does it appear

that at the time the right was granted there it was intended that it should be permanent; and the closely related inquiry as to

whether it is unfair now to remove it, even for future events. In some cases these may be difficult concepts to apply with precision.

However in my view it is not necessary to explore the nature of the test to be applied in this case, because on any fair reading of the

authorities it seems clear that as a matter of Irish law it has been understood that the entitlement to raise, and to benefit from, any

particular statutory objection to extradition or surrender, cannot be understood to be a “vested right”.

10 In Sloan v Culligan [1992] 1 IR 223, this court had to consider the provisions of s.3 of the Extradition (European Convention on the

Suppression of Terrorism) Act 1987, which provided that in respect of certain specified offences, the offence should “not be deemed

to be a political offence or an offence connected with a political offence”. Under s.50(2) of the Extradition Act 1965, the High Court

could direct the release of an arrested person if the offence to which the warrant related was a political offence or an offence

connected with a political offence. Accordingly, the undoubted effect of s.3 of the Extradition (European Convention on the

Suppression of Terrorism) Act 1987 was to remove, in relation to the specified offences, the political offence exception. There was no

doubt that this applied to offences occurring after the coming into force of the Act. But each of the three plaintiffs in Sloan v Culligan

were sought in respect of offences which were committed long before the coming into force of the Act of 1987. Two of the plaintiffs,

Sloan and McKee, succeeded on other grounds, and the question of the nature of the entitlement to raise the defence to extradition

that the offence was a political offence did not arise in their case. In the case of Magee however, the matter was addressed, and it

is necessary therefore to consider the reasoning of the Supreme Court in that regard.

11 It is important to point out, that no claim was made as to the interpretation of the Act of 1987, by reference to the then

applicable provisions of s.21(1)(c) of the Interpretation Act 1937. That may have been because of the explicit terms of s.1(4) of the

Act of 1987 which provided that the Act applied “except where otherwise provided, in relation to an offence whether committed or

alleged to have been committed before or after the passing of this Act”. The argument made on Mr. Magee’s behalf was however,

that the removal of the political offence ground was contrary to Article 15.5 of the Constitution in that it was unconstitutional

retrospective legislation, and contrary to a right or entitlement of his vested by Article 40.3 of the Constitution to protection from

extradition which had been interfered with or left unprotected by virtue of the provisions of s.1(4) of the Act of 1987. The Supreme

Court rejected the first claim on the basis that Article 15.5 was a prohibition against the enactment of retrospective laws declaring

acts to be infringements of the law but did not contain any general prohibition of retrospection of legislation and that s.3 of the 1987

Act merely amended by statute what was a developing jurisdiction and the definition of a political offence for the purpose of the

Extradition Act and did not create any offence or any infringement of the law within the jurisdiction.

12 For present purposes however it is the Court’s analysis of the challenge under Article 40.3 of the Constitution which is relevant.

The court rejected the claim under Article 40.3 on the grounds that there was no right or entitlement accorded or vested by Article

40.3 to protection from extradition which had been interfered with. The reasoning of the court is set out at p. 272 as follows:-

“The Court is satisfied that the plaintiff did not have at any material time what has been described in the submissions

before the Court as a vested right, either to freedom or to protection from being delivered up to serve these sentences

on the basis that the offences in respect of which they were imposed constituted political offences, either of which

rights has been interfered with or left unprotected by virtue of the effect on the provisions of the Act of 1987 and in

particular, or s., sub-s.4 thereof.

The right of a plaintiff, as of every other citizen, concerning the question of his delivery into another State for the

purpose of serving a sentence lawfully imposed on him in that State was, the Court is satisfied, a right at any given time

to proper, due and fair procedures concerning an investigation of the validity of the warrant in respect of which he is

delivered, and to a fair, proper and due inquiry into the protections applicable in law, within the State at the time of the

application of his delivery, which may afford him a protection arising from the concept of a political offence or from any

other of the concepts appropriate to prevent such a delivery. The provisions of the Act of 1987 constituted a

development of the law applicable to the delivery of persons out of the jurisdiction of this State and into the jurisdiction

of the Northern Ireland courts, amongst others, which the legislature in accordance with the decision of the State to

ratify the European Convention on the suppression of terrorism, done at Strasbourg on the 27th January 1977, has

validly decided to enact. Upon the passing of that statute the right of every citizen and every person affected by it

simply is to its due application, and its application with regard to the provisions of s.3 thereof to a case where an

offence was committed before the passing of the Act of 1987, but where a warrant requesting the delivery of the

person concerned was not issued until after the passing of the Act, does not constitute, the Court is satisfied, any

failure on the part of the State to defend, vindicate or protect any personal right of the plaintiff.”

13 While this decision was delivered in the context not of an interpretation of the statute, but rather a challenge to its

constitutionality, it seems clear that its underlying reasoning was that a right to object to extradition on any particular statutory

ground, was not and could not be said to be a right that was vested in the sense that it was not intended to be open to further

future amendment or statutory development. On any fair reading of Sloan v Culligan, it seems to me that the reasoning in that case is

fatal to the appellant/respondent’s contention here that a right was conferred by s.42(c) of the Act of 2003 which was vested, and

which it would be so unfair to remove that the Oireachtas could not be presumed to have intended to do so without clear words.

14 The Minister also relied on Attorney General v Abimbola [2008] 2 I.R. 302 and the judgment of Fennelly J. in this court. That case

involved the transition between the Extradition Act 1965 and the European Arrest Warrant Act of 2003. The respondent Mr. Abimbola

was wanted in Germany to serve a sentence. A request had been made by Germany by the Federal Republic of Germany pursuant to

Part 2 of the Extradition Act 1965. However, before any application was made to court, that Act was repealed by the entry into force

of the Act of 2003. No European arrest warrant was issued in respect of Abimbola. Accordingly it was contended on his behalf that he

could not be extradited to Germany in pursuance of the request made under the now repealed Act of 1965, and that accordingly his

detention was unlawful and he was entitled to release pursuant to Article 40.4 of the Constitution. That claim was rejected in the

High Court, but allowed in this Court. It had been argued on behalf of the State in that case that while the German request gave rise

to a liability acquired, accrued or incurred and although therefore the 1965 Act was repealed, that did not affect any legal

proceedings in respect of any right, privilege, obligation or liability acquired.

