JUDGMENT of Murray C.J. delivered on the 31st day of July 2008
In this matter the High Court has made an order directing the surrender of the appellant to the relevant authorities of the Lithuanian Republic pursuant to the provisions of the European Arrest Warrant Act 2003, as amended. The order was made on foot of a European Arrest Warrant from a judicial authority in Lithuania, the issuing state addressed to Ireland, the executing state.
The appellant has appealed against the order of the High Court.
The European Arrest warrant in question contains a single request for the surrender of the appellant. That is to say, his surrender was sought and granted for the purpose of requiring him to serve a term of imprisonment imposed by a Court in Lithuania, the issuing state. The term of imprisonment imposed was two years and nine months. The sentence relates to three offences. Thus it is to be noted that a single sentence, one might call it a composite sentence, was imposed by the Lithuanian Court in respect of the three offences. Unlike many cases, the request for surrender does not relate to two or more offences in respect of which a term of imprisonment was imposed for each offence. This is an important fact as it concerns one of the grounds of appeal as shall be explained later in this judgment.
Although the surrender of the appellant was neither sought nor ordered for the purpose of prosecuting him for any offence, s. 10 of the Act of 2003 as inserted by s. of the Criminal Law (Terrorist Offences) Act 2005, and the Framework Decision, (cited in full below) provide that an order for surrender may be made in respect of a person on whom a sentence of imprisonment has been imposed for an offence to which the European Arrest Warrant relates.
Surrender to the state which issued the warrant for the purpose of serving a sentence already imposed is however precluded in respect of any offence unless “a term of imprisonment or detention of not less than four months has been imposed on the person in respect of the offence in the issuing state”. (S. 38(1)(a)(ii)). This is the so-called “gravity test” and the sentence in this case obviously passes that test.
For a very long time the law on extradition (to use that term in a generic sense) in this country stipulated that extradition could only be ordered in respect of an offence which was an offence against the law of this State or corresponded to such an offence. This is also the position generally adopted by other states. The underlying principle is that a country, as a general policy, often does not extradite persons to another country for the commission of an act which is not unlawful under its own law. In those circumstances, a Court, when considering whether to extradite verifies that the relevant offence corresponds to an offence under its law. Accordingly, in extradition proceedings generally in this country it was, and still is to a significant extent, necessary for a Court to verify that the offence or offences in respect of which extradition, or surrender under the Act of 2003, is sought corresponds to an offence under the law of the State.
Section 38(1)(b) of the Act of 2003 created an exception to this requirement to verify that an offence referred to in the European Arrest Warrant correspond to an offence under the law of the State. I will refer later to the section in greater detail but for the moment it is sufficient to note that it provides that an order for surrender may be made in relation to an offence, without having to verify whether it corresponds to an offence in the State, if, “the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies or is an offence that consists of conduct specified in that paragraph, …”. Much turns in this appeal on the nature of and limits to that exception particularly as regards the latter part of that provision. The exception in s. 38(1)(b) reflects Article 2.2 of the Framework Decision (Council Framework Decision on the European Arrest Warrant and the Surrender Procedures Between member states, 13th June 2002, 2002/584/JHA). The Decision is set out in the Schedule to the Act of 2003.
Paragraph 2 of Article 2 contains the list of offences which the Framework Decision, and the Act, stipulate should be the subject of surrender without any requirement as to correspondence. Article 2 provides as follows:
"1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.
