High Court allows surrender under EAW Act 2003 s.6 where 'mislead' implies dishonesty in fraud warrant.

Neutral Citation Number: [2008] IEHC 443

THE HIGH COURT

2008 94 EXT

BETWEEN

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

APPLICANT

AND

DARIUS TOMELLA

RESPONDENT

Judgment of Mr. Justice Michael Peart delivered on the 27th day of November 2008

1. The surrender of the respondent is sought by a judicial authority in Poland on foot of a European arrest warrant dated 6th

December, 2007, which was endorsed for execution here by order of the High Court dated 30th April, 2008. The respondent was duly

arrested on foot of same on the 1st September, 2008. As the respondent injured himself at the time of arrest, he was hospitalised

thereafter for a number of days, and in due course when he was sufficiently recovered, he was, on the 11th September, 2008,

brought before the Court as required by s. 13 of the European Arrest Warrant Act 2003 as amended, and was remanded in custody to

await the determination of the present application for his surrender. No issue has been raised by him in relation to his arrest.

2. I am satisfied that the respondent is the person in respect of whom this European arrest warrant has been issued.

3. His surrender is sought so that he can be prosecuted in Poland in respect of a single offence described in the warrant as being

fraud contrary to Article 286 (1) of the Polish Criminal Code. Minimum gravity for that offence is satisfied.

4. The facts giving rise to that offence are described as follows in the warrant:

“On the 28th October 2005 in Czestochowa, acting with the intention to gain material benefit he has mislead the owner

of the [company], Ms. Renata Kozibudzka, about his intention to pay for the purchased goods in form of cement, and in

this way he brought the above named to disadvantageous disposal of her property amounting to 15,552.30 zloty.”

5. Some additional information has been provided by the issuing judicial authority by letter to the Central Authority here dated 18th

April, 2008 in which it is stated that:

“He carried out business under a business name of a firm in the registered office of which nobody worked, he did not

reply to correspondence sent by registered mail, did not pay for received goods, did not respond to attempts to contact

him by telephone in the registered office of his firm and at his private telephone number, he was not found at his

residential address or in his firm’s registered office.”

6. Although the offence in the warrant has been described as being one of fraud, the offence has not been marked as an offence of

fraud coming within Article 2.2 of the Framework Decision. In these circumstances the Court must be satisfied that the offence

corresponds with an offence in this State under the provisions of s. 5 of the European Arrest Warrant Act 2003, as amended.

7. Melanie Greally B.L. for the applicant suggests that the facts contained in the warrant would give rise to an offence in this State

under s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001, namely one of making a gain or causing a loss by deception.

Section 6 of that Act provides:

“6.— A person who dishonestly, with the intention of making a gain for himself……… or causing a loss to another, by any

deception induces another to do or refrain from doing any act, is guilty of an offence.”

8. I will come to the submissions made by Mr. Bowman on behalf of the respondent to the effect that the information in the warrant,

and the additional information provided by the issuing judicial authority fails to show that what the respondent is alleged to have done

for this offence in Poland was done “dishonestly”, and that accordingly that correspondence is not made out.

9. I am satisfied that there is no reason to refuse to order surrender under sections 21A, 22, 23, or 24 of the Act.

10. Subject to reaching a conclusion in relation to correspondence, I am satisfied that the respondent’s surrender is not prohibited by

any provision of Part III of the Act, or the Framework Decision.

Point of Objection – Correspondence

11. The point made is that what is revealed in the warrant as constituting this offence is simply a contractual debt owed by the

respondent, and not a criminal offence, and that therefore it falls outside the ambit of a European arrest warrant. That is the way the

point of objection has been raised in the Points of Objection. However, it boils down to the net question as to whether the facts

would, if done in this jurisdiction, give rise to an offence under s. 6 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (“the

2001 Act”) as set forth above.

12. Mr. Bowman has submitted that what is described in the warrant shows no crime, but rather a civil debt. He suggests that the

Applicant is asking the Court to imply criminality by reference to the use of the word “misled” in the warrant, and that since that word

is not a term of art, it must be given its ordinary meaning, and he submits that by its ordinary meaning “mislead” can be something

done unintentionally or innocently, and that therefore the use of that verb cannot be assumed to impute dishonesty for the purpose

of a s. 6 offence. He submits that it must not be confused with or equated to “deceive”.

13. He submits also that nothing of a dishonest or otherwise criminal nature emerges from the additional information, and submits also

that it is in any event clear that when the attempts to contact the respondent which are referred to in the additional information

were made, the respondent was in this country, and that this explains why these attempts were unsuccessful.

14. Ms. Greally for the applicant accepts that a person can in some circumstances innocently or unintentionally mislead another

person, but that it is clear from the facts contained in this warrant that what the respondent is alleged to have done was not done in

such an innocent or unintentional way as to escape the dishonest meaning to be attributed to the verb “mislead”.

Conclusion

15. The question of correspondence can in my view be disposed of by reference to what is contained in the warrant itself, and

without reference to the additional information provided by the issuing judicial authority. The question at issue is what meaning is to

be given to the word “mislead” in the warrant. Unless that word can be given a meaning that reasonably includes an element of

dishonesty, that dishonest intent is lacking in the warrant, and the facts would not correspond to the s. 6 offence put forward as the

corresponding offence here.

16. The verb “mislead” is, as correctly submitted by Mr. Bowman, not a term of art. It has not been defined in the 2001 Act. It must

therefore be given its ordinary meaning. It is not a neutral word as I found to be the case in relation to the word “took” in Minister for

Justice, Equality and Law Reform v. Dunkova, (Unreported, High Court, 30th May, 2008) where the offence in question was one of

theft. In that case I concluded that the use of the word “took” could not be taken as including or necessarily implying the element of

“without the consent of the owner”. But the word “mislead” is different. While that word can be used in some circumstances where

what was done was done innocently or unintentionally, and not in a criminal way, it is also capable of another meaning in other

circumstances where what was done was not unintentional or innocent, such as the present case. Where there are two such possible

meanings, the Court is entitled to have regard to the context in which the word is used, that context to be gleaned from other facts

disclosed in the warrant. In the present case it is disclosed in the warrant that he purchased cement in the amount stated without

paying for it. The Court cannot read the word “mislead” without doing so in the context in which it is used, and must not simply look

at the word in isolation.

17. I am satisfied that, given its ordinary meaning in the context of the other facts disclosed in the warrant in this case, the use of

the word “mislead” is sufficient to include in the warrant the necessary element of dishonesty in the respondent’s actions for the

purpose of correspondence to an offence here under s. 6 of the 2001 Act.

18. In these circumstances, I will make the order for the surrender of the respondent to the issuing state.