Extradition appeal dismissed; offence must be wholly committed in Ireland to bar surrender under s. 15.

THE COURT OF APPEAL

RECORD NUMBER: 2015/164 CA

Peart J.

Hogan J.

Costello J.

IN THE MATTER OF PART II OF THE EXTRADITION ACT, 1965,

AS AMENDED

BETWEEN:

ATTORNEY GENERAL

APPLICANT/RESPONDENT

AND

PATRICK LEE

RESPONDENT/APPELLANT

JUDGMENT OF MR JUSTICE MICHAEL PEART ON THE 20TH DAY OF APRIL 2016:

1. By Order made and perfected on the 23rd March 2015, Edwards J. being satisfied of the matters referred to in s. 29 of the

Extradition Act, 1965 ordered inter alia that the appellant be committed to prison to await the order of the Minister for his extradition

pursuant to a request made by the United States of America on the 15th August 2011 for the purpose of a trial there in respect of 51

alleged counts, being 29 counts of Wire Fraud, 6 counts of Unlawful Money Transactions, and 16 counts of Aggravated Identity

Theft.

2. No element of any of the offences is alleged to have been committed outside the territory of the United States of America, and

specifically for the purposes of this appeal in the State (i.e. Ireland), even though it has been established by the appellant that on

the dates on which it is alleged that a small number of the offences were committed he was outside the United States, and in all

likelihood in the State.

3. Nevertheless the single ground of appeal being pursued by the appellant is that his extradition in respect of all the alleged offences

is prohibited under s. 15 of the Act of 1965, as originally enacted which provides:-

“15. – Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State

as having been committed in the State”. [Emphasis added]

4. I should mention in passing that a new s. 15 has been substituted by s. 27 of the European Arrest Warrant (Application to Third

Countries and Amendment) and Extradition (Amendment) Act 2012, but it is the original section which is in play in the present

proceedings, since the amended section only came into effect some eleven months after the date of the Request for extradition of

the appellant.

5. Section 15 gives effect to Article 7 of the European Convention on Extradition of 13th December 1957 which provides:-

“Article 7 – Place of Commission:

1. The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as

having been committed in whole or in part in its territory or in a place treated as its territory.

2. When the offence for which extradition is requested has been committed outside the territory of the requesting

Party, extradition may only be refused if 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.”

6. Given the terms of s. 15 of the Act of 1965 the net question for determination is whether the offences for which the appellant’s

extradition is requested are offences which under the law of the State are regarded as having been committed in the State, even

though the authorities in the U.S. do not allege that any element of any of the offences was committed outside the U.S..

7. Essentially the counts for which his extradition is sought arise from what the prosecutor alleges was a mortgage fraud scheme

perpetrated in the United States by the appellant between July 2005 and May 2007. This allegation is summarised very briefly at para.

4 of the affidavit sworn by Sandra Bower on the 26th April 2011 as follows:-

“In summary, Lee and others bought multi-family properties in Massachusetts and converted them into condominiums;

“straw buyers” (i.e. individuals who take title to real estate and in whose name mortgage loans are secured for those

purchases, but who have no intention to live in the properties or to repay the mortgage loans) were recruited to

purchase the condominium units; and lenders issued mortgage loans based on false information about the straw buyers

and the properties, including forged real estate appraisals prepared by Mr Lee. After the transactions closed, Lee and his

associates shared in the proceeds of the loans, the mortgages went unpaid and the properties were foreclosed. Lee

received about $1 million in gross receipts for his participation in the scheme”.

8. The same affidavit sets out an extensive account of how this mortgage fraud is alleged to have been planned and executed, and

the trial judge’s judgment contains a large extract from same. It is unnecessary for me to set out that same detail in the present

judgment. Neither is it necessary to set out the full detail of the offences comprised within the three groups of offences, as the trial

judge has helpfully done.

9. The ground of appeal now relied upon has its genesis in Point of Objection 9 raised in the High Court in the following terms:

“9. Without prejudice to the foregoing some of the allegations in the extradition request the subject matter of the within

proceedings refer to alleged offences committed whilst the Respondent was present and residing in Ireland and as such

it is alleged the acts were committed inside the territory [of the] requested State, Ireland.”

10. As noted by the trial judge in his judgment at para. 5.2, the appellant was with the leave of the court permitted to argue this

ground on an expanded basis namely:

“That all of the offences the subject matter of the request are not extraditable offences in that the territoriality bar

created by s. 15 of the Act of 1965 as originally enacted applies to all of the offences in this case, and not just those

covered by Ground 9 as originally pleaded, i.e. those committed when the respondent was outside of the requesting

state”.

