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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McDonald v. McMahon [1989] IEHC 5 (13 January 1989) URL: http://www.bailii.org/ie/cases/IEHC/1989/5.html Cite as: [1989] IEHC 5 |
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1988 No. 881 Sp.
THE HIGH COURT
IN THE MATTER OF SECTION 50 OF THE EXTRADITION ACT 1965
BETWEEN/
KEVIN ANTHONY McDONALD
PLAINTIFF
AND
JOHN PAUL McMAHON
DEFENDANT
Judgment of Mr. Justice Lardner delivered the 13th day of January 1989.
The Plaintiff in this Special Summons appeals under Section 50 of the Extradition Act 1965 from two Orders of the District Court dated the 19th of October 1988 that he be delivered up on foot of two extradition warrants dated the 5th of August 1988 to the London Metropolitan Police. The first warrant alleges that:
"On divers days between the 1st day of January 1986 and the 21st day of May 1987 within the jurisdiction of the Central Criminal Court for England and Wales conspired with Elchachchadi, Hamou Magdi, Soliman, Collette Raud and other persons dishonestly to obtain Irish passports by deception, namely by falsely pretending that all the personal particulars provided of the applicants for the said passports were true and accurate and that the said applicants were lawfully entitled to the said passports."
The second warrant alleges that:
"On divers days between the 1st day of January 1986 and the 21st day of May 1987 within the jurisdiction of the Central Criminal Court for England and Wales being an agent of the Government of the Republic of Ireland conspired with Elchachchadi, Hamou, Magdi, Soliman, Collette Raud and other persons corruptly to obtain from any person for himself the said Kevin Anthony McDonald or for any other person a gift or consideration as an inducement or reward for doing an act in relation to his, the said Kevin Anthony McDonald's principal's affairs, contrary to Section 1 (1) of the Prevention of Corruption Act 1906, namely the provision of an Irish passport to persons not lawfully entitled to the same, contrary to Section 1 (1) of the Criminal Law Act 1977 as amended by Section 5 of the Criminal Attempts Act 1981."
Section 50 of the Extradition Act 1965 under which these appeals are brought provides (so far as relevant to this case as follows:
"(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.
(2) A direction under this section may be given by the High Court where the Court is of opinion that -
(a) the offence to which the warrant relates is - (iii) a revenue offence, or(c) the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months."
The offences alleged in the two warrants relate to and are connected with passports namely,:-
conspiring with others dishonestly to obtain Irish passports by deception namely by false pretences;and being an agent of the Republic of Ireland conspiring with others to obtain for himself or others a gift or consideration as an inducement or reward for doing an act to his principal's affairs namely the provision of an Irish passport to persons not lawfully entitled to the same.
Mr. Ford for the Plaintiff submitted that the Irish Government issued passports for a charge which was a tax or duty; that issuing passports was part of the general Public Services - something which all Governments do; that the charge for a passport is in the nature of a duty and that a charge which goes into the public Exchequer was by that fact a duty; that the charge for pass. ports was to a degree which he could not quantify for a revenue gathering purpose; that in all these circumstances the charges alleged in the two warrants were revenue offences within the meaning of Section 50. No evidence was adduced to support these contentions. On two grounds I think this submission is misconceived. Firstly, the fees charged in respect of the issue or renewal of Irish passports are authorised by the Diplomatic and Consular Fees Act, 1939. This is an Act which is described in the title as
"AN ACT TO MAKE PROVISION FOR ENABLING FEES TO BE CHARGED BY CERTAIN DIPLOMATIC AND CONSULAR OFFICERS AND OFFICERS OF THE MINISTER FOR EXTERNAL AFFAIRS FOR PARTICULARSERVICES RENDERED BY THEM, AND TO MAKE PROVISION FOR THE COLLECTION AND DISPOSAL OF SUCH FEES AND FOR THE RECOVERY THEREOF".
