Irish Court holds Scottish failure to attend bail hearing does not match Irish law without monetary recognisance.

THE COURT OF APPEAL

No. 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 Gerard Hogan delivered on the 24th day of February 2016

1. I have had the opportunity of reading in advance the judgment which Peart J. has just delivered. I gratefully adopt his summary of

the facts and the judgment in the High Court, together with his analysis of the issues raised on this appeal. As I entirely agree with

his treatment of the criminal contempt issue, the only issue which I propose to address in this judgment is the separate question of

whether the Scottish offence alleging that Mr. Prieto failed to attend at the appropriate court hearing in accordance with his bail

terms corresponds with an offence known to our law, specifically s. 13 of the Criminal Justice Act 1984.

2. For reasons which I will now set out in this judgment, I believe that Donnelly J. was entirely correct in the conclusions which she

reached in her judgment in the High Court so far as this issue is concerned. I accordingly regret that I cannot agree with the

conclusions of the majority of this Court on the s. 13 issue

3. In the present case the appellant, Mr. Prieto, was given bail by Edinburgh Sheriff Court but one of the conditions was that he was

required to attend at that court for every diet (i.e., court hearing) relating to the offence. It is alleged that he failed to appear at a

procedural hearing on 7th January 2014 and a warrant was issued at Edinburgh Sheriff Court on 22nd January 2014.

4. Section 102A of the Criminal Procedure (Scotland) Act 1995 provides that an accused who is subject to criminal proceedings on

indictment commits an offence is, without reasonable excuse, he fails to appear at a diet of which he has been given due notice,

apart from a diet he is not required to attend.

5. The starting point for any consideration of this issue is s. 5 of the European Arrest Warrant Act 2003 (“the 2003 Act”)(as

substituted by s. 70 of the Criminal Justice (Terrorist Offences) Act 2005) which provides that:

“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 so 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.”

6. Section 38(2) of the 2003 Act provides that a person shall not be surrendered to an issuing State unless the offence “corresponds

to an offence under the law of the State.” The offence which is said to be a corresponding offence under our law to that of the

Scottish offence is that contained in s. 13(1) of the Criminal Justice Act 1984 (“the 1984 Act”)(as amended by s. 23 of the Criminal

Justice Act 2007) which provides:

“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 €5,000 or

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

7. One distinctive feature of the Scottish offence is that there is no requirement of a monetary commitment in the event that the

accused fails to honour the bail condition.

8. So far as the “corresponding offence” requirement is concerned, the proper approach is that articulated by Denham J. in Minister

for Justice, Equality and Law Reform v. Dolny [2009] IESC 48 when she stated (at para. 14 of the judgment):

“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 where 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.”

9. Viewed in that light, it may be said that the offence created by s. 13 of the 1984 Act has either three or four separate component

acts:

(i) the accused must be released on bail;

(ii) in criminal proceedings;

(iii) fails to appear before the designated court at the appointed date and time

[and

(iv) thereby breaches his recognisance].

10. As will be seen, what is critical is whether the s. 13 offence is essentially one of failing to appear before the designated court at

the appointed time or whether a breach of a recognisance is also an essential component of the offence. If a breach of the

recognisance is an essential feature of the s. 13 offence, then there is no correspondence between the Scottish offence and the Irish

offence, as the essence of the Scottish offence is the failure to turn up at the court at the appointed time simpliciter.

11. It is, of course, perfectly correct to state that in considering this question of correspondence the legal nomenclature employed in

describing the essential ingredients of the offence is largely irrelevant. As McKechnie J. said 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.”

12. To that extent and from that perspective it is immaterial that Scottish law knows nothing of the term recognisance or that such a

term is not part of the lexicon of the Scottish lawyer. What counts rather is whether, as Denham J. said in Dolny, whether the

particulars given in the Scottish warrant disclose an offence corresponding to one under Irish law.

13. In my view, that question must be answered in the negative. I reach that conclusion for essentially two reasons which are inter-

linked. First, unlike the Scottish offence, the Irish offence is not failure to attend at a designated court hearing simpliciter, since in

this jurisdiction the offence is failure to attend in accordance with the recognisance. Second, in the context of a bail a recognisance

necessarily implies that the accused has entered into a bond whereby he undertakes to pay a money sum in the event that he

defaults on his bail conditions to attend court at a specified time and date.

14. So far as the first issue is concerned, this issue was examined – albeit in a slightly different context – by the Supreme Court in

Director of Public Prosecutions v. Clifford [2013] IESC 43. In Clifford one of the issues was whether there was sufficient evidence to

convict the accused of a s. 13 offence. Following an altercation at a Garda station, a member of An Garda Síochána checked the

Garda PULSE database and discovered that there was an outstanding bench warrant arising from the apparent failure of the accused

to appear at a particular District Court on a designated date. The Garda in question accepted in evidence that she had not been

present in court when this happened. She further accepted that she was not present in court when it was said that the accused

“had entered into the relevant recognisance which was said to have required him to turn up in court on the 31st July 2006.”

15. At the close of the prosecution case the defence 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, perhaps, significant that Clarke J. then stated:

“It is, of course, clear that both of those facts are essential to proving an offence under s. 13 of the Criminal Justice Act

1984, as amended by s. 23 of the Criminal Justice Act 2007.” (emphasis supplied)

16. It follows, therefore, that proof of a breach of a recognisance is a key element of the offence. That is tantamount to saying that

the accused must have both entered into a recognisance and breached that recognisance before any offence can be committed.

These latter elements, of course, are not features of the Scottish offence.