2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant: (emphasis added)
- participation in a criminal organisation,
- terrorism,
- trafficking in human beings,
- Sexual exploitation of children and child pornography,
- corruption,
- illicit trafficking in narcotic drugs and psychotropic substances,
- illicit trafficking in weapons, munitions and explosives,
- fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests,
- laundering of the proceeds of crime,
- counterfeiting currency, including of the euro,
- computer-related crime,
- environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
- facilitation of unauthorised entry and residence,
- murder, grievous bodily injury,
- illicit trade in human organs and tissue,
- kidnapping, illegal restraint and hostage-taking,
- racism and xenophobia,
- organised or armed robbery,
- illicit trafficking in cultural goods, including antiques and works of art,
- swindling,
- racketeering and extortion,
- counterfeiting and piracy of products,
- forgery of administrative documents and trafficking therein,
- forgery of means of payment,
- illicit trafficking in hormonal substances and other growth promoters,
- illicit trafficking in nuclear or radioactive materials,
- trafficking in stolen vehicles,
- rape,
- arson,
- crimes within the jurisdiction of the International Criminal Court,
- unlawful seizure of aircraft/ships,
- sabotage.
3. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission pursuant to Article 34(3), whether the list should be extended or amended.
4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.
The principle of corresponding offences is referred to in the Framework Decision as “double criminality” and Article 2.2 requires surrender to be ordered without verification of “double criminality” for certain offences to which it applies.
For offences other than those covered by Article 2.2 the Decision permits, but does not require, member states to apply the corresponding offence or double criminality principle (Article 2.4). It is a straightforward permissive section and the State, relying on that section, requires an offence in a European Arrest Warrant to be a corresponding offence, unless it falls within s. 38(1)(b) which in turn refers to Article 2.2. By virtue of s. 38(1) surrender may only be ordered if the offence in the warrant is either a corresponding offence or comes with the exceptions of s. 38(1)(a).
Rulings of the High Court
In this case, of the three offences in respect of which the appellant is being sought for the purpose of serving a single term of imprisonment, the learned High Court judge found that the second and third offences as listed in the European Arrest Warrant corresponded to offences under the law of the State. No issue has arisen in this appeal concerning that determination. Therefore there is no bar to surrender in relation to those two offences as they fulfil the test set out in s. 38(1)(b).
As regards the first offence specified in that warrant the learned trial judge found that it is not an offence which corresponds to an offence under the law of this country. The respondent did not appeal that determination and that is not in issue in this appeal.
Having found that the first offence was not an offence which corresponded with an offence in the State the question then arose whether it is an offence to which Article 2.2 applies. If Article 2.2 did apply then the central issue in the appeal concerning the application of s. 38(1)(b) would not have arisen. However, the learned trial judge determined that the first offence did not fall directly within Article 2.2 and therefore could not be dealt with on the basis that it was an Article 2.2 offence as listed in the Decision. Again that determination is not in issue in the appeal.
The principal ground for the learned trial judge’s conclusion in that respect was the failure of the issuing state to tick a box indicating that the first (or indeed any) of the offences in the warrant were one of the offences listed in Article 2.2. Article 2.2 lists some 32 offences.
The standard form of the European Arrest Warrant, as annexed to the Framework Decision, replicates the list of offences specified in Article 2.2 and opposite each offence in the list is a square box. Where a state seeks the surrender of a person and wishes the request in respect of a particular offence be dealt with without verification of double criminality the standard form requires it to tick or mark the relevant box so as to specify that an offence in the EAW is an offence to which Article 2.2 applies. No box for any of the offences listed in Article 2.2 was ticked in the EAW in this case. Hence the learned trial judge’s uncontested decision that none of the three offences were Article 2.2 offences.
Ticking the Box
Since the fact that the issuing state did not tick any of the boxes concerning the Article 2.2 offences listed in the EAW is a central aspect of this case, I think I should set out why an issue arising from the absence of a tick in a box is not an issue of mere lawyers’ formalism but is an essential element in the preparation and issuing of an EAW as determined by the Council of Ministers which adopted the Framework Decision. One of the objectives of the Framework Decision is “the introduction of a new simplified system of surrender of sentenced or suspected persons”. (Recital 5 of the Framework Decision). As I have remarked before in another case, whether that objective will be achieved to the extent desired remains to be seen having regard to the somewhat vague language and curious construction of the Decision, at least as regards some of its provisions. In any event Article 2.2 of the Decision is one of the provisions clearly designed to simplify the surrender process by eliminating the need for the verification of the double criminality of a wide but nonetheless limited range of offences for which surrender may be sought. In principle it is an effective provision for that purpose.