15 In this Court Fennelly J. rejected the argument that once a request for extradition was made, Mr. Abimbola was under a “liability”

for the purposes of either s.22(2) of the 1937 Act or s.27(2) of the Act of 2005 once a request was made. Fennelly J. rejected this

claim and observed at p.331:-

“Nor do I think that the appellant became subject to a “liability” under the revoked statutory instrument. It is true that

the appellant was “liable” in a colloquial sense, to be extradited to Germany as the result of the combined effect of Part

II of the Act of 1965 and the statutory instrument applying that part in relation to Germany. However the Act of 1965 is

concerned with the making of requests for surrender from other states and the means of giving them effect. The

process involves the arrest and potential involuntary surrender of a person to another state. That does not constitute

the imposition of a “liability” in the legal sense. The Interpretation Act does not affect the interpretation of s.8(7) of the

Act of 1965 or the effect of the revocation of the application at Part II in relation to Germany.”

It is important to observe that the legal proceedings in respect of the extradition in this case had not commenced. If they had,

different considerations might have applied. But the reasoning in Abimbola is itself at least suggestive that the mere passage of the

Act of 2003 could not be said to confer upon Mr. Bailey a vested right in respect of a decision of the Director of Public Prosecutions

(taken after all, before the coming into force of that Act). Mr. Abimbola did not have any liability acquired or accrued in respect of

extradition at the time of the repeal of the Act of 1965, any more than Mr. Bailey had a vested right to resist surrender at the time of

the repeal of s.42(c).

16 It is also a relevant consideration in my view, that the Act of 2003 may be said to have proceeded on the basis that the twin

possibilities of surrender and refusal to surrender, were neither vested liabilities nor vested rights to which the provisions in relation to

repeal contained in the Interpretation Act applied. It is a notable feature of this case that at the time of the killing of Mme. du

Plantier an extradition request for Mr. Bailey would have failed by virtue of the provisions of s.16 of the Act of 1965, which precluded

extradition for an offence occurring on Irish territory. It is not contended however that that provision conferred a vested right, which

survived the repeal of the Act of 1965. It would be a rather curious conclusion therefore that the coming into force of the Act of

2003 by itself, and without more, could be said to have validly deprived Mr. Bailey of the ability to resist extradition under s.16 of the

1965 Act, but at the same time conferred upon Mr. Bailey a vested right to resist surrender (on the basis of a decision of the D.P.P.,

which itself predated the coming into force of that Act, and had indeed no legal significance in respect of extradition at the time

when it was made) which was not lost by the repeal of s.42(c). Finally, I should note that although Sloan v Culligan and Attorney

General v Abimbola [2008] 2 I.R. 302 were relied upon by the State in this case, and indeed in the judgment of the High Court, no

plausible distinction of those cases was suggested in the appellant’s submissions. Accordingly I am satisfied that the appellant’s claim

fails the first hurdle: the entitlement to resist surrender under s.42(c) is not a vested right. If anything it was to borrow the words of

Craies, “a mere right to take advantage of a repealed enactment”.

17 Even if the provisions of s.42(c) could be said to confer a right to which s.27(1)(c) of the Interpretation Act 2005 applied, it

seems to me to be furthermore an unavoidable conclusion that any presumption is displaced here, because on any fair reading of the

Criminal Justice (Terrorist Offences) Act 2005, a contrary intention does appear.

18 First, the general thrust of changes to the extradition code first in the Act of 1987 and subsequently in the European Arrest

Warrant Act 2003, is to make changes of general application, and not to provide any saver in respect of pre-existing claims. Indeed

this approach in part underpins the conclusion in Abimbola. Second, it does not seem to me to be possible to interpret s.63 of the

Criminal Justice (Terrorist Offences) Act 2005 as other than intending the application of the amendment affected by s.83 to cases in

which there was a pre-existing decision of the D.P.P.

19 It will be recalled that s.63 made a special rule for the application of the amendments to the Act of 2003 affected by Part 8 of the

Criminal Justice (Terrorist Offences) 2005 Act. These general amendments are to apply to warrants endorsed after the coming into

force of the Act. That provision in itself is significant. A warrant endorsed just after the coming into force of the Act will have

necessarily been in existence before the coming into force of the Act. If therefore this provision applied to the amendment of s.42(c),

it would follow that there was a clear intention to apply the Act to warrants pre-dating the Act and in respect of which a decision of

the D.P.P. had been made. But s.63 goes further and makes an express provision in respect of those amendments introduced by s.83.

The special rule for all other amendments was disapplied. It follows therefore that the amendments made by s.83 were effective

immediately on the coming into force of the Act and applied to warrants which had been issued and endorsed but had not yet been

executed. Such warrants in existence at the time of passage of the legislation, can only relate to offences which predate the Act. It

follows that since the only thing to which s.42(c) applies is a D.P.P.’s decision, that those warrants to which the amendments

immediately applied must have been, or at least include warrants in respect of which the D.P.P. had made a decision not to

prosecute.

20 It is not reasonable, in my view, to give the Act any other interpretation. It cannot, for example, reasonably be interpreted to

apply only to decisions of the D.P.P. after the coming into force of the Act that would run counter to the clear and express words of

s.63. The Act would then not apply to all European warrants whenever issued, and in particular to existing warrants not yet endorsed,

but would only apply to such warrants if a decision not to prosecute had been taken after the coming into force of the Act. That is

clearly not what the Act provides. Furthermore, if it was the intended operation of the Act, it is inexplicable that when a specific

provision was being introduced as to the range of warrants to which the amendments would apply, that it would not have been

clearly stated that in fact warrants whether endorsed or not, to which a decision of the D.P.P. had been made were not the subject

of the amendment. In the circumstances, I consider that the appellant’s claim fails on both grounds, and accordingly, the provisions

of s.42(c) of the Act of 2003 cannot avail him in this case.

