Supreme Court allows appeal finding correspondence between Polish and Irish offences for EAW surrender.

THE SUPREME COURT

[Appeal No: 108/2012]

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Clarke J.

In the Matter of the European Arrest Warrant Act, 2003 as amended

Between/

The Minister for Justice, Equality and Law Reform

Applicant

and

Robert Szall

Respondent

Judgment of Mr. Justice Clarke delivered the 15th February , 2013.

1. Introduction

1.1 One of the questions which often arises in the context of extradition law generally is the issue of the correspondence of the

offence in respect of which extradition is sought with a like offence in the jurisdiction to which the extradition request is directed.

This case concerns just such an issue.

1.2 The respondent (“Mr. Szall”) is sought by the authorities in Poland. In a judgment delivered on the 17th February, 2012, Edwards

J. refused to order the surrender of Mr. Szall to the Republic of Poland on foot of a European Arrest Warrant ("EAW") issued on the

21st April, 2009. The applicant/appellant (“The Minister”) wished to appeal to this Court against that refusal. It was, of course,

pursuant to s. 16(11) of the European Arrest Warrant Act 2003 (as amended), necessary for the Minister to obtain a certificate in

accordance with that section in order to bring an appeal to this Court.

1.3 On the 9th March, 2012, Edwards J. certified that his order of the 17th February involved two points of law of exceptional public

importance in respect of which it was desirable in the public interest that an appeal should be taken to this Court. The two points as

so certified were as follows:-

(i) where compliance with, or breach of, a statutory provision is an ingredient of an offence in the State, is that offence

capable of amounting to a corresponding offence for the purposes of Section 5 European Arrest Warrant 2003 (as

amended)?

(ii) Is Section 6(2), Criminal Justice Act, 1960 capable of being a corresponding offence for the purposes of Section 5

European Arrest Warrant Act 2003 (as amended)?

1.4 So far as this appeal is concerned the only issues between the parties, therefore, now concern questions arising out of whether

there is correspondence between relevant Polish and Irish offences. To more fully understand the precise issues which arise under

that heading it is next necessary to turn to the offence specified in the EAW and what is said to be the corresponding Irish offence.

2. The Polish and Irish Offences

2.1 It should first be noted that the EAW involves six offences. The offences are numbered in roman numerals. Edwards J. found no

difficulty in finding correspondence between the offences specified at I to V inclusive. No continuing issue arises in respect of those

offences. It was, however, in respect of the offence at VI that Edwards J. found a lack of correspondence.

2.2 In that context it should be noted that one single sentence was imposed by the relevant court in Poland in respect of all six

offences. It was accepted on behalf of the Minister, therefore, at all material times, that it followed that Mr. Szall could only be

surrendered in the event that there was correspondence in respect of all six offences, for in the event that there was a lack of

correspondence in respect of any one offence, and having regard to the composite sentence imposed in respect of all six offences, a

surrender of Mr. Szall would amount to a surrender for all six offences including any one or more of same in respect of which there

was no correspondence. Obviously such a surrender could not be ordered. It followed that it was only necessary for Mr. Szall,

because of the way in which the sentence in this case was imposed in accordance with Polish law, to satisfy the court that there

was a lack of correspondence in respect of any one of the offences.

2.3 The net issue on this appeal, therefore, comes down to a consideration of whether there is correspondence between the offence

specified at item VI in the relevant EAW and a relevant offence in Irish law. In that context it is appropriate to refer both to the

offence specified at VI in the EAW and to the offence created by s.6(2) of the Criminal Justice Act 1960 ("the 1960 Act"), which is

said to be the corresponding offence in Irish law.

2.4 In the English translation provided to the Irish authorities, offence VI is set out in the following terms:-

"In the period from 6 March 2006 to 5 April 2007, in Lublin, with no justified reason he did not return to the detention in

custody at ul. Poludniova 5 after a break in carrying out a penalty, granted by the Provincial Court – Penitentiary

Department in Krosno file ref no. III Kow 81/05/Pr"

The nature of the offence is said to be a "misdemeanour against administration of justice under article 242 paragraph 3 of the

Criminal Code".

2.5 Section 6(2) of the Criminal Justice Act, 1960 provides that a person "who is unlawfully at large shall be guilty of an offence

under this section and on summary conviction thereof shall be liable to imprisonment for a term not exceeding six months." In

addition s. 6(1) of the same Act deems a person who has been temporarily released under the 1960 Act to be unlawfully at large for

the purposes of subs. 2 if:-

"(a) the period for which he was temporarily released has expired, or

(b) a condition to which his release was made subject has been broken".