Article 8 of the Decision sets out the information which should be contained in a European Arrest Warrant and refers to the form which the warrant should take by reference to a form for such a warrant contained in the Annex to the Decision. Obviously such a provision was essential in order to give effect to the new system of surrender.
Article 8(1)(d) requires that the warrant shall state: “the nature and legal classifications of the offence, particularly in respect of Article 2;” ( emphasis added).
That such a warrant should contain a statement by the issuing state of the nature and classification of the offence for which surrender is sought hardly requires comment but the emphasis on the classification of the offence for the purposes of paragraph 2 Article 2 is obviously of fundamental importance if the simplified process, without a need for verification of double criminality, is to be availed of by the issuing state and applied by the executing member state.
Article 2 only applies to the specified offences in Article 2.2 and it is for the issuing state to identify any offence in relation to which surrender is sought, as defined by its own law, as being one of the offences listed in Article 2.2.
The form of European Arrest Warrant contained in the Annex to the Decision provides that this is to be achieved by ticking or marking the box opposite the offence in the Article 2.2 list. By ticking this box the issuing state brings into application the provisions of Article 2.2 to an offence mentioned in the warrant. It also means that the requested state can, under the terms of implementing national legislation, rely on that ticked box as meaning that the offence in the warrant is an Article 2.2 offence according to the law of the issuing state. If the box is not ticked it means that the offence in the warrant is not an Article 2.2 offence within the meaning of the national law of the issuing state.
For example, in this case, if the issuing judicial authority in Lithuania had ticked one of the boxes so as to identify the first offence in the warrant as one of the Article 2.2 offences then the Courts in this country would rely on that statement, for that is in effect what it is. There would be no need to consider whether the offence in question was an offence which corresponded to an offence in this State, or address the question of double criminality, as the Framework Decision calls it.
Ticking the box is therefore more than a mere formality. It is a very straightforward thing which the issuing state is required to do. It is a simple step but one
The essential role of the issuing state with regard to Article 2.2 is underlined by the Court of Justice in Advocaten voor de Wereld VZW v. Leden van de Ministerraad, (Case C 303/05) [2007] ECR I -3633, where it was stated:-
"51 Consequently, even if the Member States reproduce word-for-word the list of the categories of offences set out in Article 2(2) of the Framework Decision for the purposes of its implementation, the actual definition of those offences and the penalties applicable are those which follow from the law of ‘the issuing Member State’. The Framework Decision does not seek to harmonise the criminal offences in question in respect of their constituent elements or of the penalties which they attract."
This is all the more reason why the executing state, particularly in the absence of harmonisation of criminal offences, is not in a position to determine, for the purpose of the system of surrender envisaged by the Act and the Decision, whether an offence in a warrant is one to which, by reference to the law of the issuing state, Article 2.2 applies. The executing state must rely on the classification given to the offence "particularly in respect of Article 2" as Article 8 of the decision puts it, by the issuing state. This, the latter does by completing the EAW correctly and ticking the box for any offence to which, by reference to its own law, Article 2.2 is to apply.
Thus the Framework Decision adopted by the Council requires the issuing state to state whether an offence in relation to which surrender is sought is defined by its law as one of the Article 2.2 offences. The means provided for doing that is the ticking of the relevant box. It is in effect a statement by the issuing state for the purposes of Article 8 of the Decision as referred to above and is essential to the applicability of Article 2.2. It is the only means by which a Court in an executing state can ascertain from the European Arrest Warrant that Article 2.2 applies to an offence mentioned in the warrant.
If there is no box ticked then the requested state has no basis for concluding that the offence in question is one of those specified in Article 2.2. On the contrary, it must conclude that it is not. That flows from the decision of the issuing state not to classify an offence as one of the offences in Article 2.2.