11. The essence of the objection raised under s. 15 of the Act of 1965, and which is the subject of the appeal now, is if the

offence(s) for which extradition is sought is/are offences which because they were committed in the State or are regarded as having

been committed in the State, are capable of being prosecuted by the DPP in the State, then extradition was prohibited. The trial

judge noted in his judgment that under the expanded ground permitted the Court had to consider whether the appellant was alleged

to have committed the alleged offences under Irish law as opposed to necessarily committing them in the State. He went on to state

that it was being contended that offences in respect of which this State claims an extra-territorial jurisdiction qualify as offences

which are in the words of s. 15 “regarded under the law of the State as having been committed in the State”, and that in this regard

that question must be considered by reference to the date upon which the Request for extradition is made, and not by reference to

the date upon which the offences are alleged to have been committed. In other words, the Court must consider whether the offences

said to have been committed in the period 2006-2007 give rise to offences in respect of which the State claims an extra-territorial

jurisdiction as of 11th August 2011.

12. In this regard the appellant relies upon offences created by sections 71, 71A, and 72 of the Criminal Justice Act 2006, as

amended by the Criminal Justice (Amendment) Act, 2009 (effective from 22nd July 2009), read in conjunction with s. 74 of the same

Act, and/or also an offence under s. 7 of the Criminal Justice (Money Laundering and Terrorist Offences) Act, 2010 (commenced 15th

July 2010). He submits, as he did in the High Court, that offences committed under these provisions are prosecutable in the State

even though they were committed in another state, since Ireland has asserted an extra-territorial jurisdiction in respect of such

offences by the date of this Request for extradition on 11th August 2011.

13. It is important at this point to state that the issue in controversy must not be confused or conflated with the issue of

correspondence which is dealt with under s. 10 of the Act of 1965. Before extradition may be ordered correspondence, or double

criminality as it is sometimes referred to, must be established. This means that it must be established that the acts or omissions

alleged to give rise to the offences for which extradition is sought would, if committed in this State on the date of the Request, give

rise to an offence in the State. A person may not be extradited to face trial for an act or omission allegedly committed by him in the

requesting state which is not a criminal act or omission if done in this State. The extra-territoriality bar under s. 15 fulfils a very

different purpose. Where an act committed outside the State is “regarded under the law of the State as having been committed in

the State”, extradition is prohibited not because the act is not criminal under Irish law as in the case of a lack of correspondence or

double criminality, but rather because (a) it is a criminal act under Irish law, and (b) it is regarded as having been committed in the

State (e.g. because it occurred on an Irish registered ship or Irish registered aircraft outside the State at the time) and for that

reason the offence may be prosecuted in this State by the DPP should she so decide. As the trial judge pointed out in his judgment,

there is an important distinction to be made between an offence which is regarded as having been committed in the State, and an

offence committed in another state over which some extra-territorial jurisdiction to prosecute it is claimed under Irish law. In the

latter case there is no question of the offence being regarded as having been committed in the State. It is one clearly committed

outside the State, but in respect of which under Irish law a jurisdiction is retained to prosecute it.

14. As far as correspondence is concerned, the trial judge was satisfied that each of the offences for which extradition is sought in

the Request corresponded to an offence in the State for the purpose of s. 10 of the Act. While that finding is not the subject of the

present appeal, the argument in relation to the extra-territoriality issue in this appeal was linked to some extent to the question of

correspondence. This is so in circumstances where for the purposes of establishing correspondence for each of the three groups of

offences, the Attorney General, as applicant, put up a number of candidate offences here including offences under s. 72 of the Act of

2006 as amended, already referred, and even though the trial judge was satisfied to find correspondence established by only one of

the candidate offences put up for his consideration, he stated that for each group of offences correspondence can be established by

each of the candidates offered. The appellant relies to an extent on the fact that the offence under s. 72 of the Act of 2006 was

therefore found to correspond for the purpose of s. 10 of the Act of 1965, and argues that the respondent cannot at the same time

argue for the purposes of s. 15 of the same Act, that it does not. That suffices for the moment to indicate the scope for some

confusion or conflation of the two issues – correspondence and extra-territoriality.

