Court of Appeal allows surrender under EAW Act 2003 s.5 for Scottish bail breach offence correspondence.

THE COURT OF APPEAL

RECORD NUMBER 2015/603

FINLAY GEOGHEGAN J.

PEART J.

HOGAN J.

BETWEEN:

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT/APPLICANT

- AND -

PABLO TELLARINI PRIETO

APPELLANT/RESPONDENT

JUDGMENT OF MR JUSTICE PEART DELIVERED ON THE 24TH DAY OF FEBRUARY 2016

1. By her first order made on the 27th November 2015 pursuant to s. 16 of the European Arrest Warrant Act, 2003 as amended (“the

Act of 2003”), Ms Justice Donnelly ordered the surrender of the appellant to the judicial authority in Scotland on foot of a European

arrest warrant issued by it on the 5th June 2014 in respect of two of the offences set forth in the warrant, namely, broadly speaking,

the offence of assault, and that of failing to appear in court as required by the terms of his bail. However, by her second order of the

same date made pursuant to s. 16 (11) of the Act of 2003 she certified one point of law as being of exceptional public importance,

such that it is desirable in the public interest that an appeal to this Court be brought. That point of law was certified in the following

terms:-

“Does the offence of failure to turn up in court in accordance with terms of conditional release correspond to any

offence in this jurisdiction in particular to criminal contempt of court?”

2. Before addressing the question certified for appeal, I will briefly set forth some necessary factual background.

3. The appellant was arrested and charged with a serious assault, and brought in custody before a Sheriff’s Court in Scotland firstly

on the 19th March 2013, and again on the 26th April 2013. On that date it would appear that he applied for was granted bail on

certain conditions which included that “[he] appears at the appointed time at every diet relating to the offence with which he is

charged of which he is given due notice or at which he is required by this Act to appear”. The other conditions to which his

conditional release on bail was subject are not relevant to the question certified for this appeal. The copy bail order which has been

provided by the Scottish judicial authority concludes with the words: “The above conditions having been accepted, the court

authorised the accused’s release”.

4. He was subsequently notified of a procedural hearing to take place on the 7th January 2014 at which his attendance was required.

He failed to appear, though his legal representative was present. A warrant was issued for his arrest there being no reasonable

excuse offered for his non-appearance.

5. He had failed to comply with a signing on condition also. The warrant seeks his surrender for offences which arise under Scottish

law in that regard, but the trial judge found no offence in this jurisdiction which corresponded to the Scottish offence in relation to

failing to sign on as required, and there is no appeal against that conclusion. The trial judge was satisfied that the offence of assault

for which he is wanted to face prosecution corresponded with an offence of assault in this State, and she ordered his surrender in

relation to that offence.

6. In the High Court the candidate offences for correspondence purposes in relation to the appellant’s failure to appear at the court in

Scotland as required by the terms of his conditional release were the common law offence of criminal contempt of court, as well as s.

13 (1) of the Criminal Justice Act, 1984 which provides:

“(1) if a person who has been released on bail in criminal proceedings fails to appear before a court in accordance with

his recognisance, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1000

or to imprisonment for a term not exceeding 12 months or to both.”

7. In his Points of Objection filed on the 12th October 2015 following his arrest on foot of the European arrest warrant, the appellant

had opposed his surrender on the basis, inter alia, that there is no offence in this jurisdiction which corresponds to the offence

charged in Scotland for failing to appear, and therefore that surrender is prohibited under s. 38 of the Act of 2003, at least in respect

of that offence. When the application for his surrender under s. 16 thereof came on for hearing before Donnelly J. she decided to

exercise her powers under s. 20 of that Act to seek further information in relation to the failure to appear charge, and adjourned the

hearing to await a response to her request. The Central Authority communicated her request to the Scottish authorities by letter

which asked the following four questions:

(a) Is it alleged that in the above cases, that the requested person entered into a recognisance?

(b) Is it alleged that he entered into a recognisance before a court?

(c) Is it alleged that the recognisance required him to appear before court?

(d) If so, is the offence and alleging breach, failure to appear in accordance with that recognisance?

8. Unsurprisingly, the word ’recognisance’ was not understood by the Scottish authority as it is not a word used in connection with

bail in that jurisdiction. It appears that they telephoned the Chief State Solicitor’s office for a clarification of the request, and

thereafter replied in an email sent on 26th October 2015 in the following terms (confined to what is relevant to the failure to appear

charge):

“I called your office today for clarification of the request details in your letter dated 23.10.2015.

I believe that the ‘recognisance’ you refer to is the accused’s agreement to comply with conditions of bail set by the

court.

