BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Newell v. O'Toole [2002] IEHC 22 (22nd March, 2002)
URL: http://www.bailii.org/ie/cases/IEHC/2002/22.html
Cite as: [2002] IEHC 22, [2003] 1 ILRM 1

[New search] [Printable RTF version] [Help]

Newell v. O'Toole [2002] IEHC 22 (22nd March, 2002)

THE HIGH COURT
No. 1999 480 Sp
NICHOLAS NEWELL
APPLICANT
AND
PATRICK O’TOOLE
RESPONDENT

Judgment of Mr. Justice William M. McKechnie dated the 22nd day of March 2002
  1. On the 14th day of November 1997, under the hand of William Richard Wilson, Resident Magistrate and a Justice of the Peace for Northern Ireland, two Warrants of Arrest issued for and in respect of the applicant, who then had an address at Bella, Collooney, County Sligo. The first Warrant, identified as “Warrant A” recited as follows:-
“Whereas a complaint has been made on oath and in writing that the defendant, Nicholas Newell, formerly of 6 St. Cianan’s Villas, Duleek, County Meath, Ireland, and now of Bella, Collooney, County Sligo, Ireland, on the 8th day of January 1996, in the County Court Division of Antrim, with a view to gain for himself dishonesty procured an employee of Driver and Vehicle Licensing Northern Ireland to execute a valuable security, namely a cheque for £2,325, by deception, namely by falsely representing that vehicle license serial number 90259265 was taken out by him or transferred to him with vehicle registration number TIB 1182 and that he was therefore entitled to a refund of £2,325.

Contrary to Section 19(2) of the Theft Act (Northern Ireland) 1969.
“THIS IS TO COMMAND YOU, to whom this warrant is addressed, to arrest the said Nicholas Newell and bring him before a magistrates court for the said county court division.”

  1. The second Warrant, “Warrant B”, was couched in the following terms:- “Whereas a complaint has been made on oath and in writing that the defendant, Nicholas Newell, formerly of 6 St. Cianan’s Villas, Duleek, County Meath, Ireland and now of Bella, Collooney, County Sligo, Ireland, on the 30th day of December, 1995, in the County Court Division of Antrim, dishonestly and with a view to gain for himself, in furnishing information to Driver and Vehicle Licensing Northern Ireland produced a document required for an accounting purpose, namely Form V 90(N.I.) for the refund of a vehicle licence, which to his knowledge was misleading, false or deceptive in a material particular in that it purported to show that the said licence was taken out by him or transferred to him with vehicle registration number TIB 1182.

Contrary to Section 17(1)(b) of the Theft Act, (Northern Ireland) 1969.

THIS IS TO COMMAND YOU to whom this warrant is addressed to, to arrest the said Nicholas Newell and bring him before the Magistrates Court for the said County Court Division”.

  1. On the 17th of August 1998, the Respondent, as Assistant Commissioner of An Garda Síochána, authorised the execution of both of these Warrants in this State by any member of the Garda Síochána. On either the 13th or 17th of September, 1998, the precise date being irrelevant, the said Warrants were executed and the applicant brought before the District Court. Ultimately by Order dated the 16th day of November, 1999, that Court, having indicated that in relation to Warrant A the corresponding offence in this State was “obtaining by false pretences contrary to the Section 32(1) of the Larceny Act, 1916” and in relation to Warrant B was “uttering a forged document contrary to Section 6 of the Forgery Act, 1913”, ordered that the applicant, pursuant to Section 47(1) of the Extradition Act, 1965 as substituted by Section 12 of the Extradition (Amendment) Act, 1994, be delivered into the custody of a member of The Royal Ulster Constabulary for conveyance onwards to the authorities in Northern Ireland. On the same day a Special Summons was issued wherein the applicant sought his release pursuant to the provisions of Section 50 of the aforesaid Act of 1965 as amended. It is in respect of that claim for his release that this Court presently gives judgment.

  1. Section 50 of the Extradition Act, 1965, insofar as is material reads as follows:- “50 (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 -

1. Section 3, as substituted by Section 3(a) of the Amendment Act, defines revenue offence in the manner following -

“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 threat or use of force ...”