The absence of a ticked box cannot simply be considered as an omission or failure. It is the choice of the issuing state. It knows its own law. The executing state does not know the other country’s law. If the offence is not defined in the law of the issuing state as one of the Article 2.2 offences then of course it must not tick any box. A decision by the issuing state not to tick any box must be assumed to have been taken on the basis that the issuing state’s law did not define the offence as one of the Article 2.2 offences.
Thus in this case, the Courts here on the basis of the European Arrest Warrant issued by the Lithuanian Judicial Authority, are bound to decide that none of the three offences to which the European Arrest Warrant relates are offences in Article 2.2. That is what the learned trial judge correctly decided.
Accordingly, the ticking of a box opposite any one of the offences listed in Article 2.2 is not a mere question of form but is a substantive and essential ingredient of the surrender process provided for by the Framework Decision. The tick in the box determines, in law, whether Article 2.2 is relevant to the request contained in any particular European Arrest Warrant.
Having referred to the general legal parameters I now turn to the specifics of this case and first of all the facts and circumstances.
Background and conclusions of the High Court
The term of imprisonment already imposed on the appellant by the Court in Lithuania relates, as already mentioned, to three offences.
It is common case that the offence or offences to which the term of imprisonment relates must be an offence the surrender for which is not prohibited by the Act of 2003 or the Framework Decision. That is why s. 38(1) commences with a statement – “a person shall not be surrendered to an issuing state under this Act in respect of an offence unless - …”. The subsection then goes on to set out the conditions which must be fulfilled as regards any particular offence.
The nature and circumstances of the three offences which the sentence of imprisonment relates are set out in the judgment of the learned trial judge.
As regards the first offence he stated:
“1st offence:
This is described in paragraph (e) of the warrant as being an accessory with another person, J. Sabataitis, “in producing a forged payment instrument”.
The facts giving rise to this offence are set out as follows:
“Late in May 2004, [the respondent] received from J. Sabataitis a Maestro payment card No. 6763760057794763 of AB bank Hansabankas and handed it over to unidentified persons for the purpose of forging it and the later (sic) forged it by re-writing the magnet tape information belonging to the bank teller A.S. Oslo, Norway.”
I have assumed that the word appearing as ‘later’ is intended to read ‘latter’.
As regards the first offence. The following was the decision of the learned trial judge as regards the correspondence of the first offence with an offence in the State:“The facts giving rise to the offence can be paraphrased by saying that the respondent received a bank card from J. Sabataitis, and then handed it over to another person so that it could be ‘forged’, and that other person forged it by re-writing the magnetic information. The essence of the offence under s. 25(1) of that Act is that it is the accused who forges the instrument. It is not alleged in this case that the respondent took any part in the act of forgery, but merely that he handed over the card so that it could be forged. To my mind that act does not give rise to an offence under s. 25(1) of that Act. My own inquiries have not revealed any other offence here which that act would give rise to. “ Correspondence in accordance with the requirements of s. 5 of the 2003 Act has not therefore been established.”
Accordingly having considered the question of double criminality, or correspondence as it is referred to in the Act of 2003 itself, the learned trial judge concluded that the first offence did not correspond to any offence in the State. The State has chosen not to make that an issue in this appeal.
With regard to the 2nd and 3rd offence the learned trial judge summed them up in his judgment as follows:
“2nd offence:
This is described in the warrant as “abetting J. Sabataitis to use a forged instrument to initiate a financial transaction and for attempting to misappropriate another’s property by means of deceit.”