Section 44

21 The provisions of s.44 of the European Arrest Warrant Act 2003 (as amended) (“the Act of 2003”) are already discussed in some

detail in the judgments delivered by my colleagues. This is undoubtedly a difficult section, and I see the force of the approach taken

by my colleagues, but I have, reluctantly, come to a different view.

22 It is common case that s.44 purports to implement in Irish law the provisions of Article 4(7)(b) of Council Framework Decision of

13th June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584 JHA) (“the

Framework Decision”). I agree that there is little difficulty in the first phrase in s.44 of the Act of 2003 (“A person shall not be

surrendered under this Act if the offence specified in the European arrest warrant issued in respect of him or her was committed or

is alleged to have been committed in a place other that the issuing state”). It is the second portion of the Section: “… and the act

or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an

offence under the law of the State” which pose all the difficulty in this case.

23 In approaching the interpretation of both s.44 of the Act of 2003 and Article 4(7)(b) of the Framework Decision it is useful in my

view to try and avoid reading the Section through the lens of the particular facts of this case. It is useful to recall that these

provisions are provisions of general application dealing with what might be described broadly as the issue of extraterritorial jurisdiction.

That issue can and does arise in a number of circumstances quite apart from the particular, and quite unusual facts, presented in this

case. For example, and most simply, the issue may arise in a case of offences, such as assault in Irish law, in respect of which the

executing state simply does not itself exercise an extraterritorial jurisdiction on any basis. In other and more difficult cases, the issue

may arise in circumstances where the definition of the offence, such as conspiracy, may be capable of including conduct which

occurs partially within the territory of the executing state. A different situation may be where the definition of an offence in the

issuing state, such as drug trafficking, may encompass preparatory acts occur in the territory of the executing state, but which

themselves might not be regarded as part of an offence by the law of that state. Obvious difficulties of principle arise when an

executing state may be required to enforce an extradition warrant in respect of acts occurring within the territory of that state which

that state itself does not consider unlawful. Still other difficult issues may arise where matters are criminalised in some jurisdictions

but not in others. For example, some countries may no longer criminalise drug taking in certain circumstances, or abortions carried out

at certain times and by reference to certain criteria. In such cases the act the subject matter of the alleged offence in respect of

which the issuing state exercises extraterritorial jurisdiction may have taken place wholly or in part within the requested state, but

may not be unlawful by the law of that state. A further example might be the exercise of exercise territorial jurisdiction in respect of

offences alleged to have occurred in a third country where the executing state does not itself purport to exercise extraterritorial

jurisdiction in respect of such offences. The example of a request to surrender a head of state of a third country to face charges in

relation to matters alleged to have occurred in that third country, is an obvious example of this category of case. Another area of

extraterritoriality is where in more modern times, by international agreement, countries have agreed that in cases such as genocide,

or certain sex trafficking offences, there can be trial in any country even though the acts alleged may have occurred in an entirely

different jurisdiction. There may be still other examples. The 34 words of the second portion of s.44 (and the corresponding words in

Article 4(7)(b)) must deal therefore with a large range of fact situations. It is a mistake therefore in my view, to fall into the trap of

assuming that because s.44 and Article 4(7)(b) had been raised in this case and appear to apply to it, that the Section and Article

were drafted with this type of situation in mind. Accordingly, it is in my view necessary to first seek to interpret the Section (and if

necessary the Article) in general, and then to seek to apply that interpretation to the particular facts of this case.

24 The task of interpretation, whether general or specific, is however particularly difficult in this case. The language of s.44 of the

Act of 2003 is somewhat opaque, and there is little by way of preparatory documents, or authoritative commentary, which can

illuminate these provisions. It will also be some time before the Irish courts are permitted to make a preliminary reference to the Court

of Justice of the European Union (“C.J.E.U.”). There is also a wide divergence between the interpretations urged by the parties in this

case.

The Interpretation Advanced on behalf of the Minister for Justice, Equality and Law Reform

25 Given the difficulties posed by the Section, the simple interpretation first advanced by the Minister for Justice, Equality and Law

Reform (“the Minister”) in the High Court has something to recommend it. It was said that the reference to “the State” meant Ireland,

and that it was therefore clear that the Section dealt with offences committed in third countries i.e. other than in the State and

accordingly could not be of application in this case where the offence was committed within the State. While the High Court judge did

not accept this interpretation on the basis of s.44 of the Act of 2003 alone, he did consider that the conclusion was correct, when

the Section was read in the light of the Framework Decision. That appeared to be because Article 4(7)(a) of the Framework Decision

was seen to deal expressly with offences occurring within the executing state. It seemed to follow therefore that Article 4(7)(b) dealt

with offences occurring outside the executing state. The apparent anomaly that this could mean that Ireland had selected a provision

that appeared to be more protective of third countries in respect of whom extraterritorial jurisdiction was being exercised than it was

of its own jurisdiction was explained, the High Court considered, by the fact that the other provisions of Article 4 of the Framework

Decision which had been implemented, and including in particular s.42(c) of the Act of 2003 meant that there were sufficient

protections in place in respect of offences occurring within Ireland. Section 42(c) provided that surrender would be refused if the

Director of Public Prosecutions (“D.P.P.”) had decided not to prosecute. This it was said covered any offences occurring within the

territory of Ireland. It was not therefore necessary to implement the provisions of Article 4(7)(a) in Irish law.

26 This interpretation cannot be lightly dismissed. In particular, even if Article 4(7)(b) of the Framework Decision is capable of a

broader interpretation than that advanced by the State, that does not mean that it was so understood by the drafters, when s.44

was enacted. If s.44 of the Act of 2003 has a clear even if narrow meaning, then effect must be given to it since the obligation to

give a conforming interpretation to the Section cannot result in the Section being interpreted contra legem. The Section, as

interpreted by the State, is capable of a practical, if very limited, application. It would mean that Ireland would only surrender in

respect of offences occurring in third countries when it too exercised jurisdiction in respect of those self-same offences. This would

apply in cases where by international convention extraterritorial jurisdiction was conferred on all states in respect of offences

wherever they occurred.