17. Second, the very term “recognisance” implies the assumption of a monetary obligation of some sort. Historically, “recognisance”

simply meant, in the words of O’Connor, The Irish Justice of the Peace (Vol. I., 2nd. ed. 1915)(at p. 269) that:

“a recognisance is the acknowledgment of a debt due to the King, defeasible upon the happening of a certain event, e.g.,

the appearance of the party in court pursuant to the terms of the condition.”

18. At some point after 1922 it was recognised that such usage – with its reference to the Crown - was no longer appropriate and in

modern times the defeasible debt in question is recognised as one which is owed to the People of Ireland. The essence, nonetheless,

of the recognisance is that the accused thereby assumes a potential indebtedness (however nominal) in the event that he fails to

honour the terms of his bail conditions.

19. As the Supreme Court’s decision in Clifford makes clear, proof of a breach of a recognisance – with the concomitant monetary

obligations thereby assumed – is a vital element of the s. 13 offence. As Donnelly J. noted in her judgment in the High Court, the

invariable usage of statute in this context is to treat a recognisance as involving a promise to pay a monetary sum in the event that

the commitment to appear in court is not honoured. Some contemporary examples may be given to illustrate this point.

20. The first example is supplied by s. 32 of the Criminal Procedure Act 1967 provides:

“Where a person has failed to appear before a court in accordance with his recognisance, any proceedings to estreat the

recognisance shall be taken in that court.”

21. It is interesting to note that the language of this section is very similar to that of s. 13 of the 1984 Act. Since, however, only a

monetary sum can be estreated, this section necessarily presupposes that the recognisance referred to involves a promise to pay a

monetary sum.

22. The second example may be found in s. 5(1) of the Bail Act 1997 (as amended by s. 8 of the Criminal Justice Act 2007)(“the 1997

Act”) which as thus amended provides:

“(a) Where a court requires payment of moneys into court by a person or any surety as a condition of a recognisance, it

may accept as security, in lieu of such payment, any instrument that it considers to be adequate evidence of the title of

a person to property (other than land or any estate, right or interest in or over land).]

(b) Where a bank, building society, credit union or post office deposit book is accepted as security by a court by virtue of

paragraph (a), the court shall make an order directing the bank, building society or credit union concerned or An Post, as

the case may be, not to permit the moneys on deposit to be reduced below— (i) an amount equal to the amount required

to be paid into court, or (ii) the amount then on deposit, whichever is the lesser.”

23. I do not read s. 5 of the 1997 Act as in some way severing the link between entering to a recognisance and the obligation to

make a monetary payment. Rather, this section simply clarifies the circumstances in which monies payable under a recognisance are

to be and can be paid. Section 6 of the 1997 Act further acknowledges the difference between entering into a recognisance and the

conditions of bail themselves by listing the conditions which may be imposed when “where an accused is admitted to bail on his or her

entering into a recognisance.”

24. It is true that Ord. 18, r. 1 of the District Court Rules (as substituted by the District Court (Criminal Justice Act 2007) Rules 2008

(S.I. No. 41 of 2008) provides that in bail cases the District Judge “may determine the amount (if any) conditioned by such bail.” It

further states that the provisions of Ord. 18, r. 1 “which relate to the payment of money or the giving of security shall not apply

where bail is allowed otherwise than conditioned on an amount of money.” (emphasis supplied)

25. I accept that – as the highlighted words illustrate - the District Court Rules Committee appear to have taken the view that a

monetary payment is no longer required in every case where the accused enters into a recognisance and is admitted to bail. But for

the reasons just given, however, I cannot accept that the amendments to the 1997 Act effected by the Criminal Justice Act 2007

changed the essential characteristic of a recognisance, namely, a commitment to pay a monetary sum in the event of a failure to

honour the promise to appear at a subsequent court hearing.

26. Nor can the fact that the District Court Rules Committee has chosen to interpret these changes as dispensing with the necessity

to enter into a monetary commitment be regarded dispositive of this question. On the contrary, given the historical understanding of

the term “recognisance” which is long embedded in the fabric of the law, very clear words would have been necessary on the part of

the drafters of the 2007 Act to bring about such a significant change. For the reasons I have stated, I do not think that such change

was indeed brought about by either the 1997 Act or for that matter, the 2007 Act.

Conclusions

27. As Donnelly J. pointed out in her judgment in the High Court, Mr. Prieto did not assume any monetary obligations to attend in

court in Edinburgh on the appointed day, so that “…in that sense he did not enter into a recognisance.” The essence of the offence

under the Criminal Procedure (Scotland) Act 1995 was failing without lawful excuse to attend the designated court hearing. That, of

course, is also an element of the s. 13 offence in this State. But, as Clifford demonstrates, that in itself is not enough: the

prosecution must also prove a breach of the recognisance. Yet, for the reasons I have stated, there can be no recognisance – and, a

fortiori, no breach of a recognisance - without a prior commitment on the part of the accused who is being released on bail to pay a

monetary sum, even if that obligation is a defeasible one and even again if the obligation to pay is in respect of a nominal amount.

28. Since no such requirement was imposed on Mr. Prieto when he was granted bail, it follows that one essential element of the s. 13

offence is not – and cannot be – satisfied in the present case. The essence of the Scottish offence is failure to attend at court on a

designated day. That, however, in itself is not an offence under Irish law, since under our law there is the additional element that the

failure to attend must be in breach of the accused’s recognisance.

29. It is for this reason that I am of the view that the offence under s. 102A of the Criminal Procedure (Scotland) Act 1995 does not

correspond to an offence under Irish law within the meaning of s. 5 of the 2003 Act. I would accordingly decline to make an order of

surrender in respect of this offence and I would answer this certified question in the negative.