3rd offence:
This is described as “attempting to acquire by deceit for his benefit a digital camera…”
The facts underlying the 2nd and 3rd offences are set forth as follows:
“On 5th September 2005 at about 4pm in the premises of the store Gulbé, located at ……, he suggested J. Sabataitis to buy a Samsung i5Digimax digital camera from the domestic appliance department ………by using knowingly forged documents to initiate a financial transaction. When J. Sabataitis agreed and they were together in the aforementioned store, J. Sabataitis gave, with the intent of initiating a financial transaction, to the seller the AB bank Hansabankas payment card No. 6736760057794763 containing re-written information of Bank Teller AS Oslo, Norway that he possessed and that was knowingly forged, and by such actions they attempted to acquire by deceit for his benefit a digital camera Samsung i5 Digimac that cost LTL 1,125, but did not completed (sic) the offence due to the circumstances beyond their control because the seller suspected that the payment card No. 6763760057794763 of AB bank Hansabankas was forged and J. Sabataitis was detained by police officers.”
The learned trial judge concluded that each of these offences corresponded to an offence under the law of the State namely s. 25(1) and s. 6(1) respectively of the Criminal Justice (Theft and Fraud Offences) Act 2001.
His decision that those two offences complied with the correspondence requirement of s. 38(1) is not in issue in this appeal and nothing arises in relation to them which could prohibit the surrender of the appellant.
The Issue Before the High Court
While there was of course a number of issues and questions to be determined by the High Court before an order for surrender could be made, the ultimate issue which the High Court had to determine, and the only one from which this appeal stems, relates to his conclusion that the first offence was not an offence which corresponded to an offence under the law of the State but nonetheless one to which the very last part of s. 38(1)(b) of the Act applies.
Section 38 in Part III of the Act, I would recall, provides as follows:
“38.—(1) Subject to subsection (2), a person shall not be surrendered to an issuing state under this Act in respect of an offence unless—
(a) the offence corresponds to an offence under the law of the State, and—
(i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or
(ii) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term of imprisonment,
or
(b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies or is an offence that consists of conduct specified in that paragraph, and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than 3 years.”
(2) ………
(3) ………” (my emphasis).
As can be seen from s. 38(1) a person cannot be surrendered in respect of any offence unless that offence falls under one of three alternative general headings. These are:
(a) an offence which corresponds to an offence under the law of the State, or,
(b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies, or
(c) it is an offence that consists of conduct specified in paragraph 2 of Article 2 of the Framework Decision.
As already explained the first offence does not fall under the first alternative heading (a) above because it is not a corresponding offence.
Neither does it fall under the second alternative at (b) above, as the learned High Court Judge also found, because the issuing state did not identify it as an offence to which paragraph 2 of Article 2 of the Framework Decision applies. It refrained from ticking any box relating to any such offence. Moreover that position was emphasised by the issuing state when, in the European Arrest Warrant itself, it set out full descriptions of the first offence, (along with the other offences), under the heading “Full descriptions of offence(s) not covered by s. 1 above:”. The section 1 referred to is the section containing the list of offences to which paragraph 2 of Article 2 of the Framework Decision applies.
That being the case the learned trial judge was left with the task of endeavouring to determine whether the first offence fell within the third alternative referred to at (c) above. This case is principally concerned with the meaning and effect of that provision of s. 38(1)(b) of the Act of 2003 when it provides a third alternative basis on which an offence may be one for which surrender may be ordered. That particular part of the section is worth repeating, “… a person shall not be surrendered to an issuing state under this Act in respect of an offence unless - …the offence is an offence that consists of conduct specified in [paragraph 2 of Article 2].”
There is great difficulty in attributing any effective meaning for the purposes of the Act to that particular provision.
In principle the Courts seek to give a meaningful interpretation to any provision of an Act having regard to the terms of the provision, its context in the Act as a whole and the purpose of the Act.
There is no doubt that the learned trial judge was valiant in his efforts in endeavouring to give this impenetrable provision some meaningful effect.