27 I have come to the conclusion however that this interpretation cannot be accepted. First, it is extremely restrictive of surrender,

when the general thrust of the Framework Decision and the Act is to facilitate surrender on the basis of trust in the issuing State’s

legal system. In that context there is little reason to believe that Ireland, or any other country, would be so offended by the exercise

of extraterritorial jurisdiction in respect of third countries with which they might have no connection whatsoever, that they would

wish to have a specific provision obliging the state to refuse surrender in such cases. It is striking that on this interpretation the Act,

while showing considerable sensitivity for the sovereignty of third countries (which countries might themselves not have any objection

to the exercise of extraterritorial jurisdiction in respect of offences occurring there), does not specifically address the exercise of

extra-jurisdiction in whole or in part within the jurisdiction of Ireland.

28 In this regard it is not sufficient in my view to point to the provisions of s.42(c) of the Act of 2003. First, that Section deals with

the question of prosecution rather than jurisdiction. Second, as pointed out in argument, it only relates to those offences in which

the D.P.P. can make decisions in respect of prosecution. Third, it does not deal with offences which have not yet come to the

D.P.P.’s notice. Fourth, it does not address at all the troublesome question of where the act alleged does not constitute an offence in

Ireland and is not capable of being prosecuted in Ireland. The question of surrender of a person from Ireland to meet charges in such

circumstances, is likely to be more rather than less sensitive, and the failure of the Act (on this interpretation advanced by the

Minister), to deal with that situation would be extremely surprising. Finally, if it were accepted that it was not thought necessary in

2003, at least on this interpretation, to implement in Irish law the provisions of Article 4(7)(a) of the Framework Decision because of

the existence of s.42(c) of the Act of 2003, it is more than curious that when Article 42(c) was removed only two years later, that

no steps were taken to address the apparent anomaly that Ireland would, on this interpretation, more readily surrender persons to the

extraterritorial jurisdiction of other member states, where the offence was committed in Ireland, rather than in any other place.

Accordingly I cannot accept that the interpretation of the Section advanced on behalf of the Minister is correct.

The Appellant’s case on Section 44 of the European Arrest Warrant Act 2003 (as amended)

29 It should be said that much of the argument for the appellant was involved in defeating the interpretation advanced by the

Minister, (largely successfully in my view) with the implication that the appellant’s interpretation would then be the only plausible, and

possible interpretation. For reasons already addressed, I agree that the interpretation advanced on behalf of the Minister is flawed,

but I cannot accept that it follows that the interpretation advanced by the appellant is correct.

30 It was argued by counsel on behalf of the appellant that the Section introduced the concept of reciprocity and therefore meant

that in effect an executing state would not surrender the person, unless, if the situation were reversed, the executing state would

exercise extraterritorial jurisdiction on the same basis. Here, although unusually, Ireland does exercise extraterritorial jurisdiction in

cases of murder, the basis for such jurisdiction is the citizenship of the alleged perpetrator, and not as in the case of France, the

citizenship of the victim. Accordingly, he said, if the situation was reversed, Ireland would not exercise jurisdiction in respect of the

extraterritorial murder of an Irish citizen. Therefore, it was argued, s.44 of the Act of 2003 applied and Mr. Bailey could not be

surrendered.

31 If s.44 of the Act of 2003 embodies the form of reciprocity contended for by the appellant, then it follows that the appeal

succeeds. It is self-evident however, that neither the words of s.44, nor those of Article 4(7)(b) of the Framework Decision say this,

at least in express terms. There is no explicit reference to reciprocity, or the basis for the exercise of extraterritorial jurisdiction

(rather than the fact of its exercise), nor indeed to the concept of considering a hypothetical case by reversing the fact situation in

the particular case. Indeed both s.44 and Article 4(7)(b) use the words “does not”, rather than a conditional phrase such as “would

not” which would be more consistent if as urged by the appellant, a hypothetical exercise was necessary. In addition, s.44 refers to

an act or omission not constituting an offence “by virtue of having been committed in a place other than the State”. Even in the

hypothetical situation posited by counsel, of the murder of an Irish citizen in France, Ireland would not exercise jurisdiction, and

accordingly the acts and omissions would not constitute an offence under Irish law, but that would not be by virtue of the acts

having been committed in a place other than the State – it would be because the acts are not alleged to have been committed by an

Irish citizen. Furthermore, for the appellant’s arguments to succeed it is necessary not just to reverse the fact situation, but to do so

at a relatively high level of abstraction: in other words, it is not sufficient simply to ask if the same event (the murder of a citizen of

France) occurred outside Ireland, whether Ireland could exercise extraterritorial jurisdiction. Instead it is necessary to formulate the

offence in general terms as the murder of a citizen outside the territorial jurisdiction of the state, and the inquiry then becomes

whether Ireland would exercise jurisdiction in such a case. Again, this approach does not appear on the surface of either s.44, or

Article 4(7)(b).

32 Counsel sought to deal with these difficulties by advancing an ingenious argument. It was said that the reference to “the act or

omission of which the offence consists” in s.44 of the Act of 2003, or even more clearly the reference to “same offence” in Article

4(7)(b) of the Framework Decision must be understood as importing the concept of reciprocity, and therefore the entirety of the

jurisdictional basis asserted. If therefore, the “same offence” was understood as meaning in this case, “the extra- territorial murder

of a citizen of the issuing state” in this case, and the jurisdictional basis was built into the definition of the offence, then it would be

said both the Section and the Article made sense and required the executing state to consider whether it exercised extraterritorial

jurisdiction in respect of the murder of its citizens. In this case, Ireland it was said, does not do so (at least on the basis of the

citizenship of the victim) and therefore would not do so, if the situation were reversed. Accordingly both s.44 and Article 4(7)(b)

applied, and surrender should be refused. However, in my view, that does not follow in this case.

Analysis

33 Since s.44 of the Act of 2003 is not clear it is appropriate to consider what assistance can be obtained from the provisions of

Article 4(7)(b) of the Framework Decision as follows:

“Where the European arrest warrant relates to offences which:

…

(b) had been committed outside the territory of the issuing member state and the law of the executing member state

does not allow prosecution for the same offences when committed outside its territory.”