2.6 The Minister asserted that there was correspondence between the Polish offence to which reference has been made and s. 6 in

one or both of two ways. First the Minister asserted that the offence created by s. 6(2) was a general offence of being unlawfully at

large, meaning a general offence which was committed by any person who was out of prison at a time when, as a matter of law, the

relevant person should be in prison. On that basis it was suggested on behalf of the Minister that an offence under s. 6(2) could be

committed independently of whether the person was deemed to be unlawfully at large in accordance with the terms of s. 6(1). In

other words it was suggested that s. 6(2) was wider in its ambit than the confines of the cases deemed to come within the definition

of unlawfully at large by virtue of s. 6(1). On the basis of that interpretation, it was said on behalf of the Minister that the relevant

Polish offence corresponded to s. 6(2).

2.7 Second, and in the alternative, counsel urged that, even if her submission concerning the wider ambit of s. 6(2) was incorrect, it

nonetheless remained the case that there was correspondence between the relevant Polish offence and an offence committed by a

person who came within s. 6(1)(a) and thus was deemed to be unlawfully at large and thus, in turn, committed an offence under

s.6(2).

2.8 It is also necessary to say something about the relevant Polish offence. In the course of further information provided by the

requesting Polish court the text of article 242 of the relevant Polish criminal code was made available which, in the official English

translation supplied, specifies as follows:-

(1) A person who frees himself/herself, being deprived of liberty on the basis of the judicial decision of the court or legal

order issued by another state authority is subject to fine, limitation of liberty or imprisonment of up to two years.

(2) A person who, using a permit for temporary leaving of the penal or detention institution without supervision, does not

return in three days from the passage of the fixed term without justified reason is subject to fine, limitation of liberty or

imprisonment of up to a year.

(3) A person who, using a break in serving the penalty of imprisonment, does not return to the penal institution in three

days from the passage of fixed term without justified reasons is subject to penalty as specified in paragraph 2.

(4) If the perpetrator of the acts specified in paragraph 1 acts in agreement with other people, uses violence or threats

of using it or damages the place of detention is punishable with imprisonment of up to three years.

2.9 It is clear from the EAW that the matter of which Mr. Szall stands convicted is an offence under paragraph 3, being that he did

not return to the relevant penal institution within three days of the passage of a fixed term arising from a "break in serving the

penalty of imprisonment".

2.10 It should be noted that no other relevant provisions of the Polish criminal code were produced in evidence which gave the court

any further information as to how a so called "break in serving the penalty" might arise or as to what the distinction was between a

"break in serving the penalty" referred to in paragraph 3, and a "permit for temporary leaving" failure to comply with which results in a

breach of paragraph 2. What is, however, clear from the EAW is that the break in serving the penalty in this case was as a result of

an order of a court as the EAW refers to the break being granted by the Provincial Court, Penitentiary Department in Krosno. It is, I

think, therefore, fair to say that there is some lack of complete information. What is, however, also clear is that Mr. Szall was

convicted of failing to return to the relevant penal institution after the expiry of a fixed term break which, at least in his case, was

ordered by a relevant court. Whether such a fixed term break can only be ordered by a court or whether there are any other methods

by which such a fixed term break can be granted, is not clear.

2.11 Having set out the relevant Polish and Irish offences it is next necessary to turn to the judgment of the trial judge.

3. The High Court Judgment

3.1 In his judgment (The Minister for Justice, Equality and Law Reform v. Szall, [2012] IEHC 64), Edwards J. focused on the

established principle of statutory interpretation to the effect that a penal provision should be given an interpretation “which is least

unfavourable to the accused, or as in the present case the respondent, concerned.” The trial judge then adverted to the fact that

the Mr. Szall’s release was pursuant to court order and not pursuant to a ministerial scheme, as is the case in this jurisdiction under s.

6 of the 1960 Act. In those circumstances, and giving Mr. Szall the benefit of the most favourable interpretation possible, the learned

judge was of the opinion that there was insufficient correspondence between the offences. Towards the end of his judgment, he

stated:-

“The Court is inclined to the view that the interpretation contended for by counsel for the respondent is probably the

correct interpretation. However, be that as it may, in circumstances where the Court has a least some residual doubt

about how to correctly interpret s. 6 (2), it is obliged according to long established principles of statutory interpretation

to resolve that doubt in favour of the respondent.”

3.2 It is, of course, against that judgment and by particular reference to the certified issues that the appeal comes to this court.

There is a sense in which there is only one issue in the appeal. Is there correspondence between the relevant Polish and Irish

offences? However, the first certified issue raises, perhaps, a more general question, which can be seen as a component part of that

overall issue. That general question involves a consideration of the proper approach which should be adopted in cases where the

purported Irish corresponding offence itself contains within its terms a requirement of lack of compliance with or breach of, an Irish

statutory provision or scheme separate from the provision creating the offence. I, therefore, turn first to a consideration of that

question. It might be appropriate, in generic terms, to refer to such offences as breach of regime cases.