It is not a term used by our courts, but in short I believe the answer to your questions to be ‘yes’.

I attach a copy of the bail order issued to the accused by Edinburgh Sheriff Court on 26.04.2015[sic]. It includes

conditions (a) and (b) requiring him to attend at court for every diet relating to the offence and also at St Leonard’s

Police Station in Edinburgh three times a week to sign in.

His release on bail was conditional on him agreeing at court in front of a Sheriff to abide by the conditions of bail in the

bail order.

Intimation of the procedural hearing that took place on 07.01.2015 was given. The accused did not attend as required

but was represented at court by a solicitor when the Failure to Appear Warrant (attached) was granted …

In order for such a warrant to be granted the court must be satisfied that the accused failed to appear at court without

reasonable excuse.

……… [emphasis added].

9. After conducting an exhaustive examination of legislation here touching upon questions of bail and the requirement for a

recognisance, the trial judge concluded that she was satisfied that a recognisance entered into by an accused person as a condition

of being granted bail involved “a monetary commitment on behalf of the accused conditional upon the happening of a certain event,

usually a failure to turn up in court or breach of another condition”, and accordingly since no such monetary commitment was

required of the appellant as a condition of his bail in Scotland, he could not be considered to have entered into a ‘recognisance’ there,

and therefore the offence charged there did not correspond with the offence here under s. 13 of the Act of 1984 since the latter

required that the accused person “fails to appear before a court in accordance with his recognisance”.

10. Having so concluded in relation to the first candidate offence for correspondence, Donnelly J. went on to consider whether there

was correspondence with the common law offence of criminal contempt of court. She concluded that it did so correspond, and that

surrender was not therefore prohibited under s. 38 of the Act of 2003.

11. During the course of submissions on this issue, Counsel had referred the trial judge to the Law Reform Commission’s Consultation

Paper on Contempt of Court published in July 1991, and to a section within Chapter 2: ‘Contempt in the Face of the Court’ which

discussed whether non-attendance in Court constituted contempt in the face of the court. While acknowledging the difficulty

conceptually in seeing a failure to appear before the court as being a contempt in the face of the court, she nevertheless was

persuaded that indeed it was so, based on the decision of the Supreme Court in In Re Kelly [1984] ILRM 424. That case involved the

failure by a witness under subpoena to attend court as required by that subpoena. In that case much emphasis was placed upon the

need for a contempt jurisdiction in order to protect the public interest in the administration of justice and ensure that it was not

obstructed. The trial judge noted the submission made by counsel for the appellant that the failure by him to attend as required at a

purely procedural hearing in Scotland did not amount to an interference with the administration of justice, and therefore to a

contempt of court, given that the court could have proceeded in his absence. However, the trial judge felt unable to accept that

submission given that there was no evidence before her that the court in Scotland could proceed further in the absence of the

accused, and that the court had actually issued a warrant, suggesting that it could not proceed in his absence. Having so stated, the

trial judge concluded that she was “satisfied that the failure to appear is quite rightly said to take place in the face of the court”,

and stated at paras. 60-61 of her judgment:

"60. When considering the issue of correspondence of offences, the focus must be on a transposition of the facts as if

they occurred in this jurisdiction. Hence, the issue is whether the failure to appear at a procedural hearing in this

jurisdiction, contrary to an agreement entered into before the court, amounts to an interference with the administration

of justice in this jurisdiction and hence a criminal contempt of court. The issue is not whether the failure to appear is an

offence against the administration of justice in Scotland but whether the transposed facts would so amount to an

interference with the administration of justice here and, in the particular circumstances, a contempt in the face of the

court.

61. In this jurisdiction, a person who agrees to be bound by a condition of release on bail that they will turn up at every

court sitting when their criminal case is listed and who does not turn up is interfering with the administration of justice.

Even where the case might proceed in his or her absence, for example in the case of some summary matters, there is

an interference with the administration of justice by the very fact of the failure to appear. The court before which the

proceedings are listed will be obstructed in any number of ways, from perhaps being forced to put the matter back to

second calling, to having to hear an application for a bench warrant or … to proceed in the person’s absence and where

sentence may be imposed there is an interference with the administration of justice because the person is not present.

The release on the agreement of the person to turn up in court requires that the person abide by that condition. The

administration of justice in criminal matters has a default position that the person be present at those proceedings. It is

an interference with the administration of justice for an act used person, having been released from custody and having

agreed to turn up in court, to voluntarily absent him or herself.”

12. In these circumstances, the trial judge concluded that correspondence was made out by reference to the common law offence of

criminal contempt of court.