Again, on one view the presence of Article 4(7)(a) which clearly deals with offences occurring within the executing state, might

suggest that Article 4(7)(b) deals with extraterritorial offences of jurisdiction in respect of third countries only. However I am

persuaded that that is too crude an approach. First, the words of Article 4(7)(b) in their natural meaning are capable of applying to

offences occurring within the executing state. Indeed, it is only the existence of Article 4(7)(a) which might lead to any other

interpretation. Second, it does seem to me significant that the two clauses are part of subsection 7, and linked by the word “or”. This

seems to recognise that they deal with the same, or at least related subject matter. In my view, it is at least logical that the

exercise of extraterritorial jurisdiction with which a state would be most concerned is when it is exercised in respect of matters

occurring within the executing state itself. Therefore in my view Article 4(7)(b) applies to the exercise of any extraterritorial

jurisdiction by the issuing state, including the exercise of such jurisdiction in respect of the territory of the executing state. On this

reading, executing states have three options in respect of offences alleged to have been committed in whole or in part on their

territory of the executing state: surrender in all cases (if Article 4(7) is not implemented at all); surrender in no cases (if subsection

(a) of Article 4(7) is implemented); and an intermediate provision which is provided by 4(7)(b).

34 It remains to consider however what that intermediate test is. It seems to me most productive to approach this difficult provision

by seeking to interpret Article 4(7)(b) of the Framework Decision first, and then to consider if the Section in the Irish Act can be read

compatibly with it. When faced with an unfamiliar and apparently impenetrable text, it is tempting to resort to familiar legal concepts

such as in this case reciprocity. However in my view considerable caution must be exercised in this regard. It is easy to reason in

apparently logical steps, that reciprocity naturally comprehends that if a situation was reversed, the executing state would do the

same; that “doing the same”, implies an identity (rather than similarity) of jurisdiction, which self-evidently is not present here; that

Ireland’s law on extraterritorial jurisdiction does not mirror that of France; that accordingly reciprocity is not present, and that

therefore Mr. Bailey cannot be surrendered. However that reasoning occurs at some distance from the words of either the Article or

the Section, and indeed is almost independent of them. It follows from the premise that the Section embodies reciprocity, rather than

from the words of either the Article or the Section. But that begs, rather than answers the question, whether either the Section or

the Article embody the concept of reciprocity.

35 In my view reference to the concepts of reciprocity in this context, and particularly as the starting point of the analysis, is not

helpful, and indeed may be positively confusing. Reciprocity in extradition law is a well known concept and is found for example in

Article 26 of the European Convention on Extradition (Paris, 13.XII. 1957 (“Convention of 1957”) and s.8 of the Extradition Act 1965

and comprehends the situation where, whatever the general law of surrender in a country, surrender may be refused specifically, to a

country which itself would not surrender to the requesting state in the same circumstances. Thus if country A has a rule of non-

surrender of its citizens then country B, which itself does not have that rule, but which had adopted a requirement of reciprocity,

would not surrender its citizens to country A. It will surrender any non-citizen to country A and will surrender its citizens to all other

countries which do not have a rule against the surrender of their own citizens. It is also perhaps noteworthy that where such

reciprocity is provided for, it is provided for by clear language. Thus for example s.8(1) of the Extradition Act 1965 provides:

“Where by any international agreement or convention to which the State is a party an arrangement (in this Act referred

to as an extradition agreement) is made with another country for the surrender by each country to the other of

persons wanted for prosecution or punishment or where the Government are satisfied that reciprocal facilities to that

effect will be afforded by another country, the Government may by order apply this Part in relation to that country.”

Similarly, in the Extradition Act 1965, (Part II) (No.1) Order 1966, it is provided by Article 2.7 that:

“Any party may apply reciprocity in respect of any offences excluded from the application of the convention under this

Article.”

36 It is apparent that reciprocity, at least in the sense understood by Article 26 of the 1957 Convention, is not what is involved here.

Neither s.44 nor Article 4(7)(b) of the Framework Decision makes any inquiry as to the circumstances in which the issuing state itself

would surrender. On the contrary they ask something about the substantive law of the executing state. In this case for example no

attention was directed either in argument or evidence to the question of whether France would surrender in similar or indeed identical

circumstances, and correctly so. Whether France would surrender in such circumstances would depend on whether France had

adopted any part of Article 4(7), and even then in what terms, but would have nothing to do with whether Ireland would surrender.

Accordingly, the concept of reciprocity, as traditionally understood within the law of extradition, is not involved here. That should not

be surprising. The purpose of the Framework Decision was to seek to harmonise the grounds for surrender and non-surrender between

states and thus facilitate the process of enforcement in the criminal law of the member states. It certainly simplifies matters if the

law of surrender in any given member state is the same for requests from all other member states. Whether that is necessarily always

desirable is not a matter for this court.

37 Article 4(7)(b) can be read most intelligibly and simply, as giving a power to executing states to refuse to execute a European

arrest warrant when two conditions are satisfied. The first condition (“where the warrant relates to an offence which has been

committed outside the territory of the issuing state”) is a purely factual inquiry which can be answered by recourse to the warrant

itself. The second (“the law of the executing state does not allow prosecution for the same offences when committed outside of its

territory”) is an inquiry as to the law of the executing state, which ought to be capable of being answered readily by any person

familiar with the criminal code within that jurisdiction. The two conditions are related. Extraterritorial jurisdiction must be being

exercised as a matter of fact by the issuing state, and the second condition relates to the extraterritorial jurisdiction of the executing

state, but unless some extended meaning is to be given to the words “same offences” there is in my view no requirement of

reciprocity contained in the Article.

38 I agree that if the appellant’s argument is correct, and the words “same offences” can be read to mean both the substantive

offence and the jurisdictional basis upon which it is tried in the issuing state, then it may be possible to give effect to Article 4(7)(b)

to preclude surrender in this case. In other words, if the offence in issue is defined as the ‘extraterritorial killing of a French citizen’ or

perhaps more correctly ‘the extraterritorial murder of a citizen of the issuing state’, then, (and acknowledging that there would still be

a difficulty with the phrase “does not”), it would be possible to reach the conclusion that Article 4(7)(b) can be interpreted as urged

on behalf of the appellant. However, I do not think it is possible to read the concept of “same offences” in this way.