4. Breach of Regime Cases

4.1 Many offences, particularly in modern times, are defined by reference to a breach or failure to comply with a statutory regime.

Many examples could be given particularly from the regulatory field. It is, for example, frequently an offence to carry out certain

activities without an appropriate permission, licence or permit. The underlying activity is not, itself, unlawful. Rather it is the carrying

out of the activity concerned without the necessary permission that renders it unlawful. Likewise, persons carrying out certain types

of activities on foot of permissions, permits or licences are required, almost invariably, to comply with any relevant terms or conditions

of the measure concerned and may well be guilty of an offence for failure so to comply. Many other examples could be given.

4.2 At the level of broad generality it can be said, therefore, that there are Irish offences where, at least so far as Irish criminal law is

concerned, a necessary ingredient of the relevant offence requires a consideration of an Irish statutory regime. The broad question of

principle raised by the first issue certified by the trial judge is as to the proper approach, in the context of correspondence for EAW

purposes, which the court should take to such offences.

4.3 By definition it is improbable in the extreme that any offence specified in a EAW coming from a requesting country to Ireland would

make reference to the Irish statutory scheme. Irish statutory schemes apply to Ireland. Other countries will have their own schemes.

Save, perhaps, in very limited circumstances in some cases where both schemes derive directly from relevant provisions of European

Union law, it is unlikely in the extreme that the same scheme will apply in two different countries.

4.4 Strictly speaking, therefore, an Irish offence which involves, as an important ingredient, reference to an Irish statutory scheme,

cannot have a strict equivalent offence in any other country for the Irish statutory scheme will not apply in that other country even

though that requesting country may have its own (and perhaps quite similar) statutory regime. The broad point of principle raised in

the first certified issue is as to the proper approach of the court in those circumstances.

4.5 In that context counsel referred to the recent decision of the House of Lords in Norris v. Government of the United States of

America [2008] 1 A.C. 920. In that case, the United States sought to extradite the defendant, Mr. Norris, to stand trial on an

indictment containing four counts. The first count alleged that Mr. Norris had conspired with other producers of carbon products to

operate a price fixing agreement, contrary to US legislation. This was a strict liability offence. The second, third and fourth counts

alleged that Mr. Norris had conspired to obstruct the investigation of this offence. The Court was faced with the question of whether

those US offences were extradition offences for the purposes of s. 137 of the United Kingdom Extradition Act 2003.

4.6 In respect of the first count it was held that, under English law, some form of aggravating feature, for example, deception or

dishonesty, was necessary before a criminal sanction could attach to a person involved in a price-fixing agreement. Since no such

aggravating features were alleged by the US authorities in respect of the first count, Mr. Norris’ involvement could not amount to an

extradition offence.

4.7 In respect of the other three counts, counsel for Mr. Norris sought to rely on the proposition that, since Mr. Norris’s alleged

involvement in price-fixing would not have constituted an offence if it had occurred in England, it could not be an offence for him to

obstruct an investigation into that particular conduct. The House of Lords referred to a number of authorities in deciding the correct

approach to be adopted. A single judgment was delivered.

4.8 At para. 95 of Norris, the single judgment cited the opinion of Lord Millett in R (Al-Fawwaz) v Governor of Brixton Prison [2002] 1

AC 556. In that case, the United States sought the extradition of a Mr. Al-Fawwaz on charges of conspiring to murder American

citizens, officials, diplomats and others, both in the United States and elsewhere. Lord Millett, at paras. 109 -110, said the following:-

“Given that the court is concerned with an extradition case, the crime will not have been committed in England but

(normally) in the requesting state. So the test is applied by substituting England for the requesting state wherever the

name of the requesting state appears in the indictment. But no more should be changed than is necessary to give effect

to the fact that the court is dealing with an extradition case and not a domestic one. The word 'mutandis' is an essential

element in the concept; the court should not hypothesise more than necessary.

The one point to which I would draw attention is that it is not sufficient to substitute England for the territory of the requesting state

wherever that is mentioned in the indictment. It is necessary to effect an appropriate substitution for every circumstance connected

with the requesting state on which the jurisdiction is founded. In the present case the applicants are accused, not merely of

conspiring to murder persons abroad (who happen to be Americans), but of conspiring to murder persons unknown because they were

Americans. In political terms, what is alleged is a conspiracy entered into abroad to wage war on the United States by killing its

citizens, including its diplomats and other internationally protected persons, at home and abroad. Translating this into legal terms and

transposing it for the purpose of seeing whether such conduct would constitute a crime 'in England or within English jurisdiction', the

charges must be considered as if they alleged a conspiracy entered into abroad to kill British subjects, including internationally

protected persons, at home or abroad.”