Correspondence

13. Section 5 of the Act of 2003 as substituted by s. 70 of the Criminal Justice (Terrorist Offences) Act, 2005 provides:

“For the purposes of this Act, an offence under the law of the issuing state corresponds to an offence under the law of

the State, where the act or omission that constitutes the offence under the law of the issuing state 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.”

14. Section 5 represents how this State has chosen to give effect to Article 2.4 of the Council Framework Decision (2002/584/JHA)

which provides:

“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 state,

whatever the constituent elements or however it is described” [emphasis added]

15. The trial judge at paras. 33 et seq. of her judgment referred to the submission made by the respondent that since the Scottish

judicial authority had responded to the four questions asked by the CSSO (at the request of the High Court) by stating that a

recognisance was not a term used in Scotland, no correspondence could be found to exist with s. 13 of the Act of 1984 since the

commission of an offence under that section required that the accused fail to appear “in accordance with his recognisance”. It was

submitted that in such circumstances since no recognisance was entered into by the respondent in Scotland, the respondent would

not commit the s. 13 offence if he did in this State what he is alleged to have done in Scotland.

16. In addressing that submission, the trial judge stated at para. 33:

“In my view, the High Court, as the executing judicial authority, is required to look at the factual elements of what is

alleged. The word ‘recognisance’ may not be in use in other jurisdictions, but, if the same concept is applicable in their

courts, then there may well be correspondence on the facts. It is important to bear in mind what McKechnie J. stated in

Attorney General v. Pocevicius [2015] IESC 59 at para. 41: ‘ … it is self-evident that the meaning of terms, so commonly

understood in this jurisdiction may have an unrelated or quite distinct meaning elsewhere. The evidence in this case

clearly demonstrates this point. Consequently, one must be very careful not to approach terms solely or perhaps even

predominantly, through the lens of domestic jurisprudence’ ”

17. The emphasis placed by the trial judge on the need to look at the facts alleged in the warrant that emanates from the issuing

state is clearly correct as a matter of law. In Minister for Justice, Equality and Law Reform v. Dolny [2009] IESC 48, Denham J. (as

she then was) considered how the Court should undertake its task of deciding whether or not an offence for which surrender was

being sought on foot of a European arrest warrant corresponded to an offence in this State in accordance with s. 5 of the Act of

2003. At para. 14 of her judgment, she stated:

"14. In addressing the issue of correspondence it is necessary to consider the particulars on the warrant, the acts, to

decide if they would constitute an offence in the State. In considering the issue it is appropriate to read the warrant as

a whole. In so reading the particulars it is a question of determining whether there is a corresponding offence. It is a

question of determining if the acts alleged were such that if committed in this jurisdiction they would constitute an

offence. It is not a helpful analogy to consider whether the words would equate with the terms of an indictment in this

jurisdiction. Rather it is a matter of considering the acts described and deciding whether they would constitute an

offence if committed in this jurisdiction.”

18. It is not in my view necessary to examine the decision in Attorney General v. Dyer [2004] 1 I.R. 40 to which the Court was

referred during submissions. Quite apart from the clarity of what is stated above by Denham J. in Dolny, which in my view suffices,

Dyer is not an application under the European Arrest Warrant Act, but rather under Part II of the Extradition Act, 1965. I appreciate

that s. 42 of the Act of 1965 is in almost identical terms of s. 5 of the Act of 2003, but the facts giving rise to the controversy in

that case were very different, and centred on the fact that while the Irish offences with which correspondence was sought to be

made out required that “an intent to defraud” and this was always contained in the indictment, the equivalent offence in Jersey did

not contain reference to “an intent to defraud” as part of the offence. That lacuna was sought to be filled by expert evidence as to

what would be required to be proven at any trial of such an offence in Jersey which would include mens rea, and therefore “an

intention to defraud” would have to be proven as part of the prosecution’s case. It was concluded that correspondence was not

made out. But, as I have said, the present case is different. Nevertheless, I should refer to the fact that in his judgment in Minister

for Justice, Equality and Law Reform v. Altaravicius (No.2) [2007] 2 I.R. 265, McMenamin J. had, prior to Dolny, stated the following:

"43. “Thus, in considering correspondence, the focus of the court must be on the act or omission that constitutes the

offence. If such act or omission were committed in the State would it constitute an offence under the law of the State?

