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A.G. v. Parke [2004] IEHC 20 (24 February 2004)

 
THE HIGH COURT

Record Number: 2002 No. 4 Ext.

BETWEEN:

THE ATTORNEY GENERAL

APPLICANT

AND
MARTIN PARKE

RESPONDENT

Judgment of Mr Justice Michael Peart delivered the 24^th day of February 2004:

This is an application brought by the applicant for an order under section 47 of the Extradition Act, 1965, as amended, for the return of the respondent to the United Kingdom on foot of seven warrants, four of which (Warrants A, B, C and D) have issued from the Crown Court at Harrow, Middlesex, and three of which (Warrants E, F, and G) have issued from the Magistrates Court for the Petty Sessions Area of Barnet. All Warrants are dated 14^th December 2001.

Warrants A charges as follows:

"That he on the 23^rd day of June 1998 supplied a controlled drug of Class A namely 2.38 grams of powder containing diamorphine to Gary Baldrey in contravention of section 4(1) of the Misuse of Drugs Act 1971. Contrary to Section 4(3)(a) of the Misuse of Drugs Act 1971."

Warrant B charges the same offence of supply, but in respect of a different date and to a different person.

Warrant C charges him with possession with intent to supply, and in the following terms:

"That he on the 26^th day of August 1998 had in his possession a controlled drug of Class A namely 4.288 grams of powder containing diamorphine with intent to supply it to others in contravention of Section 4(1) of the Misuse of Drugs Act 1971 contrary to Section 5(3) of the Misuse of Drugs Act 1971."

Warrant D charges him with simple possession in the following terms:

" That he on the 26^th day of August 1998 had in his possession a controlled drug of Class A namely 81 Physeptone tablets containing methadone in contravention of Section 5(1) of the Misuse of Drugs Act 1971 Contrary to section 5(2) of the Misuse Of Drugs Act 1971."

Warrant E charges him with supply in the following terms:

"On the 30^th day of March 1999 at Park View Court, Roe Green, London NW9, England supplied a controlled drug of Class A namely .261 grams of powder containing diamorphine to Thomas Cullinane in contravention of Section 4(1) of the Misuse of Drugs Act 1971 Contrary to Section 4(3) of the Misuse of Drugs Act 1971."

Warrant F charges him possession with intent to supply, in the following terms:

"On the 30^th day of March 1999 Park View Court, Roe Green, London NW9, England had in his possession a controlled drug of Class A namely 5.657 grams of powder containing diamorphine with intent to supply it to other in contravention of Section 4(1) of the Misuse of Drugs Act 1971 Contrary to Section 5(3) of the Misuse of Drugs Act 1971."

Warrant G charges him with simple possession in the following terms:

" That he on the 30^th day of March 1999 at Kingsbury Road, London NW9 had in his possession a controlled drug of Class A namely .303 grams of powder containing diamorphine in contravention of Section 5(1) of the Misuse of Drugs Act 1971 Contrary to section 5(2) of the Misuse Of Drugs Act 1971."

Each warrant is accompanied by an affidavit from James Green dated 14^th December 2001, who is a Detective Constable in the Metropolitan Police and he deposes in respect of each warrant that he witnessed the signing of each warrant by the judge/justice in question, and he exhibits in each such affidavit the respective warrants.

Also produced to this court in respect of each warrant is a Certificate from a Court Clerk which certifies that in respect of each warrant the offence charged therein is such as satisfies the minimum gravity requirement, namely that it is by the law of England and Wales an indictable offence (not being an offence triable on indictment only at the instance or with the consent of the accused), and not also a summary offence.

There was also opened to this court the affidavit of Sgt. Michael Heffernan of An Garda Siochana, who is the officer in this jurisdiction who arrested the respondent on foot of these warrants on the 7^th May 2002. In that affidavit he deposes that on the 7^th May 2002, he was on duty at the Four Courts where he met a man whom he believed to be Martin Dominic Parke, also known as Dominic Michael Parke, also known as Martin Parke. He states that he introduced himself to this person by producing and showing to him his official Garda identification card and telling him his name, rank and station. He also states that he told the man in question that he had in his possession seven warrants for his arrest, and informed him that the purpose of the warrants was to extradite him to the United Kingdom. He also informed him of the contents of the warrants, and that having asked the man whether he was the person known as the names to which I have just referred the man said "Yes".

He then deposes to carrying out the arrest at 12.50pm on the 7^th May 2002, and to having shown him a copy of each warrant and having served him with same, together with a copy of each affidavit and certificate, and to then bringing him before the High Court, giving evidence of arrest, and of endorsing and handing into court the warrants in question where they are retained.