  1. In this case there are two issues both of which are relied upon by the applicant as the basis for seeking his release under Section 50. The first and by far the most principle suggestion is that neither the offence specified in Warrant A or the offence specified in Warrant B is an offence “in connection with taxes, duties, or exchange control”, and on that ground alone he asserts an entitlement to be discharged by this Court. The second issue relates to Warrant B only, in respect of which it is submitted that the indictable offence specified in the District Court Order namely “uttering a forged document contrary to Section 6 of the Forgery Act, 1913” is not in fact a corresponding offence in this jurisdiction to that alleged in the said Warrant. In addition, on this as a subsidiary ground, he also seeks his release from this Court.
  1. From an evidential point of view there are two Affidavits which have been filed in this case and which are of relevance. The first is an Affidavit of Mr. Michael Humphreys a Barrister practising out of the Royal Courts of Justice in Belfast. The second is that of a colleague of his namely, Geoffrey Miller who also has a practice in Belfast. From both Affidavits it would appear to be common case, that the Driver and Vehicle Licensing Agency, which is referred to in both Warrants, is an Agency within the Department of the Environment for Northern Ireland and is thus, for the purpose of this case, an emanation of that State. It would also appear that the general licensing of motor vehicles in Northern Ireland is now governed, in its entirety, by the Vehicle Excise and Registration Act, 1994 and not by the repealed provisions referred to by Mr. Humphreys. Nothing of significance turns on this as the essential part of the preamble in the 1971 Act is similarly worded in the current legislation. That states that the 1994 Act is “An Act to consolidate the enactments relating to vehicle excise duty and the registration of vehicles.” Section 1(1) of the Act provides that vehicle excise duty shall be charged in respect of “every mechanical propelled vehicle which is used, or kept, on a public road in the United Kingdom and shall be paid on a license to be taken out by the person keeping the vehicle”. Mr. Humphreys in the final paragraph of his Affidavit, having stated as his belief that the purpose of such duty is to raise funds for the Government, went on to say that:-
“The Driver and Vehicle Licensing Agency is a public body charged with the responsibility of collecting duties for the benefit of the Exchequer. In this regard there is no useful distinction to be drawn between the Agency and the Inland Revenue.”

  1. Mr. Miller in his evidence was more extensive, this not only in the views and opinions offered by him but also in setting out some of the background facts and some of the circumstances surrounding this intended prosecution. At paragraphs 6 to 8 inclusive he states:-
“6. I say that from a perusal of Mr. Humphrey’s Affidavit it would appear that his argument to substantiate the claim that the offences in question are revenue offences is because there is a loss to the Exchequer in the sum of £2,325. I say that I have had an opportunity of examining documents prepared in this case .

The Applicant accepts that he found a tax disc lying in Dublin Street, Monaghan sometime in November, 1995. The license was valid until September, 1996. In December, 1995, the Applicant took it to the Vehicle Licensing Office in Coleraine, where he filled in a form seeking a rebate of monies due on early surrender. In early January of 1996, the Applicant received a cheque for £2,325 which he duly cashed.

7. From the above recited facts, it is clear that the Applicant was not attempting to operate a lorry while avoiding his liability to the revenue. As previously noted, the 1994 Act lays down the requirements for the licensing of mechanical propelled vehicles. The penal provisions of this Statute specifically focus on offences of fraudulently evading payment of duty, either in it’s entirety or in part by, for example, misstating the capacity or type of vehicle to be licensed. In the present case, the Applicant is a person who, finding the property of another, seeks to obtain a pecuniary advantage for himself. I say that in examining the offences in question, Mr. Humpherys has omitted to analyse the conduct of the Applicant and the role this must play in the assessment of the type of offence it is.

8. By way of analogy, there are many instances of robbery of Post Offices, Social Security personnel and the like, where, on the analysis put forward by Mr. Humpherys, they would appear to constitute revenue offences, namely because there is a loss to the Exchequer, but quite frequently persons are charged under the provisions of the Theft Act as the Applicant in these proceedings has been charged”.