Section 2 provides that the Minister may with the consent of the Minister for Finance make regulations fixing the fees to be charged for such services as are specified in such regulations when rendered by a person to whom this Act applies. Section 3 (a) provides for fees collected to be paid into or disposed of for the benefit of the Exchequer in accordance with the directions of the Minister for Finance. The fees at present are charged under S.I. 242 of 1984 which amends S.I. 344/1982.
Mr. Fennelly has submitted that as the passport fee is prescribed as a fee for a service rendered namely the issue or renewal of a passport, it is not shown to have been used or be capable of being properly used as a revenue raising device. I accept this submission.
Secondly, the phrase revenue offence used in Section 50 is defined in Section 3 in the following words -
"In this Act "revenue offence", in relation to any country or place outside the State, means an offence in connection with taxes, duties or exchange control but does not include an offence involving the use or threat of force or perjury or the forging of a document issued under statutory authority or an offence alleged to have been committed by an officer of the revenue of that country or place in his capacity as such officer. "
Mr. Fennelly submits that this definition of revenue offence relates to the revenue laws of any country or place outside the State; that this definition relates to and reflects the long standing legal practice and principle that the courts of a country - of this country - do not aid the collection by another country of its revenue - a practice and principle endorsed by the Supreme Court in Buchanan, LTD and Anor v McVey 1954 IR 89 .
I think Mr. Fennelly is correct in his contention that the words "a revenue offence" used in Section 50 refer to an offence in connection with taxes or duties in relation to any country or place outside the State and that Mr. Ford's submission that the fees charged for the issue of renewal of Irish passports by the Irish Embassy in London or by the Irish Government (even if they did constitute taxes or duties of which I am not at all satisfied) is misconceived and does not bring the charges alleged in the two warrants against the Plaintiff within the definition of a revenue offence in Section 3.
As a second ground of challenge/ by the Plaintiff to the two warrants, it was contended that the offences specified in warrants do not correspond with any offences under the law of the State which are indictable offences or are punishable on summary conviction by imprisonment for a maximum period of at least six months. In this connection Mr. Ford contended that the charge in one warrant did not specify the statute under which the charge was brought and that this rendered the warrant defective. In regard to the other, which did specify the relevant English statute, he sought to refer to its terms. Being of the opinion that the former warrant gave a sufficiently clear statement of the offence charged to determine whether or not correspondence with an offence in Irish law existed and that the latter contention was not consistent with the views expressed in the Judgments in Wyatt -v- McLoughlin 1974 I.R. 78, see per Walsh, J. at page 398 and Griffin, J. I rejected these contentions.
Mr. Ford accepted that an agreement to commit a crime, whether that crime is punishable on indictment or summary Conviction, is an indictable conspiracy and an offence at common law in Ireland. However, he relied on paragraph 6 of the Plaintiff's Affidavit sworn on the 1st of November 1988 that there was evidence which would justify prosecution of the Plaintiff with the substantive offences but that despite this evidence the warrants alleged charges of conspiracy to commit the substantive offences. He submitted that in Ireland such circumstances charges of conspiracy could not be brought successfully and to bring such charges constituted unfair procedures ...in breach of the constitutional guarantee of fair procedures and an abuse of the process of the Court. No authority was cited in support of this proposition. This he concluded prevented any correspondence existing between the offences specified in the warrants and any offence under the law of the State.
I am not persuaded that the evidence contained in paragraph 6 of the Affidavit (which relates to persons other than the Plaintiff), if accepted, does not also admit that there was evidence justifying charges of conspiracy to commit the substantive offences. It has not been established to my satisfaction that in the circumstances of this case to bring charges of conspiracy would in Ireland constitute unfair procedures or an abuse of the process of the Court. I accept Mr. Fennelly's submission that both the charges of conspiracy on the warrants and the underlying charges correspond with offences under the law of the State; that in the case of one warrant the charge exists in Irish law under the Prevention of Corruption Act, 1906 - the same statute under which the offence arises in English law and in the case of the other charge that it corresponds with an offence under Section 10 of the Criminal Justice Act of 1951.
For these reasons I refuse the Plaintiff's claim for an order under Section 50 of the Extradition Act, 1965.