44. This issue was fully examined by the Supreme Court in Attorney General v. Dyer [2004] IESC 1, [2004] 1 I.R. 40. In

the course of his decision, Fennelly J. identified a number of principles set out in previous cases. These are:-

1. In considering whether correspondence has been established, the court looks to the facts alleged against the subject of

their quest, as opposed to the name of the offence for which he or she is sought in the requesting state, and considers

whether these facts or this conduct would amount in this State to a crime of the necessary minimum gravity;

2. In considering correspondence therefore the court is concerned not with the name of the offence in the requesting

country but the criminal conduct alleged in the request or warrant, and

3. In the absence of anything suggesting that the words used in a warrant had a different meaning in the law of the

requesting state, the question of correspondence was to be examined by attributing to such words the meaning they would

have in Irish law.”

19. The interpretation of s. 5 of the Act of 2003 to which I have referred conforms to the purpose and objective of Article 2 of the

Framework Decision which I have set forth above. The Court’s focus must be on the acts or omissions alleged to give rise to the

offence in the warrant (and, if necessary, any further information provided by the issuing state), and then see if the same acts or

omissions if committed in this State would give rise to an offence here – not necessarily the same offence in the issuing state, but an

offence here. Article 2 of the Framework Decision is given expression in s. 5 of the Act of 2003. Article 2 makes clear that this

exercise is not to be carried out by a comparison of the offence in the issuing state with the candidate offence here. There may be

similarities and there may be differences between the precise offence in any number of Member States all of whom are operating

under the same EU instrument. That is confirmed by the words appearing at the end of Article 2, namely “whatever the constituent

elements or however it is described”. Provided what the respondent allegedly did in Scotland as disclosed in the warrant (and, if

necessary, any information later provided) would, if done here give rise to an offence here (not necessarily an identical offence to

that in the issuing state), then correspondence is made out. In most cases this is not a complicated or difficult task. To interpret s. 5

in this way is to do so in a way that conforms to the objectives and purpose of the Framework Decision, and is not contra legem

since it does not do any violence to the words of the national provision, and is therefore not contra legem (see Pupino (Case C C-

105/03) [2005] E.C.R. I–05285. Applying these principles, I will now turn to the candidate offences for correspondence, firstly the

common law offence of criminal contempt, and secondly, s. 13 of the Criminal Justice Act, 1984.

The Contempt of Court offence

20. The Court has received very helpful submissions from both parties, both oral and written. Andrew Sexton SC for the appellant

submits that a criminal contempt of court must be seen as some act or omission that is calculated to interfere with or obstruct the

proper administration of justice, and that examples of such behaviour would typically be where a judge might be insulted or even

assaulted during court proceedings or in the precincts of the court, or where an accused or a witness might refuse to answer a

question which he has been directed to answer by the judge, or behaves in court in a way that obstructs the conduct of a case i.e.

by shouting and causing disruption. It is submitted that there are any number of acts that might give rise to a criminal contempt of

court, or a contempt in the face of the court as it is often referred to, but that it has never been the case that a failure to attend

court in answer to a bail condition is treated as a criminal contempt, or has been so prosecuted or punished as such. Counsel has

emphasised the useful purpose served by the summary jurisdiction which the court enjoys to deal with contempts in the face of the

court there and then, so that the business of the court can continue without unnecessary delay caused by the matter becoming the

subject of a prosecution. He contrasts the case of an accused who simply fails to turn up in answer to his bail with the sort of

behaviour which has given rise to the exercise by a trial judge of a summary jurisdiction to deal with contempt in the face of the

court. It is submitted that it does not make sense that a person who is not in fact before the court (because he has failed to appear)

would or could be dealt with under that summary jurisdiction. He urges that this demonstrates why such a failure to appear ought not

to be treated as being a criminal contempt in the face of the court, and why such failures to attend pursuant to a bail condition have

not historically been treated as contempt of court and have not been prosecuted as such. Mr Sexton has referred the Court to a

number of cases which he submits support his submissions in this regard, and I shall return to those in due course. It is in such

circumstances that Mr Sexton submits that the trial judge fell into error by concluding that correspondence was made out by

reference to the common law offence of contempt in the face of the court.

21. Robert Barron SC for the Minister has made helpful submissions on behalf of the Minister. He submits that a failure by an accused

person to turn up in court for his trial clearly impedes or obstructs the administration of justice, and therefore commits a criminal

contempt. He submits that the trial judge’s conclusion in this regard is correct as set forth at para. 61 of her judgment which I have

set forth above. While he cannot point to any case where an accused was prosecuted for his non-attendance in court pursuant to

his bail condition, he has submitted that neither is there any authority which decides that it may not be prosecuted as a contempt of

court. He submits that approaching the matter from first principles it is clear that if a person acknowledges himself bound to

conditions of bail which include that he attend court when he is required by the court to do so, and then in disobedience to that

undertaking given to the court fails to do so without reasonable excuse, it is a direct obstruction of the business of the court and

therefore to the administration of justice, which is the essence of the offence of criminal contempt. In his submission, the trial judge

was correct to find that correspondence was made out by reference to the common law offence of criminal contempt of court.