  1. In his helpful submissions presented orally and supported by written material, Mr. Feichin McDonagh S.C., makes the following case on his client’s behalf. Having referred to Peter Buchanan Limited v. McVey [1954] IR 89, The State (Hully) v. Hynes 100 ILTR 145 and Byrne v. Conroy [1998] 3 IR 1, Mr. McDonagh claims that these must be revenue offences as the entitlement to a refund arises in the context of statutory provisions dealing with vehicle excise duty. It is said that this excise duty has all the hallmarks of a tax or a duty within the meaning of the Act. It is imposed by a sovereign Government in respect of Northern Ireland and is sought for the purposes of raising revenue. This revenue is collected by an agency for the benefit of the Exchequer at large and is leviable on all persons using or keeping vehicles on the public roads of that State. There is therefore, resulting from the activities complained of, a loss to the Exchequer of that State. In addition, on this first issue, objection is taken to the evidence of Mr. Miller, which is quoted above, it being suggested that such matters are immaterial and constitute hearsay. Moreover and in any event it is further claimed that once the Court strictly construes the relevant provisions it should also conclude that these averments are irrelevant.

  1. On the “correspondence issue”, Section 1 (1) of the Forgery Act, 1913 was quoted as was subsection (2). It was claimed, relying on Kenny’s Outlines of Criminal Law 19th ed. 1965 at 375, Smith and Hogan’s Criminal Law 6th ed. 1988 p. 650 and The Law Relating to Dishonesty, LRC (43-1992) at 273, that the essence of the offence of forgery is that the document in question “tells a lie about itself” or as it is sometimes otherwise put “telling a lie does not become a forgery because it is reduced to writing: it is the document which must be false and not merely the information in it”.

  1. On behalf of the Respondent, Mr. McGuinness S.C. began his detailed submissions with a review of what the relevant authorities and statutory provisions were and having asked this Court to accept the evidence of Mr. Miller, he urged that the offences in question were not and could not be revenue offences. He pointed out that the penal provisions of the 1994 Vehicles Excise and Registration Act, focused specifically on the offences of fraudulently evading payment of duty, as example of which would be to mistake the capacity or type of vehicle to be licensed. Furthermore he submitted that the mere loss of money to the revenue, could not by itself and without more, bring an offence into the category of a revenue offence, because if it did, it would mean that many offences such as robberies from post offices, security personnel and the like, which undoubtedly result in a loss to the Exchequer, would, simply because of this, become revenue offences under the 1965 Act. His firm belief was that these offences were not covered by Section 50. On the point raised under Section 50(2)(c) of the Act he disagreed with the submissions made on behalf of the applicant.

  1. The general law on what constitutes “a revenue offence”, for the purposes of an outside agency seeking this Court’s assistance, has been dealt with, quite authoritatively, by both the present and former Supreme Courts. It is thus unnecessary for the purposes of this judgment, to look at such law in any depth but it is I think helpful to quote certain passages from the decision of Kingsmill Moore J. in the Buchanan case, supra. The following extracts are I believe of relevance to an understanding of the first issue which presents itself for consideration. These are as follows:-
“English Courts will not enforce a right otherwise acquired under the law of a foreign country which is ordinarily applicable in virtue of the English rules of the conflict of laws, where the enforcement of such right involves the enforcement of foreign penal or confiscatory legislation or a foreign revenue of law. The Court has no jurisdiction at common law to entertain an action for the enforcement, either directly or indirectly, of a penal, revenue, or political law of a foreign State ... The Courts ... do not take notice of the revenue laws of foreign states ( p. 100/101) These decisions establish that the Courts of our country will not enforce the revenue claims of a foreign country in a suit brought for the purpose by a foreign public authority or the representative of such an authority: and that, even if a judgment for a foreign penalty or debt be obtained in the country in which it is incurred, it is not possible to successfully sue in this country on such judgment ( p. 102)

In the absence of any express authority defining the limits of the principle that the revenue legislation of a foreign state will not be given effect, directly or indirectly, in our domestic tribunal, it is natural to seek for guidance in the reasons which were assigned for establishing this principle when it was first enunciated ...