4.9 Also, in Norris, reference was made to the Canadian case of In re Collins (No. 3) (1905) 10 CCC 80. The United States sought the

extradition of Mr. Collins on a charge of perjury alleged to have been committed in California. It was contended that extradition should

be refused on the basis that it was not unlawful under Canadian law to make a false deposition before a competent Californian tribunal

or officer. This argument was rejected by Duff J., who stated at pp. 100 - 101:-

“In the first place, the treaty itself, which, after all, is the controlling document in the case, speaks not of the acts of

the accused, but of the evidence of 'criminality,' and it seems to me that the fair and natural way to apply that is this—

you are to fasten your attention not upon the adventitious circumstances connected with the conduct of the accused,

but upon the essence of his acts, in their bearing upon the charge in question. And if you find that his acts so regarded

furnish the component elements of the imputed offence according to the law of this country, then that requirement of

the treaty is complied with… The substance of the criminality charged against the accused is not that he took a false

oath before AB but that he took a false oath before an officer who was authorized to administer the oath. Any other

view would, I conceive, simply make nonsense of the treaty.”

He continued at p. 103:-

“[I]f you are to conceive the accused as pursuing the conduct in question in this country, then along with him you are

to transplant his environment; and that environment must, I apprehend, include, so far as relevant, the local institutions

of the demanding country, the laws effecting the legal powers and rights, and fixing the legal character of the acts of

the persons concerned, always excepting, of course, the law supplying the definition of the crime which is charged.”

The House of Lords in Norris also referred to the Australian case of Riley v The Commonwealth of Australia (1985) 159 CLR 1, where

the same general approach was followed.

4.10 In light of these authorities, it was held in Norris that the proper approach was that outlined in In re Collins (No. 3). Applying

that approach, the House of Lords stated at paras. 99-101:-

“If, then, we ignore the adventitious circumstances connected with the conduct alleged against Mr Norris in counts 2-4

of the indictment and concentrate instead on the essence of his alleged acts, the substance of the criminality charged

against him is not that he obstructed the criminal investigation into price fixing in the carbon products industry being

carried out by the Pennsylvania grand jury, but that he obstructed the criminal investigation into that matter being

carried out by the duly appointed body. Making the necessary changes, we would have to translate counts 2-4 into

counts of obstructing in England a criminal investigation into price fixing in the carbon products industry being conducted

by the appropriate investigatory body in this country….

While price fixing in itself is not an offence under English law, Mr Norris accepts that, when combined with other

elements such as deliberate misrepresentation, it can lead to various offences such as fraud or conspiracy to defraud.

What the exact outcome of any investigation will be cannot be determined when it is in progress. Destroying documents

to prevent them falling into the hands of the investigators may well affect the outcome of that investigation and is,

indeed, intended to do so .So the mere fact that the result of the investigation in Mr Norris's case was a charge of

simple price fixing, which does not constitute an offence under English law, is no reason to hold that it would not have

been an offence under English law to obstruct the progress of an equivalent investigation by the appropriate body in this

country.”

4.11 It is important to express one word of caution at this stage. It is necessary, in order to consider the persuasive effect of

judgments from courts in other similar jurisdictions, to have all due regard to the extent to which the judgment concerned derived

from the specific wording of relevant legal measures applicable to the case in that other jurisdiction. To the extent, therefore, that

judgments from other common law jurisdictions are significantly influenced by the text of relevant constitutional, treaty or statutory

provisions which are not replicated in like provisions in this jurisdiction then all necessary care needs to be exercised to ensure that

reliance is not placed on decisions which amount to an interpretation of a legal measure which has no corresponding provision in Irish

law rather than an interpretation of general principles or an interpretation of foreign measures which closely resemble relevant Irish

provisions.

4.12 In that context it must at least be noted that part of the reasoning in In Re Collins derived from the specific wording of relevant

Canadian measures which do not appear to be close in their terminology to the legislative provisions which govern European Arrest

Warrants. However, the approach adopted by the House of Lords in Norris derives from a United Kingdom statutory regime which is

broadly similar to the regime with which this Court is concerned. The overall approach adopted by the House of Lords in Norris in the

case of breach of regime cases is, therefore, potentially of persuasive authority in considering the application of the European Arrest

Warrant provisions to such cases.