Having referred to the sentence “An offence that consists of conduct specified in that paragraph” that is to say paragraph 2 of Article 2 the learned trial judge went on to state:
“The addition of the last sentence is deliberate and must serve the purpose of extending the category of exception from prohibition of surrender beyond either an offence which does not correspond, as well as an offence which is a listed offence under Article 2.2 of the Framework Decision. The Court must give a meaning to the sentence. It suggests to me for the purpose of the first offence in the present case, that even though there is no offence here which directly corresponds to the first offence, and even though the issuing state has not ticked the box in paragraph (e) of the warrant to indicate that it is an Article 2.2 offence, this Court must nonetheless make the order for surrender if the conduct disclosed in the warrant is conduct which consists of acts which are fraudulent in a general sense. There must be a distinction to be drawn between it being the ticked offence of ‘fraud’ and being an offence, albeit one which is not corresponding to one here, consisting of conducting of a fraudulent nature. This seems to spread the net very wide; so that surrender will be prohibited under Part III only in very exceptional cases. While the addition of the sentence under scrutiny seems to serve the purpose of limiting the scope of the prohibition against surrender, it is nevertheless a feature of the arrangements which the member states have signed up to in the Framework Decision that a margin of appreciation is allowed for the differences which will inevitably exist between the criminal laws of the many member states operating the European arrest warrant. One of the expressed purposes of the Framework Decision is to remove the complexities and causes of delay under the former extradition arrangements between member states. Each country now participates in the new arrangements on the basis of mutual trust and confidence in the laws of the other states. That would suggest that if one member state has convicted a requested person for conduct which is an offence in that state, then this State should respect that law and allow the requesting state to recover the fugitive offender so that he or she can serve the sentence which has been imposed. The exception provided for here in s. 38(1)(b) of the Act is where, even though the listed offence has not been ticked, the conduct concerned comes within the concept of some offence within Article 2.2 – in this case being of fraud.
In my view, the conduct of which the respondent was convicted in the first offence is conduct coming under a broad concept of fraud, even though the precise activity would not be covered by a particular offence in this country as I have found, and even though the box marked ‘fraud’ has not been ticked. It is relevant in this regard to point to the fact that the card referred to in the first offence in May 2004 is the same card which was used in the later offences in September 2005.”
As can be seen the learned trial judge concluded that the first offence in this case came, in his view, “within the concept of some offence within Article 2.2 – in this case being a fraud.”
While the learned trial judge was perfectly correct in stating that one of the specific purposes of the Framework Decision, to which the Act of 2003 gives effect, is to remove the complexities in extradition arrangements between member states I have to say that the manner in which the provision providing for the third alternative hardly serves that purpose. He is also correct in stating that the content of the last sentence in paragraph 1(b) is to provide for an additional category of offences for which correspondence is not required. The issue is, can it be applied for that purpose?
While fully appreciating the difficulties which the interpretation of the provision in question posed for the learned trial judge I would respectfully disagree with his analysis and conclusions as regards its applicability to the first offence set out in the warrant in this case.
Apart from other considerations referred to later in this judgment, the learned trial judge, having referred to the purposes of the Framework Decision and the basis of mutual trust on which it is to be operated concluded: “That would suggest that if one member state has convicted a requested person for conduct which is an offence in that state then this State should respect the law and allow the requesting state to recover the fugitive offender”. That is in effect to say that once a person is convicted in one member state that is sufficient for his or her surrender without the correspondence of offences being required for any offence. But this is not what the Act of 2003 says or envisages. Section 38(1) of the Act prohibits the surrender to an issuing state in respect of any offence unless the conditions set out in paragraphs (a) or (b) are fulfilled. If the Act had the meaning inferred by the High Court there would be no need for a provision in the terms of s. 38 as a whole nor any need for a reference to Article 2.2 of the Decision which only gives dispensation from the correspondence test for a limited number of offences.
Furthermore it was concluded that surrender should be ordered “if the conduct disclosed in the warrant is conduct which consists of acts which are fraudulent in a general sense.” (emphasis added). But the third alternative in s. 38(1)(b) on which all this rests refers to an offence “that consists of conduct specified in that paragraph” that is to say in paragraph 2 of Article 2, and not in the warrant.