15. The first question that arises is whether the s. 15 issue must be considered by reference to the law as it stood at the date(s) on

which the alleged offences were committed i.e. between July 2005 – May 2007, or as it stood at the date on which the Request for

extradition was received from the United States i.e. 11th August 2011. The trial judge addressed this question fully between

paragraphs 8.9 – 8. 20 and concluded that the relevant date was the date of the alleged offences. At paragraph 8.18 et seq. he

concluded as follows:

“8.18. It is clear to this Court that when Article 7 of the 1957 Convention is considered in aid of the interpretation of s.

15, which is in any event clear in its terms, that section is concerned with a territoriality exception or bar to extradition

i.e. that extradition shall not be granted where ‘the offence’ (in terms of the offending conduct constituting the offence)

is committed in the State, or in a place regarded under the law of the State as being within the territory of the State.

8.19. However, that is not the same thing as saying that in any case where Ireland asserts extra-territorial jurisdiction

s. 15 is engaged. That is simply not so because Ireland does not assert extra-territorial jurisdiction solely, or even

mainly, on the basis that offences committed abroad are regarded under the law of the State as having been committed

within the territory of the State. In particular, it does not do so in the case of the extra-territorial jurisdiction in respect

of offences contrary to sections 71, 71A, 72 of the Act of 2006, as amended by the Act of 2009 and/or s. 7 of the Act of

2010 (assuming just for the purposes of the argument that they are capable of being relied upon by the respondent).

8.20. This Court has further concluded that the respondent cannot in fact seek to rely on [sections] 71, 71A, 72 of the

Act of 2006, as amended by the Act of 2009 and/or s. 7 of the Act of 2010, because neither the Act of 2009 nor the Act

of 2010, had been enacted when the offending conduct that now constitutes the offences the subject matter of the

present extradition request was committed. As the applicant has pointed out, there is a constitutional prohibition on the

retrospective penalisation of conduct. While thirty of the fifty one alleged offences, i.e. counts 6-10, 15-23, 29-33, 38-

39, 43-49 and 54-55 were committed after 1st August 2006, the date on which the Act of 2006 came into force, s. 71

and 72 of that Act, as originally enacted, were much more restricted in their scope than they were post the

amendments effected by the Act of 2009. In addition s. 71A of the Act of 2006 was only inserted by the Act of 2009.”

16. In my view the trial judge was correct to conclude that for a consideration of s. 15 the relevant law of the State must be the law

as it stood at the date(s) of the alleged offences, since unlike s.10 (correspondence) the purpose of the prohibition on extradition in

respect of an act regarded by the law of the State as having been committed in the State, even though not actually committed

within the national territory as such, is to enable the DPP to prosecute the offence here, should she wish to do so. For that reason it

cannot be the case that the Court would consider whether the act in question was an offence under Irish law on any date later than

that on which it was allegedly committed, since that would be to retrospectively criminalise an act that was lawful on the date of its

commission. As the trial judge pointed out, this would be constitutionally impermissible.

17. In his judgment, the trial judge looked at the provisions of s. 71 of the Act of 2006 as originally enacted, being the section as it

existed at the date of the alleged offences, in the context of the appellant’s argument that it creates an extra-territorial offence

which fits the allegations against the appellant, and is therefore captured by the s. 15 prohibition on surrender. It is one of the

sections upon which the appellant relies for his argument that these offences for which extradition is requested come within the s. 15

prohibition on extradition. He relies also on s. 74 of the Act of 2006 which I shall come to.

18. Before proceeding further, I should make clear that it is no part of the case alleged against the appellant by the U.S. prosecutor

that any part of the offences with which he is charged in the U.S. was done in Ireland or in any location or place that could be

regarded as being Ireland. Neither is the appellant charged with any count of conspiracy to commit a criminal offence, even though

there is no doubt that there were others allegedly involved with him in the mortgage fraud giving rise to the charges against the

appellant.

19. Section 71 as originally enacted provides under a heading “Offence of conspiracy” as follows as relevant:-

"71(1) Subject to subsections (2) and (3), a person who conspires, whether in the State or elsewhere, with one or more persons to

do an act:-

(a) in the State that constitutes a serious offence, or

(b) in a place outside the State that constitutes a serious offence under the law of that place and which would, if

done in the State, constitute a serious offence

is guilty of an offence irrespective of whether such act actually takes place or not.

(2) Subsection (1) applies to a conspiracy committed outside the State if –

(a) …

(b) …

(c) … or

(d) the conspiracy is committed by an Irish citizen ….