39 First, the term “same offences” refers back to the introductory words of Article 4(7), “where the European Arrest Warrant relates

to offences which …”. This plainly directs attention to the offence or offences in law to which the warrant relates. I think in its

natural and primary meaning the word “offence” in this specific context would be readily understood to mean that offence contained

in the list set out in Article 2.2 and specified in the particular warrant. In this case that is the offence of murder, and not the

altogether more artificial concept of ‘extraterritorial murder of a citizen of the issuing State’. Second, the offence to which this

European arrest warrant relates, is described in just this way: it is the offence marked in the list as that of “murder” and nothing

more. Third, it appears that the French Code defines such murder as provided for by Articles 221-1 and 221-3 of the French Penal

Code as specified in the warrant, and quite separately from the provisions of Article 113.7 of the Code which permit prosecution for

offences generally (and therefore not just murder), occurring outside the territory of France the victims of which are French citizens.

Accordingly it appears that French law considers the ‘offence’ here to be ‘murder’, and not ‘extraterritorial murder of a French

citizen’. Fourth, while the warrant itself described the location of the murder as “Skull [sic] Ireland” and “a house in County Cork” it

does not assert that this is outside France, as might be expected if this was an elements of the offence, and the citizenship of the

victim is not referred to at all. Fifth, the statement of the appellant’s French lawyer, M. Tricaud, again refers to the offence as

‘murder’ and makes no reference to either the extraterritorial location of the offence, or indeed the citizenship of the victim. Sixth, to

read the Article in the fashion contended for by the appellant would lead to what was at best a clumsy tautology. If the offence in

this case is that of ‘murder of a citizen outside the territory of the issuing member state’, then Article 4(7)(b) as applied to this

case would read “where the European arrest warrant relates to the offence of murder of a citizen outside the territory of the

issuing Member State which has been committed outside the territory of the issuing Member State …”. Put in a slightly different way

the very fact that the Article refers to ‘offences’ which have been committed outside the territory of the issuing state is inconsistent

with extraterritorial location being a component of the definition of the offence.

40 The approach suggested by the appellant would, in my view, be also inconsistent with the thrust and object of the Framework

Decision. The most distinctive feature of the Framework Decision is that in respect of a very large range of the most common

offences which are listed in Article 2(2), double criminality is no longer required. Whatever, therefore, the French definition of murder

and whether or not it corresponds either in law or in fact to the offence in Irish law, Ireland has agreed that it will surrender to

France persons wanted for trial or indeed to serve sentences in respect of the French offence of murder. France, and every other

country has made the same agreement in the case of Ireland. In other words, in respect of all those offences listed in Article 2(2) the

precise components of the offence in the law of the requesting state are not meant to be the subject of investigation by the

executing state still less a ground for non-surrender. It makes little sense therefore to introduce a requirement to debate and analyse

the precise constituents of the offence in the law of the requesting state, only in the context of Article 4(7)(b).

41 This leads me to the conclusion that the natural understanding of the word “offence” or “same offences” is the correct one and in

this case relates simply to murder. Approached in this way Article 4(7)(b) is perfectly capable of being read both intelligibly and

consistently with the language of the Article, and its presumed intent. Thus, where adopted, it permits or requires an executing state

to refuse surrender where the European arrest warrant relates to an offence of murder, committed outside the territory of the issuing

member state (in this case France) where the law of the executing member state (in this case Ireland) does not allow prosecution for

that offence when committed outside its territory. If the offence here was assault, then the Article 4(7)(b) exception would apply.

Here however, Ireland does exercise extraterritorial jurisdiction for murder. That, in my view, is all the Article requires. In particular, it

does not require analysis of the precise basis upon which Ireland or any other executing state may exercise extraterritorial jurisdiction

for that offence. It is more consistent with the Framework Decision, to ask simply, whether in the case of murder (whatever its

definition) Ireland exercises extraterritorial jurisdiction. We no longer ask how Ireland or the requesting state define the offence of

murder: it is enough that they have such an offence. By the same token, it should not be necessary to ask the precise basis upon

which Ireland exercises extraterritorial jurisdiction in cases of murder; it should be enough that it does.

42 This interpretation has the benefit that it is consistent with the use of the words “does not” both in Article 4(7)(b) and s.44. The

simple question posed by both the Section in the Act and the Article in the Framework Decision, is, does Ireland allow prosecution for

the offence of murder when committed outside its territory. Not only is this conclusion fatal to the interpretation advanced by the

appellant, but it also leads to an interpretation of both the Section and Article which I consider is more compatible with both their

text and the underlying purpose of the Framework Decision. Surrender of persons to other countries is a serious matter for an

individual involving arrest, detention and on occasions forcible removable from the state. On occasion it can be a matter which

generates great emotion, and considerable legal debate. However, in is essence it remains an essentially paper analysis. It is the

execution of a warrant. If the warrant is in proper form, then unless one of the specific exceptions to surrender is established, the

warrant is enforced. The purpose of the Framework Decision was to simplify and harmonise that process. This is the context in which

s.44 is to be analysed. In a sense the entirety of the Act and the Framework Decision take effect within four corners of the text of a

European arrest warrant presented to the executing judicial authority. Therefore, the “same offences” referred to in Article 4(7)(b)

and “the offence” referred to in s.44, refer back to the offence, to which the European arrest warrant relates. That offence is by

definition, one that has already passed through Article 2(2) or Article 2(4), since if it did not, the warrant could not be enforced at

all. That offence is selected from Article 2.2, or is the offence in the law of the executing state found to correspond by Article 4.4 to

the offence specified in the warrant issued by the issuing state. It is that offence, i.e. the offence either selected from Article 2(2) or

found to correspond by reference to Article 2(4), which is the offence to which the warrant relates and is the subject of the inquiry

posed by Article 4(7)(b) and s.44, rather than the specific facts alleged in any particular case to constitute that offence. Indeed,

those facts may often only be set out in summary form in the warrant.