Article 2.2 does it not itself specify a form or course of conduct from which it can be deduced that a particular offence is one to which it applies. The paragraph does not refer to offences in any conceptual way but simply lists a number of offences by way of general name or label and it is exclusively for the issuing member state to determine what offences as defined by its law are offences to which Article 2.2 are applicable. This is what Ireland has done in s. 32 of the Act. The section is quoted later in the judgment. In the Leden van de Ministerraad case, cited above, it was argued that Article 2.2 of the decision breached a fundamental principle of the community law, namely legal certainty in the application of community law on the grounds that the list of offences contained in Article 2.2 is so vague and imprecise. It was also claimed that “The offences set out in that list are not accompanied by their legal definition but constitute very vaguely defined categories of undesireable conduct.”
At page 50 of the judgment of the Court in that case it acknowledged that the principle of certainty or of “the legality of criminal offences and penalties” implies “that legislation must define clearly offences and the penalties which they attract.”
In rejecting the allegation of breach of such a principle the Court referred (at paragraph 51) to Article 2.2 of the decision according to which the offences listed in that provision give rise to surrender if they are punishable in the issuing member state “and as they are defined by the law of the issuing member state.” It then went on to make the statement, cited earlier in this judgment, that “The Framework Decision does not seek to harmonise the criminal offences in question in respect of their constituent elements or of the penalties which they attract.”
The Court then concluded in the ensuing paragraph: “Accordingly, while Article 2.2. of the Framework Decision dispenses with verification of double criminality for the categories of offences mentioned therein, the definition of those offences and of the penalties applicable continue to be matters determined by the law of the issuing member state which … must respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU, and, consequently, the principle of the legality of criminal offences and penalties.” (emphasis added).
In short the principle of legal certainty or “of the legality of criminal offences” is observed because the offences to which Article 2.2 applies are not defined by the vague terms of Article 2.2 itself but by the national law of the issuing state and only by that means. It is not open to a Court to ascertain whether an offence is an offence to which Article 2.2 applies by looking at some conceptual element by reference to Article 2.2 alone.
Consequently I am of the view that the learned trial judge was incorrect in concluding that the first offence came within “the concept of some offence within Article 2.2 in this case being a fraud.”
I sympathise with the dilemma with which the learned trial judge was faced in interpreting this part of s. 38(1)(b) because the interpretative problem which it presents is not one of resolving some ambiguity but in making sense out of it at all. That no doubt is why, in the passage I have cited from his judgment he made the statement “The Court must give a meaning to the sentence” but of course it can only strive to give it a meaning that is reasonably open to it and which can be discerned from the terms of the provision itself in the context, needless to say of the Act as a whole and the Framework Decision. I would add at this point there is no corresponding or related provision in the Framework Decision and there is no suggestion that there was any.
I now turn to consider the meaning, if any, which can be attributed to the provision in question in its own particular terms.
‘An offence that consists of conduct specified in that paragraph’ – What does it mean?
That, as it might be said, is a good question particularly in the light of the fact that paragraph 2 of Article 2 does not purport to specify conduct but specifies offences. It begins “The following offences …” which is followed by the phrase “as they are defined by the law of the issuing member state, …” Therefore it all depends on what conduct the law of the issuing member state, and not paragraph 2, defines as an offence.
It is true that the commission of an offence such as ‘terrorism’, ‘corruption’, ‘fraud’, ‘computer related crime’ or ‘racism’, to name some of the offences in the Article 2.2 list, involves the commission of an unlawful act or acts which constitute such offences. But the name or label given to an offence says nothing as regards the conduct deemed by the national law of the issuing state to constitute a crime. (See citation of Ministerraad above).
Paragraph 2 of Article 2 does not specify what the crime of racism consists of by way of conduct no more than it does for any other offence. Again, it is for the issuing state to decide whether or not its national law defines the particular conduct which it alleges against the person whose surrender is sought, as one of the offences listed in Article 2.2. That is what the Framework Decision as referred to in the Act requires.