(3) Subsection (1) shall also apply to a conspiracy committed outside the State in circumstances other than those

referred to in subsection (2), but in that case the [DPP] may not take, or consent to the taking of, proceedings for an

offence under subsection (1) except in accordance with section 74 (3).

(4) …

(5) … ”

20. I repeat that it is no part of the U.S. case against the appellant that he took part in any conspiracy with another or others to

commit wire fraud, engage in unlawful money transactions or aggravated identity theft. The charges against him are not such

inchoate offences. He is not charged with conspiracy. He is charged with those substantive offences committed solely in the U.S.

21. In my view the mere fact that there is on the statute books here an offence of conspiracy to do a criminal act in a place outside

the State, and regardless of whether that conspiracy takes place here or elsewhere, and that this applies in certain circumstances

including as in this case where the perpetrator is an Irish citizen, does not mean that this State enjoys a jurisdiction to try the

substantive offences with which the appellant is charged where, though he is an Irish citizen, all the acts constituting the offences

were allegedly committed only in the U.S. The State has not laid claim to any such wide extra-territorial jurisdiction over substantive

offences committed outside the State, even where they are committed by an Irish citizen. What exists are some provisions which

create for example the offence of conspiracy where that conspiracy may have been hatched abroad and to do some criminal act

abroad by an Irish citizen. Such an offence may be prosecuted here by the DPP. That, as I have said, is very different from an

offence committed in the State, or in a location regarded under Irish law as having been committed in the State. As the trial judge

stated in his judgment at paragraph 8.23::-

“that does not mean that the actions are regarded under the law of the State as having been committed in the State; it

merely makes such extra-territorial actions on the part of an accused an extra-territorial criminal offence in the State”.

22. In so far as the appellant relies in similar vein upon the offence created by s. 72 of the Act of 2006, I agree with the trial judge

that it does not avail the appellant since it is not alleged against him that he did in the State any act for the purpose of enhancing

the ability of any other person to commit or facilitate a serious offence in a place outside the State. Even if one accepts the

evidence as a matter of probability that between 29th March 2007 and 24th June 2007 (being dates on which it is alleged that some

offences were committed) the appellant was in this State, that does not mean that he must be assumed to have done some act here

by which the fraud or other of the offences were advanced. No such allegation is made against him. This Court must confine itself to

the facts alleged in the Request for extradition, and not assume other facts.

23. It is also necessary to look at s. 74 of the Act of 2006. It does not matter for present purposes whether one looks at it as first

enacted, or in its amended form by virtue of s. 11 of the Act of 2009 since the part relied upon by the appellant is common to both.

Section 74(1) as first enacted provided:

“74. (1) Proceedings for an offence under section 71 or 72 in relation to an act committed outside the State may be

taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in

that place. [Emphasis added]

24. The trial judge stated that his analysis of the offence created by s. 71 and the conclusion which he reached that the offence did

not come within the s. 15 exception to extradition was supported by the terms of s. 74 above. The appellant on the contrary submits

that it supports his argument regarding extra territoriality and that in particular the words “may for all incidental purposes be treated

as having been committed in that place” should be widely interpreted so as to include ‘for the purpose of extradition’. It is submitted

that proceedings for extradition is within a broad meaning of “incidental purposes”. I cannot agree with that submission. I agree with

the trial judge’s conclusion in this regard.

25. In my view the only sensible way of considering the phrase “for all incidental purposes” is to do so by viewing it in the context of

that section, and not as some phrase thrown in for some general and unspecified purpose. The phrase is first of all preceded by the

conjunction “and” which clearly indicates that its purpose and meaning is connected or linked to what goes before. What goes before

is a reference to an offence under section 71 or 72. I have described such offences already and I will not repeat what I have said as

to the nature of those offences. But given my conclusion as to the nature of the offence under s. 71, where a person may have

conspired with others somewhere outside the State to do some act outside the State which constitutes a serious offence both in

that other place and under the law of the State, and where the DPP decides to bring a prosecution in respect of the offence, it is

necessary and logical that for procedural purposes related to prosecuting the offence there be a provision such as s. 74 so that the

person after he/she has been arrested may be lawfully brought before a District Court, and charged with the offence. Without s.74 it

would not be possible to know which District Court would have jurisdiction to deal with the matter for the purposes of remand, book

of evidence, return for trial and so forth since the offence will not by definition have been committed within any particular District.