22. The jurisdiction to punish summarily a criminal contempt in the face of the court is of long-standing and exists to protect the

administration of justice. As O’Malley states in Sentencing, Law and Practice, 2000, Roundhall at para. 11-90 “… criminal contempt of

court … consists in behaviour calculated to prejudice the due course of justice”, and in that regard he footnotes the judgment of

O’Dalaigh CJ in Keegan v. de Burca [1973] I.R. 223 where at p. 227 he states:

“Criminal contempt consists in behaviour calculated to prejudice the due course of justice, such as contempt in facie

curiae, words written or spoken or acts calculated to prejudice the due course of justice or disobedience to a writ of

habeas corpus by the person to whom it is directed – to give but some examples of this class of contempt.”

23. This contempt jurisdiction serves to uphold public confidence in the administration of justice. It is therefore an important

jurisdiction. What will or will not be considered to be a criminal contempt in the face of the court or indeed from outside the court

(often referred to as constructive contempt) will vary factually from case to case. But the jurisdiction is sufficiently broad in its scope

to encompass any act or omission which the court considers a threat to, or a serious prejudice to, the proper administration of justice

or, as it is sometimes put, tending to scandalise the court. The State (DPP) v. Walsh and Conneely [1981] I.R. 412 is an example of

such a case of constructive contempt in the sense that it occurred outside the court and the case itself, namely where an article

was published in a national newspaper which expressed a trenchant criticism of the Special Criminal Court in the context of a

notorious case at the time. In his judgment (albeit in the minority), O’Higgins CJ described the Court’s jurisdiction thus at p. 428:

“In my view, the basis for this jurisdiction is the protection of the proceedings of the Courts – whether it be in relation

to litigation at hearing or pending, or in relation to litigation concluded where the justice and authority of the court and,

therefore, of its decision is questioned by baseless and malicious charges of impropriety and misconduct. In all these

cases the Courts must have the power to act in the protection of justice which they dispense and to do so quickly. The

primary purpose of such action is not to punish those whose criminal conduct has endangered the administration of

justice. It is to discourage and to prevent the repetition or continuance of conduct which, if it became habitual, would

be destructive of all justice.”

24. In his judgment (as part of the majority) in the same case, Henchy J. stated at p.433:

“At common law the offence was a misdemeanour which attracted the penalty of a fixed but theoretically unlimited

term of imprisonment, or an unlimited fine. Because the offence strikes at the heart of justice by substantially impeding

it, devaluing it, or prejudicing its operation, the necessity to come to grips with the offence expeditiously has been

recognised for centuries by the summary manner which courts of record have thought necessary to employ in dealing

with it … .”

25. Other cases of criminal contempt have involved witnesses’ failure to attend on foot of a subpoena ad testificandum, or to

produce a document required under subpoena duces tecum – see generally Miller: Contempt of Court, OUP, 2008, p. 163. Futher

examples of contempts in the face of the court can be gleaned from the footnotes in Halsburys Laws of England such as insulting

remarks during the trial, or seizing a document in manibus curiae and carrying it away in defiance of the court. I refer to these

examples in order to demonstrate the type of matters that historically have been treated as criminal contempts in the face of the

court, so that they can be contrasted with the failure to appear in court in breach of a bail condition. While there is no doubt that

factually this represents a failure to honour an obligation to the court, nevertheless in my view it is qualitatively different, and not

something that in the same way represents an affront, insult or defiance of the court such that it endangers the administration of

justice, or prejudices the public confidence in the administration of justice.

26. The trial judge drew support for her conclusion that a failure to appear in court was a contempt in the face of the court from the

judgment of Costello J. in In Re Kelly and Deighan [1984] I.L.R.M 424. That was a case where Messrs. Kelly and Deighan were found

to have attempted to suborn a witness and had encouraged him not to attend court on foot of a subpoena that had been served on

him. In his judgment in that case Costello J. stated that jurisdiction to deal with such matters “should only be exercised in very

exceptional circumstances; only if in fact it was necessary for the proper administration of justice should the court undertake a

summary trial”, the alternative being of course that the matter would be referred to the DPP in the ordinary way on foot of a

complaint so that the DPP would decide whether or not a prosecution should be brought on indictment. But the point is that it is a

jurisdiction to be exercised for the protection of the administration of justice. Costello J. stated:

“In the courts to deal with contempt of court. That inherent power must now be read in the light of the Supreme Court

decision in The State (DPP) the Walsh and Conneely [1981] IR 412. It has been conceded by counsel on behalf of Mr Kelly

and Mr Deighan that the Supreme Court decision in the Walsh and Conneely case expressly indicated that it was not

dealing with contempt in the face of the court. Now I am of the view that the matter with which I am concerned is an

allegation of contempt in the face of the court. I reached this conclusion from the general law on the matter and in

particular from a portion of the minority judgment of the Chief Justice in the Walsh and Conneely case. The judgment of

the Chief Justice was a minority judgement but the portion dealing with what is contempt in the face of the court was in

my view, and with respect, a correct statement of the law. So an attempt to suborn Mr McGoldrick and to ask him not

to give evidence was in my opinion, if proved, a contempt in the face of the court.”

27. While the judgment of Costello J. assists in making clear the nature of the offence, it does not in my view provide the support

perceived by the trial judge, since it is decided on very different facts. It was a case where persons were found to be in contempt of

court because they had attempted to prevent the witness, Mr McGoldrick, from attending court. It was not a case where Mr

McGoldrick himself was in contempt for not having appeared in answer to the subpoena served on him. It was a case of subornation. I

think the case must therefore be distinguished from the type of issue in the present appeal.

28. As I have said already, neither Counsel has been able to point to any authority either here or in the neighbouring jurisdictions to

the effect that the breach by an accused of the condition of his bail to appear in court when required to do so is a criminal contempt

of court. Being a not uncommon occurrence, that itself speaks loudly for the proposition that such a breach is not treated as such an

offence. Any authority on the point is in fact the other way. Mr Sexton has directed the Court’s attention to some such authorities.

29. Archbold [2006 ed.] at para. 28-58 states that “The offence of failing to surrender to custody contrary to the Bail Act 1976, s.

6(1), is not a contempt of court”. Authority in that regard is located in three cases to which we have been referred, namely R v.

Reader 84 Cr.App.294, Schiavo v. Anderton [1986] 83 Cr. App. R. 228, and R v. Lubega [1999] 163 J.P. 221, CA.

30. In R v. Reader, Leggatt J. stated:

“The offence of absconding whilst on bail has never constituted a contempt of court. If there were any doubt about this

point, one has only to refer to the language of the Bail Act section 6 (5) itself, which provides that the offence of

absconding whilst on bail shall be punishable ‘as if it were a contempt of court’. No such provision would be needed if

absconding already was a contempt of court, and the phrase ‘as if it were’ shows that it is not a contempt of court.

This point has recently been underlined in the Divisional Court in Schiavo v. Anderton … where at p. 238 and p. 186

respectively Watkins L. J. said:

‘An offence under section 6 of the Bail Act is not a contempt of court, although it may be said to bear some relation to it in

the sense that a person who commits it has acted in defiance of an essential condition of his bail, namely that he surrender

so as to appear before the court at a place and at a time appointed.’

………

All that the appellant is guilty is an offence under section 6.”

31. In Sciavo v. Anderton, Watkins L.J. noted the position which prevailed prior to the passing of the Bail Act, 1976. In that regard he

stated:

“Prior to the Bail Act 1996 absconding was not an offence known to the law. The only power which courts had which was

in any way akin to punishment was to estreat the recognisance of an accused person when he was arrested and

possibly that of his or her sureties. The offence created by section 6 is therefore unique in the sense that it has no

ancestor and unique for reasons which later I shall in this judgement explain in the sense that it is other than what might

be called a conventional criminal offence.”

32. As already set forth, the facts in this case are that the accused person was granted bail on certain conditions which included

that “[he] appears at the appointed time at every diet relating to the offence with which he is charged of which he is given due

notice or at which he is required by this Act to appear”. He did not do so. Instead he absconded and failed to appear. I do not

consider that if he committed the same act in this jurisdiction he would be guilty of the offence of criminal contempt, be it in the face

of the court or otherwise. I do not believe he would even be charged with such an offence. Neither side has identified any case in

which this has occurred. It has been firmly established in my view in the English cases that absconding was never a contempt of

court. There is no authority in this jurisdiction which takes a different view. Given the decisions in this jurisdiction on criminal

contempt and the nature of the behaviour and the circumstances in which contempt of court has been found to have been

committed, and to which I have referred in some detail, and in the absence of any authority to the contrary I am firmly of the view

that the failure of a person to answer his bail by attending in court as required is not a common law offence of contempt of court in

this State. In such circumstances I believe that the trial judge erred in finding correspondence by reference to that common law

offence.