In the case of Moore v. Mitchell (2) (he Judge Learned Hand said) while the origin of the exception in the case of penal liabilities does not appear in the books, a sound basis for it exists, in my judgment which includes liabilities for taxes as well. Even in the case of ordinarily municipal liabilities, a Court will not recognise those arising in a foreign state, if they run counter to the “settled public policy” of its own. Thus a scrutiny of the liability is necessary always in reserve, and the possibility that it will be found not to accord with the policy of the domestic State. (p. 105)

Judge Learned Hand is well-known as an authority ... whatever be the origin of the rule and I suspect it dates from the statutists or even early - the Learned Judge’s statement of the practical basis which led to its adoption in the Courts of common law and his reasons for its observance seem to me convincing and illuminating (p. 106).

If I am right in attributing such importance to the principle then it is clear that its enforcement must not depend merely on the form in which the claim is made. It is not a question whether the Plaintiff is a foreign State or the representative of a foreign State or its revenue authority. In every case the substance of the claim must be scrutinised and if it then appears that it is really a suit brought for the purpose of collecting the debts of a foreign revenue, it must be rejected. Mr. Wilson has pressed upon me the difficulty of deciding such a question of fact and has relied on ‘ratio ruentis acervi’. For the purpose of this case it is sufficient to say that when it appears to the Court that the sole object of the suit is to collect tax for a foreign revenue, and that this will be the sole result of a decision in favour of the Plaintiff, then a Court is entitled to reject the claim by refusing jurisdiction” (p. 107 ).

2. See also the decision of Lardner J. In McDonald v. McMahon HC UR 13/1/89.


  1. This judgment of Kingsmill Moore J. was liberally applied in Byrne v. Conroy [ 1998] 3 IR 1. In that case Mr. Byrne with others was charged, by a Complainant described as a Senior Investigation Officer with Her Majesty’s Customs and Excise Investigation Division, at Paisley in Scotland, of conspiring to defraud the Intervention Board for agricultural produce, of monetary compensation amounts due in respect of the export of grain from Northern Ireland to the Republic by dishonesty avoiding payment due to the board through several alleged and specified devices. His extradition to Scotland was sought and the sole issue was whether or not the offences were revenue offences. The judgment in the High Court, having thoroughly reviewed all relevant law, concluded that they were not so covered in that phrase as contained in subsection (2)(a)(iii) of the 1965 Act and accordingly directed his extradition. The Supreme Court unanimously approved the judgment of Kelly J. and in the process also took the opportunity of endorsing and reaffirming the opinion of Kingsmill Moore J. in Buchanan supra. From Byrne the following principles emerge as being directly applicable to this case. These are as follows:-

  1. In accordance with the aforesaid decisions I accept without reservation that the relevant part of Section 50, coupled with the definition of “revenue offence” must be construed strictly. If from this approach there should emerge a reasonable doubt or ambiguity or if a reasonable construction could avoid an adverse consequence for the applicant, then that course is the one which I should follow. But this principle of interpretation does not in my view render inadmissible the evidence of Mr. Miller as set out at paragraph 7 above. Indeed in accordance with certain passages from the judgment of Mr. Justice Kingsmill Moore in Buchanan, I feel that this Court is perfectly entitled to look at the substance of the offence in question and to closely examine the detail of it. The reason for permitting such an approach, certainly in the context of Buchanan, was to ensure that the requesting State would not dress up the offence in respect of which the extradition was sought in such a manner so as to give the ostensible but erroneous impression that the same was unrelated to the fiscal or revenue policies of that country.

  1. In the absence of this exercise it would be of little benefit to the extradited person and would be an affront to the extraditing Court, if subsequent to the granting of the Order sought, it emerged quite clearly that in essence the true nature of charge proffered was indeed revenue based. And so the taking upon itself of this valuable course so that not only is the form looked at but also is the substance. Whilst it might be said that the intended beneficiary of this approach, would generally if not always be the accused person, nevertheless I cannot see anything in principle as to why, if invited, the Court should not be entitled to look at all of the circumstances and in particular address its mind to the essence of what is claimed. Once it remains conscious that the Act of 1965, is one which is penal in nature with the consequences which follow from that description, then in my view there is nothing to stop this Court, in this case, from considering the evidence of Mr. Miller which incidentally, as to its accuracy has not been challenged in these proceedings.