4.13 Without necessarily having to go so far as suggesting that Norris represents, exactly, the law in this jurisdiction, I am satisfied

that it is necessary to have proper regard to the fact that it is inherent in the concept of correspondence that the court is looking to

compare two offences from different jurisdictions. To take but a simple example, it might be unlawful to carry out certain types of

commercial activity without an appropriate permit from a relevant Irish Minister. An Irish criminal provision might make it an offence to

carry out the activity concerned without the relevant permit and the relevant provision would, doubtless, be specified by reference to

whatever statutory provision allowed for the permit to be granted by the Minister concerned. Assume there to be a very similar

provision in the legal system of a requesting country which required the same type of commercial activity to be carried out only with

the benefit of a permit by a relevant Minister in that other country. Could it be argued that there was a lack of correspondence in

such a case simply because the Irish offence specified that it was unlawful to carry out the relevant activity without a permit from

the Irish Minister, whereas the offence specified in an EAW, by reference to the law of the requesting country, made it a criminal

offence to carry on identical activity without a permit from the relevant Minister in the requesting country?

4.14 It is, of course, necessary to start with a consideration of s. 5 of the European Arrest Warrant Act, 2003 ("the 2003 Act"),

which provides for the basis on which a court is to consider correspondence. The section provides as follows:-

"For the purposes of this Act, an offence specified in a European Arrest Warrant corresponds to an offence under the

law of the State, where the act or omission that constitutes the offence as specified would, if committed in the State on

the date on which the European Arrest Warrant is issued, constitute an offence under the law of the State"

4.15 In addition, s. 5 must be viewed in the light of the Council Framework Decision (2002/584/JHA) on the European arrest warrant

and the surrender procedures between Member States, O.J. L190/1 18.7.2002, ("the Framework Decision") which provides that "For

offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European

Arrest Warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent

elements or however it is described" (see article 2.4). How then is the question of correspondence to be approached in the context

of what I have described as breach of regime cases? The difficulty with such cases is that the acts or omissions which are rendered

an offence only constitute an offence because of some failure to comply with the terms of the specified Irish regime. For example, in

the scenario noted earlier, the carrying out of commercial activity which may require some form of licence is not in itself unlawful. It is

only the carrying out of the relevant activity without the necessary licence that is unlawful. The act, in such a case, which

constitutes the offence is not the carrying out of the relevant activity but that activity being carried out without a relevant

permission. But can it be said that there is correspondence where the omission, being the absence of permission in the requesting

state, derives from a regime applying in that state which has, almost by definition, no direct application in Ireland?

4.16 It is clear that the 2003 Act must be interpreted in a manner consistent with the Framework Decision, insofar as possible, see

The Minister for Justice, Equality and Law Reform v. Altaravicius [2006] 3 I.R. 148 and The Minister for Justice, Equality and Law

Reform v. Brennan [2007] 3 I.R. 723.

4.17 In Attorney General v. Dyer [2004] 1 I.R. 40, Fennelly J. re-emphasised the principle, which can be traced back to State

(Furlong) v. Kelly [1970] I.R. 132, to the effect that the comparison which requires to be conducted in order to determine

correspondence is to be based on the acts or omissions which are said to constitute the offence. It should, of course, be noted that

both Dyer and Furlong were decided under the Extradition Act, 1965. It also needs to be noted that the provisions of the Framework

Decision permit, but do not require, a Member State to legislate in a manner, in some cases, that precludes surrender unless "the

acts" specified in the EAW offence constitute an offence under the law of the executing Member State. That permissive provision of

the Framework Decision was adopted in Ireland and finds expression in s.5 of the 2003 Act. Thus the Framework Decision permits, and

Ireland has adopted, a regime which requires correspondence (save in those cases expressly covered by para.2 of the Framework

Decision) where correspondence is to be viewed by reference to "the acts" which constitute the respective offences. There is not,

therefore, any material difference, so far as correspondence is concerned, between the law as it stood under the 1965 Act and the

law as it now stands under the 2003 Act.

4.18 How then should one view an offence, which in Ireland is specified as occurring only by reference to non-compliance with an

Irish statutory regime? To interpret the requirement of correspondence in a way which would exclude the possibility of

correspondence in cases where the relevant Irish offence was defined by reference to compliance with or breach of an Irish statutory

regime and where the offence in the requesting state did not also make reference to the relevant Irish statutory scheme would, as a

matter of reality, exclude from the ambit of correspondence any offences which come within the scope of what I have described as

breach of regime cases.