43 This interpretation is more compatible with the text of s.44, whereas by contrast the interpretation advanced by the appellant is

concededly more difficult to reconcile with that Section. It cannot be said that act or omission of which the offence here consists

(the killing of another person) does not constitute an offence under the law of the State, by virtue of having been committed in a

place other than the State. If it does not constitute an offence under the law of the State, it is by virtue of the fact that it is not

alleged to have been committed by an Irish citizen. Again, this permits a relatively straightforward interpretation of a difficult Section.

The offence of murder if committed outside the jurisdiction of the state by an Irish citizen, does constitute an offence triable under

the law of the state by virtue of s.9 of the Offences Against the Person Act 1861, as adapted, whereas, the offence of assault

occurring outside the jurisdiction of the state, does not, and importantly it can be said that it does not do so by virtue of having

been committed in a place other than the State. I realise that this is a narrow distinction, and that in some sense it can be said that

extraterritoriality is generally prohibited and an exception made in the case of a murder alleged to have been committed by a citizen,

and to that extent it might be said that the murder of an Irish citizen by a national of another state does not constitute an offence

under the law of Ireland by reason of having been committed outside the jurisdiction of Ireland. Nevertheless, it is, I think, significant

that a more precise reading of the Section in the Irish Act, is more compatible with the interpretation which I consider is itself more

consistent with the provisions of Article 4(7)(b). The qualification contained in the subsection is deliberately narrow. It is not

permissible to argue simply, that Ireland could not prosecute such an offence because for example it defines the offence differently.

That would be to reintroduce a general principle of double criminality expelled by Article 2(2) and much diluted by Article 2(4).

Instead, the sole permissible ground is if the matter is not capable of being treated as an offence by virtue of its extraterritorial

location.

44 While there is a dearth of background material on Article 4(7)(b), what little there is points in my view towards the interpretation

just advanced. The significant advance sought to be achieved by the Framework Decision was the agreement of a list of offences

contained in Article 2(2) (conceived as harmonised offences but in truth deemed to be harmonised) and in respect of which precise

double criminality would no longer be required. In relation to other offences, the test for correspondence now required by Article 2(4)

would be more liberal. It would not be necessary to establish correspondence of the legal offences, but merely that the facts alleged

would constitute an offence under the law of the executing state. The evident aim of the proposal was to simplify the process of

surrender between member states. Since extradition is essentially a matter for agreement between sovereign states, the underlying

principle is one of trust and confidence in the legal system of those states with which this State has chosen to enter an extradition

agreement. The Framework Decision is predicated on a high level of trust and confidence in the systems of other member states, and

it was logical therefore that the Framework Decision should seek to simplify the process of surrender. The removal of double

criminality in the cases of Article 2(2) offences, and its dilution in the case of Article 2(4), was a very substantial step in that

direction.

45 Extraterritoriality, however it appears, proved particular problems especially where the extraterritorial jurisdiction is being exercised

by the issuing state, related to events occurring on the territory of the executing state and above all, where the matters alleged,

might not have been regarded as offences by the law of the executing state. There is an interesting commentary contained in the

European Commission “Proposal for a Council Framework Decision on the European arrest warrant and the surrender procedures

between member States” COM (2001) 522 Final dated the dated the 25th of September 2001. Under the heading “Article 28 principle

of territoriality” it provided as follows:-

“When a Member State exercises extraterritorial jurisdiction in relation to an offence which is not an offence under the

law of the State in which execution is requested, the latter state will be able to refuse to execute the European arrest

warrant. A state is considered to exercise extraterritorial jurisdiction when none of the components of the offence is

located on its territory. Member States are generally required to provide mutual assistance and execute European arrest

warrants issued by the judicial authorities of the other member states even where they exercised extraterritorial

jurisdiction on the basis of their national law. However, the obligation does not apply in cases involving offences which do

not constitute offences in the state in which execution is requested. This avoids a obliging a state to execute a European

arrest warrant for an offence committed entirely on its territory but not classed as such by its own law. The criterion to

be taken into account here, to consider the restoration of the principle of double criminal liability, will be the definition of

the offence in the substantive criminal law rather than the question that the jurisdiction of the state in which execution

is requested for an identical offence. In other words, the execution of the European arrest warrant could be refused if

the issuing State exercised extraterritorial jurisdiction and if the offence justifying the exercise of this jurisdiction does

not exist in the state in which execution is requested. The assessment of whether the offence provided for by the

legislation of the executing member state must be done on a strict basis and not include the question of jurisdiction in a

similar case. Thus, if the offence exists in law but the courts of the executing State have no jurisdiction on the facts,

the European arrest warrant must be executed.” (Emphasis added)

46 This text identifies a particular problem and suggests a logical response, namely the limited restoration of the principle of double

criminality, but where the question was whether the offence existed in law, and not whether the executing state would have

jurisdiction. Subsequent developments recorded in the note of the 4th December, 2001, showed that the French delegation had

somewhat tentatively proposed a broad limitation to Article 2 itself, limiting the execution of European arrest warrants without

verification of double criminality (i.e. those offences now listed in Article 2(2)) to offences committed wholly or partly in the territory

of the issuing member states. This would have gone further than the Commission proposal and would have restored double criminality

for all offences occurring outside the territory of the member state. The presidency recommended a different solution namely, that

where the acts were committed wholly or partly in the territory of the executing state, surrender could be refused where the

executing state undertook to conduct the prosecution or execute the sentence itself. It was also noted that the Netherlands

supported by a number of countries including Ireland, had made a broader proposal, which was expressed to be based on Article 7 of

the Convention of 1957 which was:-

“Where the European Arrest Warrant envisages offences which:

(1)are regarded by the law of the executing judicial authority as having being committed in whole or in part in the

territory of the executing member state or in a place treated as the territory of that member state;

(2)have been committed outside the territory of the issuing member state and the law of the executing member state

does not allow prosecution for the same offences when committed outside the territory of the executing member

state.”