  1. That being so I ask myself what claim based on taxes, duties or exchange control does the requesting authority have, make or assert as against the applicant? There is no question but that Mr. Newell did not own or have an interest in or operate, or otherwise have possession or use of the motor vehicle identified at any time. Or indeed have any vehicle which was in any way connected with the scheme devised by him and implemented in December 1995 and January 1996 in order to obtain the sum of £2,325 from the Vehicle Licensing Office in Coleraine. There is no suggestion that he misstated the capacity of a motor vehicle owned by him or its type, kind or make. He was involved, according to the evidence, with what a lay person would describe as the “theft of money” .

  1. In charging him as the Northern Ireland Authorities have, they have not accused him of any offence under Revenue Legislation.. Rather he is charged under the Theft Act (Northern Ireland) 1969. It is not in my view tenable to suggest that he is charged with a breach of some revenue provision or that, if he was tried on either or both of the offences recited in the Warrants, he would be facing any specific or indeed any “revenue offence” known to Northern Ireland. The Authorities would not, by such a prosecution be attempting to enforce revenue law. This applicant quite simply was a person who found the property of another and who attempted, successfully, by using what he found, to obtain for himself a monetary gain.

  1. If for example he was civilly sued for the amount of the cheque the form of proceedings I suspect would be quite unlike those taken by the Revenue Commissioners if taxes or duties were lawfully due and unpaid. There is no doubt but that there is a connection and interaction between the Revenue Authority/Exchequer on the one hand and the applicant on the other. This arises out of the ownership of the cheque which was cashed and also from the method by which it was allegedly obtained. But these “connecting aspects” , in my view fall far short of what would be required in order to constitute a “revenue offence” for the purposes of section 50 (2)(a)(iii) of the 1965 Act.

  1. Lets suppose a person intercepted in the post, a cheque or money order payable to or from the Revenue Commissioners, whether that be a return of income tax, VAT or the payment of a state pension, unemployment assistance or allowance or otherwise, could it be said that the resulting offence was within the statute a revenue offence of the requesting State? The examples of a post office robbery or a robbery from Social Security Personnel may not altogether be identical with what happened in this case but nevertheless simply by way of an analogy it would be difficult to see how such a person could successfully defend extradition proceedings by raising the plea as is raised in this case. Accordingly I believe that what is alleged against the applicant has it’s basis in a claim falsely made by him and erroneously paid by the Licensing Authority. The resulting charges in my opinion for the reasons above given are not “revenue offences” as so defined in the relevant section. I would therefore refuse the applicant relief in this regard.

  1. Commencing with section 41, Part III of the 1965 Act, as amended, deals with the endorsement and execution of certain Warrants. Save for the point hereinafter dealt with, no issue arises in these proceedings as to the validity of the endorsement or execution of either Warrant which as previously stated issued on the 16th of November, 1997. Section 47 of the Act reads as follows:-
“47. - (1) Where a person named or described in a Warrant is before the District Court in pursuance of this Part, that Court shall, subject to the provisions of this Part, make an Order for his delivery into the custody of a member of a police force of the place in which the warrant was issued, for conveyance to that place, and remand him until so delivered.
(1)(A)........................
(2) An Order shall not be made under subsection (1) if it appears to the Court that 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.
(3) .............
(4) ...............
(5) ...............”

20. In relation to Warrant B the District Court when making this Order, which it did on the 16th of November 1999, came to the conclusion that the offence therein specified did correspond with an indictable offence in this State and identified the uttering of a forged document contrary to Section 6 of the Forgery Act, 1913 as being that offence. An issue arises as to the correctness of this designation with the applicant arguing that there is no correspondence between both offences. Mr. McGuinness on the other hand submits that the District Court had a choice in that it could have specified the offence which in fact it did or alternatively it could have regarded as the comparable - the offence of attempting to obtain.