4.19 It does not seem to me that such was the intention of the Oireachtas or, indeed, the Framework Decision. The proper approach

is to regard an Irish regime case as amounting, for the purposes of correspondence and of s. 5 of the 2003 Act, to an offence where

the act or omission concerned is defined by reference to a lawful regime rather than the specific Irish regime. Where, therefore, the

offence specified in the relevant European Arrest Warrant involves the same acts or omissions by reference to a regime in the

requesting state then, at least at the level of principle, correspondence can be established provided that there is a sufficient

similarity between the respective regimes to justify the conclusion that the substance of the acts or omissions which amount to

offences in the respective jurisdictions is the same even though the specific relevant regimes will necessarily be, as a matter of law,

different, emanating as they will from the legal systems of the two separate jurisdictions.

4.20 Where, therefore, the court has to consider correspondence in such cases it seems to me that the question which the court

must ask itself is as to whether the respective regimes meet that test. Are the two regimes, as a matter of substance, sufficiently

similar that it can properly be said that acts or omissions which are rendered criminally unlawful by reference to those two regimes

must in themselves be regarded as corresponding wrongdoing?

4.21 In that sense it seems to me that the first certified issue must be answered by determining that, where compliance with or

breach of an Irish statutory provision is an ingredient of an offence in this State such offence is, at the level of principle, capable of

amounting to a corresponding offence for the purposes of s. 5 of the 2003 Act provided that the relevant statutory provision or

regime by reference to which the Irish offence is defined is sufficiently similar to an equivalent regime in the requesting state by

reference to which the offence in the requesting state is defined. Against that view on the broad principle it is necessary to address

the specifics of this case. However, in so doing it seems to me to be appropriate to commence by considering the proper construction

of s. 6(2) of the 1960 Act for it is necessary to have a clear view of the ambit of that offence before approaching the question of

correspondence.

5 The Interpretation of Section 6(2) of the 1960 Act

5.1 As noted earlier the difference between the parties on this question arose out of the submission made on behalf of the Minister to

the effect that s. 6(2) was wider in ambit and had wider application than the circumstances deemed to constitute being unlawfully at

large as specified in s. 6(1).

5.2 In that context it is important to recall that the principal focus of the 1960 Act was to introduce a regime of temporary release

and to back-up that regime by imposing sanctions on those who failed to comply with the terms of their release under the scheme. If

the offence created by s. 6(2) had not been included in the legislation then it would, of course, have remained the case that a

person released on temporary release could have been arrested and brought back to prison either because they were in breach of any

relevant terms of their release or because they had failed to return to prison after the period of temporary release afforded them had

expired. However, in such an eventuality, it might be said that the person was not really any worse off because of their breach of the

terms of their temporary release. Such a person would only be required to serve the balance of the sentence which had been imposed

on them in the first place with no added sanction. It seems clear that the intent of the Oireachtas, in enacting s. 6(2), was to

provide for the potentiality of an additional sanction above and beyond being required to serve the balance of the sentence which

would have applied in any event, so as to discourage failure to comply with the temporary release regime.

5.3 Such an analysis is consistent with the narrower view of s. 6(2). On that basis the intent of the Oireachtas was to provide

support for the temporary release scheme by providing for additional sanctions on those who abused it. While s. 6(1) is only a

deeming section and thus gives rise to the possibility, at least in theory, that there might be other cases which would come within s.

6(2) beyond those specified in s. 6(1), it seems to me that, in the context of the 1960 Act as a whole, it is not appropriate to infer

that the Oireachtas intended to create a wide-ranging and new criminal offence which would be committed by any person who was

out of prison at a time when, as a matter of law, that person should be in prison, irrespective of whether the circumstances leading

to that situation had anything to do with the temporary release regime. It must be recalled that s. 6(2) is a penal section creating a

criminal offence. Had the Oireachtas intended s. 6(2) to have had the wider ambit contended for on behalf of the Minister, then it

seems to me that, in order to provide some degree of certainty as to its parameters, it would have been necessary for the legislation

to provide some guidance as to what the general meaning of unlawfully at large ought be, or the criteria by reference to which a

court could judge whether a person could properly be said to be caught by that term. In the absence of any such guidance, s. 6(2)

would, in my view, be impermissibly vague.

5.4 It seems to me to follow that the proper construction of s. 6(2) is that persons can only be guilty of an offence under that

section if they come within the deemed definition requirements set out in s. 6(1). It was, of course, quite properly accepted by

counsel for the Minister that s. 6(1)(b) could have no application to the facts of this case. For the purposes of this case, therefore, it

seems to me that the relevant offence is committed by a person who, by reason of having been temporarily released under ss.2 and.3

of the 1960 Act, is at large after the period for which he or she was temporarily released had expired. The question which must be

addressed, therefore, is as to whether there is correspondence between the offence specified in article 242 paragraph 3 of the Polish

Criminal Code and the offence specified having regard to the proper interpretation of s. 6 of the 1960 Act in the manner which I have

identified.