Section 13 of the Criminal Justice Act, 1984

33. For convenience I will again set out the provisions of s. 5 of the Act of 2003:

“For the purposes of this Act, an offence under the law of the issuing state corresponds to an offence under the law of

the State, where the act or omission that constitutes the offence under the law of the issuing state 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.” [Underlining added]

34. For the same reason I will also again set out the provisions of s. 13 (1) of the Act of 1984:

"(1) “If a person who has been released on bail in criminal proceedings fails to appear before a court in accordance with

his recognisance, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1000

or to imprisonment for a term not exceeding 12 months or to both.” [underlining added]

35. As appears from the trial judge’s judgment much of the debate centred around these words “in accordance with his

recognisance”, and the meaning and nature of a recognisance, and the fact that under the procedures for bail in Scotland no

recognisance as such containing a monetary element is entered into, as it is in Ireland. It was this absence of anything in the nature

of a recognisance containing a monetary obligation which compelled the trial judge to conclude that there was no correspondence

between the Scottish offence under s. 102A of the Criminal Procedure (Scotland) Act, 1995 and the s. 13 offence here, even though

in each jurisdiction an offence is committed if the accused fails to turn up on foot of the commitment given to the court. In my view

she erred in this respect.

36. I consider that the trial judge wrongly focussed on trying to find equivalence between the offence in Scotland and the s. 13

offence here, rather than focus on what the respondent actually did in Scotland according to both the warrant and the additional

information provided (which forms part of what the Court may consider), and then to determine whether if the same was done here

he would commit an offence here. The final words of Article 2.4 of the Framework Decision “whatever the constituent elements or

however it is described” are important also.

37. In relation to the Court’s entitlement to take account of facts included in additional information, and not be confined to the facts

disclosed in the warrant, I refer firstly to what was stated by Denham J. (as she then was) in Dolny when towards the end of para.17

of her judgment she stated:

“Thus, a court may look at all the information provided, the facts and the acts described, and give the words their

ordinary meaning”.

38. In addition I note what was stated by Geoghegan J. in his judgment in Minister for Justice v. Sas [2010] IESC 16 when he held

that additional information which was provided by the issuing judicial authority pursuant to a request made under s. 20 of the Act as

to the circumstances in which the offence was committed in the issuing state was admissible on the s. 16 application without formal

proof of the fact that for the purpose of s. 20 the Central Authority which sought the additional information was of the opinion that

this was necessary to enable the Court to perform its function under the Act, and could be acted upon.

39. So what acts or omissions did he do or omit to do in Scotland which are said to constitute the offence charged there? First of all

he accepted as a condition of being granted bail by the Scottish court that he would appear before the court whenever he was

required to do so. He gave that acceptance of that condition verbally as is recorded in the bail order which has been provided.

Whether it was given in writing or given verbally does not affect the character of what he did. He committed himself as a condition of

being granted bail to attend court when required until his trial was concluded. The second act or omission alleged is that he failed to

attend court in accordance with that commitment or undertaking. Those are the facts alleged to constitute the offence, and they are

uncomplicated.

40. I take full account of the fact that under the Scottish section 102A it would appear on a plain reading of the section that even

where an accused fails to appear without having given a commitment to do so as part of any conditions of bail, he will commit the

offence. However, that simply does not make any sense. It is fanciful that such could occur. How, one might ask rhetorically, could it

be sensibly alleged that a person who fails to appear in court without any legal obligation to do so would commit a criminal offence if

he did not appear. It simply does not make sense. The failure to appear offence can only occur where an obligation to do so has been

undertaken and then breached. Therefore, to confine one’s view to the mere fact of a failure to appear (i.e. the only fact stated in

the warrant) and ignore the later disclosed facts that a commitment to appear was accepted as a condition of bail being granted, is,

for the purpose of establishing correspondence under s. 5, to ignore the reality of what occurred, and fail to properly carry out the

function required of the Court of determining correspondence.

41. In this jurisdiction an accused will, as a condition of being granted bail, agree or undertake that he will attend court on any

occasion that is required including for his trial. Usually that commitment is not given orally, though it may be done that way. I accept

that it is more normally done by signing a form known as a recognisance, which contains the conditions attaching to bail including the

commitment to appear, and I accept also that such a form of recognisance normally contains a monetary element, often of a fairly

nominal amount, which may be estreated or forfeited if any condition of bail is breached. Either way, in each jurisdiction a

commitment or undertaking is entered into by the accused person that, as a condition of being released from custody pending his

trial, he will attend court as required. If that person breaches that commitment or undertaking to appear he will both in Scotland and

here commit an offence – that committed here will be the offence under s. 13 of the Act of 1984. The words in s. 13 of the 1984 Act

“in accordance with his recognisance” must be read as meaning “in accordance with his commitment to appear”. It seems to me that

when one looks at all the facts and circumstances as appear from the warrant and the additional information, it is clear that there is

correspondence for the purpose of s. 5 of the Act of 2003.