21. The role of the Court in considering this issue of correspondence has been set out in several decisions and is now well defined. In The State (Furlong) v. Kelly and Anor. [1971] IR 132 at 141 Ó Dálaigh C.J. said
“where, as in the present case, the offence specified in the Warrant does not arise under a pre-treaty statute which has be en continued in force in Ireland, the District Court is put on inquiry by section 47 subsection 2 of the Act of 1965 . The basic inquiry is to discover whether the several ingredients which constitute the offence specified in the Warrant, or one or more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence (the ‘corresponding offence’) is an indictable offence or, if not, whether it is punishable on summary conviction by imprisonment for a maximum period of at least six months. As to the first limb of the inquiry, the position may be illustrated algebraically as follows. If the English offence consists of, say, four essential elements a, + b, + c,+ d, then a corresponding Irish offence exists only if it contains either precisely those same four essential elements or a lessor number thereof. If the only Irish offence that can be pointed to has an additional essential element (that is to say, if the Irish offence may be defined as a, + b,+ c,+ d,+ e) then there is no corresponding Irish offence to satisfy the requirements of Section 47 subsection 2 of the Act of 1965 for the simply reason, that ex hypothesi, conduct a, + b, + c, + d, falls short of being an offence under Irish law or, in plainer words it is not an offence. It is fundamental to extradition that no one shall be extradited for acts or omissions (the offence alleged in the Warrant) which, if repeated within the State would not offend against our law”.

22. Dealing with the same theme, Henchy J. in Hanlon v. Fleming [1981] IR 489, at 495 said “the third point raised the question whether the specified offence has the required correspondence with an offence under the law of this State. The relevant decisions of this Court, such as The State (Furlong) v. Kelly , White v. McLoughlin and Wilson v. Sheehan show that it is a question of looking at the factual components of the offence specified in the Warrant, regardless of the name given to it and seeing if those factual components, in their entirety or in their near entirety, would constitute an offence which, if committed in this State, could be said to be a corresponding offence of the required gravity”.

23. More recently the Supreme Court again revisited this area in the case of Stanton v. O’Toole , SC. U/R 9/11/2000. Having reviewed the relevant authorities Mrs. Justice Denham in her judgment, concluded as the authorities show, that this Court is not bound by the decision of the District Court on this issue, and indeed, if an appeal should be taken from this Court to the Supreme Court, that Court is not bound by either view.

24. Section 1(1) of The Forgery Act, 1913 contains a definition of forgery with subsection (2) defining falsity for that purpose. Section 6 deals with the uttering of a forged document and states that a person convicted thereof shall be liable to the same punishment as if he himself had forged the document. Cases including The Queen v . Reilly 1896 1 Q B 309, and R. v. Potter and Anor 1958 2 AER 51, were referred to in the context of this issue, as were passages from Archibold and Charleton, et al, on Criminal Law, dealing with obtaining by false pretences.

25. From my point of view it is not necessary to consider these authorities in any detail because I have no doubt but that the facts underlying the offence contained in Warrant B, namely the offence in Northern Ireland which is, contrary to section 17(1)(b) of the Theft Act (Northern Ireland) 1969, are facts which are reasonable capable of corresponding in Irish law to an indictable offence or to an offence which is punishable on summary conviction for a maximum period of at least six months. The offence in Warrant A has in this jurisdiction it’s comparable in section 32(1) of the Larceny Act, 1916, which in effect is the offence of obtaining by false pretences. Though I would be of the view that the designation given by the learned District Judge in relation to Warrant B, namely, uttering a forged document contrary to Section 6 of the 1913 Act, is one capable of being supported, nevertheless in my opinion the more appropriate corresponding offence in relation to this said Warrant is the offence of attempting to obtain by false pretences contrary to common law.

26. In conclusion therefore, as must follow from above, I refuse to direct the release of the applicant under section 50 of the 1965 Act.

© 2002 Irish High Court

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/cases/IEHC/2002/22.html