In court before me, and during his evidence, Sgt. Heffernan pointed out a man at the back of the court, and identified him as the man whom he had arrested on the 7^th May 2002, and who is named in the warrants.

It would appear that as of the date of these warrants, the respondent was in custody here serving a five year sentence, and that the Garda authorities here were holding the warrants here until such time as the respondent was released from custody. They monitored the situation and awaited his release in order to re-arrest him on foot of these warrants.

Before the applicant can obtain an order under Section 47 of the Act, it must be established to the satisfaction of the court that the offences charged on the warrants on foot of which the respondent is arrested correspond with an offence in this jurisdiction. Prior to the Extradition (European Union Conventions) Act, 2001, it had been well settled in the judgments of our courts that in this regard the applicant must satisfy this court that the act constituting the offence charged in the warrant would if done in this jurisdiction constitute an offence.

Section 26 of the 2001 Act introduced an amendment to Section 42 of the 1965 Act by inserting subsection (3) therein as follows:

"For the purposes of this Part, an offence specified in a warrant corresponds with an offence under the law of the State if –

(a) the act constituting the offence so specified would, if done in the State on the day the warrant is produced under section 43(1)(b), constitute an offence under the law of the State, or

(b) in the case of an offence so specified consisting of one or more acts including any act committed in the State, such act constituted an offence under the law of the State on the day on which it was committed or alleged to have been committed."

In this case, the Assistant Commissioner endorsed the warrants for execution on the 30^th January 2002, they having been produced to him for that purpose pursuant to the provisions of Section 43(1) (b) of the 1965 Act. That is the date therefore in respect of which it must be assessed whether the acts constituting the offences specified in these warrants would, if committed here, constitute an offence in this jurisdiction.

The applicant submits as far as correspondence is concerned all the offences with which the respondent is charged in the warrants referred to are offences in this jurisdiction by virtue of various provisions of the Misuse of Drugs Act, 1977. Therefore there is no question but that on the day the warrants were produced to the Assistant |Commissioner for endorsement by him on 30^th January 2002, the various acts would, if done an that date in this jurisdiction constitute offences here.

In respect of Warrants A, B and E, the applicant submits that the offences charged, being that of supply of a controlled drug, namely diamorphine, corresponds to an offence in this jurisdiction under section 21(2) of the Misuse of Drugs Act, 1977 as amended.

In respect of Warrants C and F, the applicant submits that the offences charged, namely possession of a controlled drug, namely diamorphine, with intent to supply it to others, corresponds to an offence here under Section 15 of the Misuse of Drugs Act, 1977, as amended.

In respect of Warrants D and G, the applicant submits that the offences charged, namely possession of a controlled drug, namely diamorphine, corresponds to an offence her under Section 3 of the Misuse of Drugs Act, 1977, as amended.

Counsel for the respondent, Michael O'Higgins SC has accepted that in relation to the charges of possession with intent to supply contained in Warrants C and F, there is correspondence with the equivalent offence in this jurisdiction.

In relation to Warrants D and G, being the simple possession charges, Mr O'Higgins submitted first of all that in relation to these charges, and also those in Warrants A,B, and C, the warrants contained no detail of the location at which these offences were alleged to have been committed, but in fact a closer examination revealed, and this was accepted by him, that the location is in fact described, although the wording of the warrant is very slightly misleading in this regard. But the location of the alleged offences is in fact identified.

He also made the point in relation to the offences in Warrants D and G (simple possession) that there was a heavy onus on the prosecution to comply strictly with the statutory requirements in relation to this application, since it is a penal statute, and he referred to authorities in that regard, to which I need not refer. In this regard he submitted that while Counsel for the applicant had referred to the offences in this jurisdiction corresponding to those in the particular sections of the Misuse of Drugs Act, 1977 to which I have referred, and the Regulations made thereunder, he had not produced the Regulations in question in order to satisfy this court on this application that diamorphine is a controlled drug and therefore one which the respondent was not entitled to have possession of. He submits that this court therefore has no evidence that diamorphine is a controlled drug, and that the Regulations ought to have been proved by the applicant. In this regard the position is that under Section 3(1) of the Misuse of Drugs Act, 1977 it is provided that:

"Subject to subsection (3) of this section and section 4(3) of this Act, a person shall not have a controlled drug in his possession."