47 This it will be noted is, with some small textual changes, the genesis of Article 4(7)(b). That proposal was described in the text as

follows:

“Several delegations (NL/EL/IRL/L/DK/A and S) wanted to introduce additional grounds for optional law on execution,

making it permissible to refuse to execute in a European Arrest Warrant issued for acts committed in whole or in part in

the territory of the executing member state or committed outside the territory of the issuing member state, if the law

of the executing member state does not allow prosecution of offences of the same type committed outside the territory

of the executing member state.”

While this is not particularly clear, it certainly does not explicitly introduce any concept of reciprocity. Indeed in its reference to

“offences of the same type” it seems to contemplate a general and broad question, rather than a specific inquiry as to whether if the

facts of the particular case were reversed, the executing state would exercise jurisdiction.

48 It was noted in the proposal for what became Article 4(7)(b), that the text was modelled on Article 7(2) of the Convention of

1957. That provided as follows:

“When the offence for which extradition is requested has been committed outside the territory of the requesting Party,

extradition may only be refused the law of the requested Party does not allow prosecution for the same category of

offence when committed outside the latter Party’s territory or does not allow extradition for the offence concerned.”

Again, that text is not beyond doubt, but it does seem that the reference to “same category offences” or to the law not allowing

“extradition for the offence concerned” are suggestive of a general inquiry rather than one related to the very specific facts of the

particular case.

49 It is also notable that Article 7(2) of the Convention of 1957 does not include the concept of reciprocity. Article 26 permitted any

contracting party to make a reservation, and Article 26(3) provided:

“A contracting party which has made a reservation in respect of the provision of the Convention may not claim

application of the said provision by another party save insofar as it has itself accepted the provision.”

As has been pointed out, such a reservation could be entered in respect of Article 7. Where it applied therefore, a state which had

not itself accepted the principle of permitting surrender to issuing states exercising similar extraterritorial jurisdiction to it, could not

secure the surrender from an executing state which had accepted the principle, even though the provisions of Article 7(2) were

satisfied. This is the true principle of reciprocity, and its express acknowledgement in Article 26 reinforces the conclusion that the

principle is not present in Article 7(2) of the same Convention. If not present in Article 7(2) of the 1957 Convention it is difficult to

understand how it can be said then to be part of Article 4(7)(b) of the Framework Decision expressly modelled on Article 7(2).

50 These are all considerations which point, albeit not definitively, towards the interpretation of Article 4(7)(b) as only requiring a

consideration of the question whether the executing state, in this case Ireland, does exercise extraterritorial jurisdiction in respect of

the offence in question, in this case murder. It does not appear to me that the United Kingdom materials referred to by Fennelly J.,

are more than equivocal. I do accept that Farrell and Hanrahan in their useful text: “The European Arrest Warrant in Ireland” (Clarus

Press, 2011), seem to suggest that the court is obliged to consider whether extraterritorial jurisdiction will be exercised in theory in

similar cases although they acknowledge that the matter is doubtful. However the conclusion to which those learned authors come

to, is expressly predicated on what they described as “the underlying principle of reciprocity”. This in turn follows from the passage

already quoted in the judgment of Fennelly J.:

“Such provisions are based on the principle of reciprocity which held that one State should not be required to extradite

for an offence if it could not request extradition for the same offence where the roles was reversed. The principle is

directed at ensuring that an almost perfect balance of mutual obligations as between States is maintained.”

This is where I would respectfully part company with the authors. First, the principle of reciprocity of surrender is not at all

maintained in the Framework Decision. Second, the long-standing principle of reciprocity in extradition law was concerned with

reciprocity of surrender, and not any question of jurisdiction. In the context of the Convention of 1957, for example, it was provided

for by the terms of Article 26(3) rather than Article 7(2). Article 4(7)(b) in my view is concerned with a residual question of double

criminality - residual because Article 2(2) significantly reduced that requirement in respect of most ordinary offences. In that regard, I

would respectfully agreed with Lord Justice Scott Baker in the observations referred to by Fennelly J. at para. 78 of his judgment.

Double criminality looks to the essence of the offence, rather than to the jurisdictional basis upon which it is tried. It might be said of

course, that where there was such correspondence it would follow that if the circumstances were reversed, the issuing state would

have to surrender to the executing state for the corresponding offence, but if so, that is merely a consequence of the existence of

double criminality and not a part of the inquiry. In such a case, the executing state agrees to surrender not because the other state

will in turn surrender to persons to it, but rather because the matters alleged would also be offences under the law of the executing

state, and it had agreed itself to surrender persons who carried out acts which would if committed within its own territory, be

offences under its law.

51 Perhaps the most decisive consideration in my view, is however that the interpretation suggested here is, I believe one which is

most consistent with both the language context and presumed intention of the Framework Decision. I completely agree that the

Article must be given a purposive interpretation. Furthermore I agree that the question is the purpose of Article 4(7)(b), and that is

not answered by a general assertion as to the purpose of the Framework Decision as a whole. However, to understand the purpose of

Article 4(7)(b) it is necessary to set out its context, which is the Framework Decision as a whole and to acknowledge that in this

case, the thrust of that decision was to significantly increase cooperation on extradition matters, by removing technical objections to

surrender where there was broad consensus as to the nature of many well known offences.

52 In this case, the issue lies between an interpretation which requires an identical jurisdiction in respect of extraterritorial offences,

(which would make surrender more difficult), and an interpretation which considers only whether in respect of the class of offence

with which the person is charged, the executing state itself exercises extraterritorial jurisdiction. In resolving this question the

context and structure of the Framework Decision is helpful. In cases such as murder, it does not ask for perfect identity of legal

definition or even, that the acts concerned themselves would constitute the offence of murder in the law of the executing state. The

same approach would suggest that the Framework Decision is not concerned with a precise identity of jurisdiction, so long as the

executing state itself exercises jurisdiction in respect of the offence in its law. For these reasons, I would dismiss the appellant’s

appeal on this point.

Remaining Issues

53 For the reasons set out in the judgments already delivered by my colleagues, I fully agree that surrender must be refused under

s.21A. I also agree that in the light of the Court’s disposition of these issues it is not necessary to hear further argument on the issue

under s.37.