5.5 Against that background it is necessary to turn to a comparison between the respective Irish and Polish offences and, in

particular, any differences which might be said to lie between them.

6 Discussion

6.1 For the reasons set out earlier in this judgment, I have concluded that there is no reason in principle why correspondence may

not be established between offences in the requesting and executing states respectively, which are specified by reference to the

provisions of statutory regimes applying in those respective states even though, by definition, the statutory regimes are different as a

matter of law stemming, as they do, from two different jurisdictions. It follows that the mere fact that article 242 paragraph 3 of the

Polish Criminal Code is concerned with a different (and Polish) statutory regime compared with s. 6 of the 1960 Act which is

concerned with the Irish regime for temporary release does not, of itself, necessarily lead to the conclusion that there can be no

correspondence between the respective offences created by those two provisions.

6.2 The real question which must be asked is as to whether those statutory regimes themselves are sufficiently similar so that breach

of one may be taken to correspond to breach of the other even though the schemes are not, for obvious reasons, the same scheme.

6.3 The starting point has to be to note that there are obvious similarities between the two schemes. Both clearly provide for

circumstances in which a convicted person, during the currency of a sentence of imprisonment, is entitled to be at large as a result of

a decision of a competent body. In both cases, the breach alleged is failing to go back to prison when the period during which the

prisoner is lawfully out of prison has expired. What then are the differences between the two regimes?

6.4 At what might be regarded as a relatively trivial level, the terminology used in respect of the permission to remain lawfully outside

prison is different. Section 6 of the 1960 Act speaks of a period of temporary release while article 242 paragraph 3 of the Polish

Criminal Code speaks of a break in carrying out a penalty. However, it seems to me that there is no material difference whatsoever

between those two concepts. Both are concerned, however described, with a period of lawful absence from prison during the

currency of an imposed prison term.

6.5 The first area where there might be said to be a material difference is the identity of the type of authority which has power to

give permission to be absent from prison. It is clear that, under the 1960 Act, permission for temporary release is given by the

Minister. As pointed out earlier, it is clear that on the facts of this case the permission for the break from the penalty of imprisonment

which operated in the Polish statutory regime was granted by a court. As also noted earlier, there was insufficient information before

this court to form a view as to whether such a break can only be granted by a court, so far as the Polish Criminal Code is concerned,

or whether there are other bodies which have that authority.

6.6 I am not persuaded that the difference in the identity of the person or body which has lawful authority to allow a temporary

release or break, as the case may be, is of sufficient materiality to render the two statutory regimes sufficiently different so as to

exclude correspondence. The range of persons or bodies who may have decision-making power in respect of statutory regimes can

vary enormously. Sometimes, as with Irish temporary release, the decision-maker may be a political office holder. Sometimes, for

example, such as, on the facts of this case, applies under article 242 paragraph 3 of the Polish Criminal Code, the decision-maker may

be a court. In other circumstances, the decision-maker may be a quasi judicial tribunal or a statutory body. Within each of those

groups there can, of course, be variations in the designated decision-maker from country to country, so that even if the same type of

person or body has decision-making power the precise identity of the person or body may vary. A decision in one country may rest

with a Minister for Health whereas the same decision in a largely identical statutory regime in another country may rest with a Minister

for the Environment. Even the precise parameters of the remit of Ministers and governmental departments, let alone statutory officers

or bodies, varies enormously from state to state. The breadth of the remit of statutory bodies or quasi judicial tribunals can vary

greatly. There will often not be an exact correspondence between such persons or bodies however described from one country to

another.

6.7 There may, in some cases, be a question as to whether the identity of the person or body involved in a relevant statutory regime

may itself be material to the question of whether correspondence can be made out. For example, the law of one country might

specify that a certain type of inappropriate communication with a relevant judicial office holder might be an offence but not make like

provision in respect of quasi judicial tribunals. A second country might take a broader view of the offence and apply it to a wide range

of decision-makers. In those circumstances, there might be a real question of correspondence in the event that a person was

charged, in the country which operated the wider remit, with inappropriate communication with a tribunal in circumstances where

such communication would only be unlawful in the requested state if made to a judicial office holder. In such circumstances there may

be questions as to whether there is a sufficient similarity between the respective statutory regimes so as to raise questions as to

whether the acts or omissions which constitute an offence by reference to those respective regimes can be said to give rise to

corresponding offences.

6.8 However, it seems to me that no such difficulties arise on the facts of this case. The power to release is simply given to different

types of public office holders in, respectively, Poland and Ireland. The fact that it happens to be a judge in one jurisdiction and a

minister in another does not, in my view, give rise to any material distinction between the two regimes. The fact remains that both

regimes make provision for a temporary release or break during a custodial sentence and provide a designated person who is entitled

to make a decision as to whether that release or break should be allowed. Those regimes make it an offence not to return to prison at

the end of a fixed period release or break. For those reasons, it does not seem to me that the difference in identity between the

person or body having power to allow the release or break creates a material difference.