42. With respect to the trial judge, her focus on the words “in accordance with his recognisance” is a distraction to the task of

finding correspondence, and led to an undue focus on whether there is equivalence of offence. It failed to recognise that what is

important for correspondence is the fact that a solemn commitment or undertaking to appear in court when required was given as a

condition of being given bail, and that it was breached, and not the manner in which that commitment or undertaking was given.

43. As it happens, in this jurisdiction the commitment or undertaking is created by entering into a recognisance. It is true that upon

entering into such a recognisance the accused will commit also to being liable to pay a specified sum of money by way of

estreatment. However, estreatment of bail is, following the passing of the 1984 Act, a sanction which is in addition to the commission

of a s. 13 offence where the accused fails to honour that commitment to attend court. The fact that under a recognisance a sum of

money is mentioned, which may be estreated in the event of breach, does not alter the fact that what the accused does by entering

into the recognisance is to undertake to appear in court as required as a condition of being released pending his trial.

44. O’Connor’s Justice of the Peace [1915 ed.] comments upon ‘Recognisances’ in Chap. VII at p. 270. The provisions of s. 34 of the

Petty Sessions (Ir.) Act, 14 & 15 Vict. C. 93 as set forth commences with the words: “Whenever any person shall be bound to

appear, or to keep the peace, it shall be done by separate recognisance ………”. A footnote to that section states, however, that

“the signing of a recognisance is not essential to its validity” and authority is cited for that statement. I mention that simply because

in the Scottish court the respondent gave his commitment to appear orally i.e. acceptance of that condition of his release, as the

order notes. The fundamental essence of a recognisance is the commitment given to the court to appear. That is its purpose. A

monetary element was historically included, but only for the purpose of securing the purpose of the recognisance which was the

commitment to appear. Despite the words of the Scottish s. 102A, the reality, as I have explained above, is that the Scottish offence

is committed when the accused fails to appear when he had an obligation to appear. There could be no such offence committed if he

was not under a legal obligation to appear.

45. The inclusion of the words “in accordance with his recognisance” in s. 13 simply reflects the manner in which the commitment to

appear is given to the court. It is the commitment to appear that must be focussed upon, and not the monetary nature of the

recognisance. It does not detract from the fact that if the respondent did in this jurisdiction what he did in Scotland (i.e. give a

commitment to appear and did not appear as required) he would commit the offence here under s. 13 of the Act of 1984, and

therefore correspondence is established as defined in s. 5 of the Act of 2003.

46. The appellant has submitted that since there is no reference in the EAW or the additional information to any ‘recognisance’ being

entered into by the accused person, it must follow that the appellant could not be convicted here of the s. 13 offence since that

offence is committed if there is a failure to appear “in accordance with his recognisance”. In support of that submission he relies upon

the judgment of Clarke J. in the Supreme Court in Clifford v. DPP [2013] IESC 43. That was a case where Clifford was charged with an

offence under s. 13 of the 1984 Act, but no recognisance was produced at his trial as part of the proofs required to show that he

was under an obligation to appear. In relation to proving that charge, Clarke J. stated as follows:

“At the close of the prosecution case, counsel for Mr Clifford sought a direction on the basis that there was no evidence

on which it could be found that Mr Clifford had either entered into recognisances which required him to attend court on

the 31st July 2006 or that Mr Clifford had not attended court on that date. It is, of course, clear that both of these

facts are essential to proving an offence under s. 13 of the Criminal Justice Act, 1984 as amended.”

47. I do not consider that the judgment of Clarke J in Clifford speaks to the question of correspondence for the purpose of s. 5 of the

Act of 2003. It was concerned with what proofs are required where a person is charged with a s.13 offence here, the point at issue in

Clifford being that there was no evidence adduced that he had given any commitment to or agreed to appear in court for his trial on

the underlying offence. The issue in the present case is not concerned with how the offence would be proved.

48. I would therefore answer the trial judge’s certified question by saying that the offence of failure to turn up in court in accordance

with terms of conditional release corresponds to the offence under s. 13 of the Criminal Justice Act, 1984, but not to the common law

offence of criminal contempt of court.

49. In my view, the order for surrender should stand, so that the appellant is surrendered on the assault offence Case 1 (charge 1)

and the offence of failing to appear Case 1 (charge 2). His surrender on these offences is not prohibited.