That subsection (3) provides that:

"The Minister may by order declare that subsection (1) of this section shall not apply to a controlled drug specified in the order, and for so long as an order under this subsection is in force the prohibition contained in the said subsection (1) shall not apply to a drug which is a controlled drug specified in the order."

Section 4 (3) of the Act provides:

"It shall be lawful for any person, or a person of a class or description specified in regulations under this section, to have in his possession in prescribed circumstances or for prescribed purposes, as may be appropriate, a controlled drug specified therein, provided that any conditions specified in the regulations or attached to a licence granted under this Act and applicable in the particular case are complied with by him."

Mr O'Higgins's submission is predicated on the possibility that there is in fact a Regulation made under either of these provisions which would render it lawful in this jurisdiction for the respondent to do what he is charged with doing in the United Kingdom, and that it is incumbent upon the applicant to exclude that possibility by satisfying this court that there is no such regulation in existence.

However, his submission ignored the provisions of Section 22 of the Act which provides as follows:

"22. – (1) In any proceedings for an offence under this Act, it shall not be necessary to negative by evidence the existence of any –

(a) order made under section 2 of this Act,

(b) licence, permit or authorisation under this Act,

and accordingly the onus of proving the existence of any such licence, permit or authorisation shall be on the person seeking to avail himself thereof.

(2) In any proceedings for an offence under this Act it shall not be necessary for the prosecutor to prove that at the time of the offence –

(a) a defendant was not a person to whom regulations made under section 4 of this Act applied,

(b) a defendant was a person to whom an exception under regulations made under section 5 of this Act applied, and

in case a defendant claims that –

(1) by virtue of the said section 4 he had lawfully in his possession a controlled drug,

(2) he is a person to whom such an exception applied,

the onus of proving such lawful possession, or that he is such a person, as may be appropriate, shall be on the defendant.

It seems to follow inevitably in the present case, that the onus is on the respondent in this case to establish that he comes within any of the exceptions or permits which may have been regulated for, and that since he has failed to do this the submission must fail.

I should also refer to the fact that the Schedule to the Misuse of Drugs Act, 1977 itself lists the drugs which comprise controlled drugs, for the purposes of the Act, and it is clear from a perusal of that Schedule that both diamorphine and methadone are listed in the Schedule and are therefore controlled drugs. Section 2(1) of the Act defines a controlled drug as being one "which is either specified in the Schedule to this Act or is for the time being declared pursuant to subsection (2) of this section to be a controlled drug for the purposes of this Act." It is not therefore necessary that the applicant should have produced the Regulations in question for the purpose of satisfying the court that these drugs are controlled drugs.

Again it would be for the respondent to discharge the onus of satisfying this court that diamorphine and/or methadone had been by regulation taken out of the classification of being a controlled drug.

In relation to the charges in Warrants A,B, and E, namely the charge of supply simpliciter, as opposed to possession or possession with intent to supply, Counsel for the applicant has, as I have already stated, submitted that the corresponding offence in this jurisdiction is that created by Section 21(2) of the 1977 Act, which provides:

"Any person who, whether by act or omission, contravenes or fails to comply with regulations under this Act shall be guilty of an offence."

Section 5 of the Act clearly empowers the Minister to make regulations, inter alia, for the purpose of prohibiting, or permitting subject to conditions or exceptions, the "supply, the offering to supply, or the distribution of controlled drugs (See Section 5(1)(iii) of the Act). But I am satisfied that the applicant cannot simply refer to the provisions of Section 21(2) of the Act in order to make out correspondence in relation to the supply charges in these Warrants. The Minister may or may not have made such regulations, and it is a matter for the applicant to satisfy this court that such Regulations have been made and are still in force, and this has not been done. I am not therefore satisfied that correspondence has been made out in relation to the charges set forth in Warrants A,B and E herein.

I am satisfied that the respondent is properly before this court for the purpose of the application under section 47 of the 1965 Act, and that all the formalities of his arrest by Sgt Heffernan are complied with, and that he has been properly identified.

I am also satisfied that the minimum gravity requirement of the offences have been satisfied, and I am also satisfied that each of the offences charged in Warrants C,D,F, and G herein, correspond with offences in this jurisdiction, as of the date of production of the warrants to the Assistant Commissioner in January 2002 as submitted by the applicant.

I therefore grant the order sought in respect of those Warrants only, (but not in respect of Warrants A,B and E), namely for the delivery of the respondent at some convenient point of departure from the State into the custody of a member of the Metropolitan Police, London, being the police force for the place in which the warrants have been issued, for conveyance to that place, and I remand him in custody until he is so delivered.