6.9 That leads to what, in my view, is the most difficult aspect of the case. In the light of the interpretation which I have placed on

s. 6(2) of the 1960 Act, I am satisfied that the only circumstances in which a person can be said to be in breach of that section is if

the person has been in breach of a temporary release permitted under the provisions of ss.2 and 3 of that Act. Put another way, a

person who is not in prison when they should be for reasons other than breach of temporary release (such as escape) is not guilty of

an offence under s. 6(2) although they may well, of course, be guilty of other offences. That analysis raises a question as to whether

there is any other form of release or break in the service of a prison sentence which is lawfully available in Ireland but which does not

come within the terms of the 1960 Act. The reason why that question might be relevant is that it is argued on behalf of Mr. Szall that

the 1960 Act governs some, but not all, of those cases where a person may be in breach of an obligation to return to prison following

on from a period when that person was lawfully excused from being in prison. On that basis it was argued on behalf of Mr. Szall that,

even if, contrary to the primary submission advanced on his behalf, it is necessary to compare the respective Irish and Polish regimes,

any such comparison leads to the conclusion that there are significant differences between same which go beyond the mere identity

of the relevant lawful authority in the respective jurisdictions.

6.10 I have to say that it is not immediately apparent that there is any other lawful basis on which a person can be temporarily

absolved from an obligation to serve a prison sentence imposed by a court of competent jurisdiction beyond the temporary release

provisions of the 1960 Act. It is true that there are cases where a judge, in imposing sentence, postpones the commencement of the

sentence (normally by directing that the order of imprisonment be delayed or stayed for an appropriate period) for reasons such as to

afford the convicted person an opportunity to put their affairs in order before going into prison. However, such an arrangement is not

concerned with a release or break from a sentence already commenced, but rather is concerned with when the sentence is to

commence in the first place.

6.11 There was some debate at the hearing before this court as to whether a sentencing judge retained, either at the time of

sentence or thereafter, any discretion to permit a temporary break in the service of a sentence imposed. Without deciding the point, I

remain unconvinced that any such jurisdiction does exist. Even if such a jurisdiction exists, it is one which is, in practice, most

sparingly exercised. It is my understanding that most sentencing judges, if asked to provide for some specified period of temporary

release (for example, to allow for attendance at a particular occasion) are likely to indicate that such decisions are a matter for the

executive and, in any event, sentencing judges would be most unlikely to go beyond making an informal recommendation in such

circumstances that favourable consideration might be given by the executive to an application for such release.

6.12 It is, therefore, in my view, reasonable to conclude that the circumstances in which a person can be temporarily but lawfully

absent from prison during the currency of a sentence in Ireland are either exclusively to be found in the 1960 Act or, as a matter of

almost universal practise, come within that statute. In those circumstances, I am satisfied that there is a broad and close

correspondence between the temporary release provisions of the 1960 Act and the break in carrying out a penalty provisions of

article 242 paragraph 3 of the Polish Criminal Code. I am satisfied that those similarities are sufficient to render the acts or omissions

which constitute a breach of the respective temporary release or break provisions substantially the same so as to satisfy the

requirements of s. 5 of the 2003 Act.

7 Conclusion

7.1 For those reasons, I am satisfied that there is a correspondence, in the sense in which that term is used in the 2003 Act,

between the offence of being unlawfully at large under s. 6(2) of the 1960 Act, on the one hand, and the offence of failing to return

to detention after a break in carrying out a penalty provided for in article 242 paragraph 3 of the Polish Criminal Code.

7.2 It follows, therefore, that there is a corresponding offence in Irish law to the offence specified at paragraph VI of the EAW and on

that basis that there are corresponding offences to each of the Polish offences specified in the EAW.

7.3 It follows, therefore, that there is a corresponding offence in Irish law to the offence specified at paragraph VI of the EAW and on

that basis that there are corresponding offences to each of the Polish offences specified in the EAW.

7.4 Correspondence having been established and its absence being the only ground for opposition to an order for surrender which

remained live at the time of the appeal before this court, it follows, in my view, that the appeal of the Minister should be allowed. The

court was told that there is a remaining issue outstanding relevant to the question of whether Mr. Szall should be surrendered. That

issue was not determined by the High Court in the light of the decision reached to decline to direct the surrender of Mr. Szall on the

grounds overturned by this appeal. In those circumstances the case should be remitted back to the High Court for further

consideration.