Those are purposes which are very clearly “incidental” to the proceedings being brought in respect of the offence. The use of the

conjunction “and” makes it very clear that the “incidental purposes” are purposes which are incidental to such a prosecution. In my

view the meaning contended for by the appellant is contrived, and would go far beyond the clear context in which the phrase is used

in the section. If the appellant’s meaning was correct it would render the word “incidental” superfluous, since the phrase “all

purposes” might equally have been used. All the words chosen by the Oireachtas must be given a meaning, and in my view the use of

the word “incidental” has a limiting effect, and that limitation is to the context of the section, and therefore to the proceedings

referred to in the section. No absurdity results. The meaning is clear and necessary, and emerges from the very words used.

26. The Court has been referred to the judgment of McKechnie J. in Attorney General v. Pocevicius [2015] IESC 59. The Attorney

General submits that the case is on all fours with the present case and supports the conclusions reached by the trial judge. The

appellant submits that the decision is one reached ‘per incuriam’, given that there is no reference in the judgment to the decision of

the High Court in Attorney General v. Garland []IEHC 90, and it does not appear from the judgment that the s. 15 issue was fully

argued. It is submitted that if on the other hand the decision in Pocevicius is to be regarded as correct and binding, then the decision

of the High Court in Garland must be wrong, but that if so it is surprising that the Attorney General did not appeal that decision.

27. In my view, though the Court has been informed by the Attorney General that in Pocevicius her written submissions to the

Supreme Court referred to the Garland case, the latter is distinguishable on its facts from the former. The same issue under s. 15 of

the Act of 1965 arose, but the offences at issue were very different. In particular, unlike Pocevicius and indeed unlike the present

case, the offence in Garland was of conspiracy to commit counterfeit acts outside the territory of the United States. It is so different

a factual background that it is unsurprising that it is not referred to in the judgment of McKechnie J. in Pocevicius in the Supreme

Court. It was of little or no relevance, and I reject any suggestion that the judgment in Pocevicius is ‘per incuriam’ on that account.

28. The facts in Pocevicius are materially similar to the present case, and support the conclusions of the trial judge in the present

case which were reached before the delivery of judgment in the Supreme Court in Pocevicius. It was never suggested by the

Norwegian authorities that while he was in Ireland he did any act in connection with the offence for which his extradition was sought.

The same can be said in the present case. It is also noted by McKechnie J. in his judgment that the authorities in Norway had never

stated that they intended to prosecute him even if the offence was committed while he was in Ireland. He stated his conclusions on

the s. 15 issue as follows:

"68. From the evidence it is clear that Norway is not suggesting that whilst in Ireland, the respondent committed any

act or engaged in any action referable to the subject offence. Further they have never stated that they intend to

prosecute him even if the offence was committed in Ireland. Section 15 of the 1965 Act would not permit this. What

they are saying however is that even if the evidence does not establish that he was in Norway on the relevant date,

they are nonetheless entitled to and 10 the prosecution against on the charge(s) as outlined. I believe they are so

entitled and that s. 15 of the Act is no bar to extradition by reason of same.

69. The net issue on this ground of objection is whether the offence for which the respondent’s surrender is sought is

regarded under Irish law as having been committed in the State. If it is, he cannot be extradited under s. 15 of the 1965

Act.

70. What is immediately striking about the section [old s. 15] is its specific reference to the subject offence having been

“committed” in this jurisdiction: it therefore covers such circumstance, but no other. This means that the section is no

bar to extradition if an offence is “prosecutable” here or indeed even, if the offence is “prosecutable” in this jurisdiction.

It only prohibits extradition if the specific offence, for which extradition is sought, has been committed here.

“Committed” in this sense must mean committed “wholly” or “entirely” in Ireland. Therefore, even if elements of the

offence were said to have been carried out in Ireland, this would not be sufficient to invoke the provisions of the

section.”

29. I agree with the Attorney General’s submission that in fact s. 15 is not concerned with extra-territorial offences as such, where

this State might claim a jurisdiction to prosecute an offence committed outside this State, and that the purpose of s. 15 is to prohibit

extradition where it is sought to prosecute an offence which was committed in this State (or in a place regarded as being within this

State), and therefore where the DPP may wish to prosecute the offender in this State. I am satisfied that my conclusions are

consistent with the plain meaning of Article 7 of the Convention, and the section itself. I believe the purpose of old s. 15 of the Act

to be clear and unambiguous when looked at carefully, and that the meaning sought to be attributed to it by the appellant is strained

and incorrect.

30. I agree with the conclusions reached by the trial judge, and would therefore dismiss this appeal.