In the Ministerraad case the Advocate General, for the purpose of rejecting the submission that Article 2.2 offended against the principle of legal certainty due to the vague descriptions of the offences listed in Article 2.2 stated at paragraph 104 of his Opinion : “Thus the certainty required by that principle must be demanded from the substantive criminal law of the issuing member state … It is clear that a correctly drafted European Arrest Warrant must be based on acts which are defined in law as offences in that state. The criminal law of the member state which executes the warrant simply has to provide the assistance requested and, if the measure transposing the Framework Decision so provides, makes surrender conditional on the conduct concerned also being classified as a criminal offence by its own legislation, with the exception of the offences referred to in Article 2.2 to which the principle of legality also applies.” (emphasis added).
Accordingly, an issuing state must, for the purpose of the European Arrest Warrant, state that an offence in such a warrant is an offence to which Article 2.2 applies if it wishes that paragraph to apply to an offence in the warrant.
That no doubt is why s. 32 of the Act of 2003, which applies to European Arrest Warrants issued by this State, provides that “For the purposes of paragraph 2 of Article 2 of the Framework Decision, the Minister may, by order, specify the offences under the law of the State to which that paragraph applies”.
That is also why Article 8(1)(d) of the Framework Decision expressly imposes on the issuing state the obligation to classify the offence in the warrant issued by it “particularly in respect of Article 2”. Section 11(1)(b) of the Act reflects this in requiring the issuing state to classify an offence in the warrant.
As regards the present case for example, the list of offences in Article 2.2 include ‘fraud’, ‘swindling’ and ‘forgery of means of payment’ but paragraph 2 provides no basis for determining what conduct, even of a fraudulent nature, would classify an offence in a warrant as one, and if so which one, if any, of these offences. Indeed, even though the appellant, as regards the first offence, is alleged to have handed over a kind of bank card to another person for the purpose of forging it, the Lithuanian Judicial Authority has made it clear in this case that such conduct does not constitute fraud, swindling or forgery or any other offence in Article 2.2. Even then the conduct referred to can only be ascertained from the warrant and not from paragraph 2 of Article 2 as s. 38(1)(b) purports to require.
The flaw in the last part of s. 38(1)(b), which contains what I have referred to as the third alternative, is that there is no conduct specified in paragraph 2 of Article 2 by reason of which it is impossible for a Court in the executing state to decide that an offence in a warrant “consists of conduct specified” in paragraph 2 of Article 2. That particular provision is simply a badly drafted provision which can have no meaningful effect in the operation of the Act in relation to European Arrest Warrants. This is not the first case in which I have felt it necessary to comment adversely on some provisions of the Act of 2003, as amended.
I have already stated that it is common case in this appeal that the first offence mentioned in the warrant in relation to which the term of imprisonment was imposed is not an offence within the first two alternatives of s. 38(1) namely, it is not an offence which corresponds with any offence in this State and it is not an offence to which Article 2.2 applies.
Nor can it, for the reasons outlined above, be in some way captured by the third purported alternative in paragraph (b) of s. 38(1).
In those circumstances, as s. 38(1) itself provides, it is not an offence in relation to which an order for surrender may be made. I say ‘in relation to which’ because of course the surrender of the appellant is not sought for the purpose of prosecuting him for that offence but for the purpose of requiring him to serve a single term of imprisonment imposed for that offence and two other offences.
Surrender for serving the sentence referred to in the European Arrest Warrant
The question remains whether any order for surrender can be made on foot of the European Arrest Warrant issued in this case given that two of the three offences for which the sentence of two years and nine months was imposed are offences in relation to which a surrender order may be made.
As I pointed out at the outset and which is clear from the terms of the European Arrest Warrant, the sentence imposed is a single sentence, what one might call a composite sentence, imposed for the three offences collectively. If the appellant were to be surrendered to serve that sentence he would be surrendered to serve a sentence which was in part imposed for the first offence. I have already concluded above that the first offence is an offence for which s. 38(1) says the appellant should not be surrendered. There is obviously no basis on which this Court can apportion part of the sentence of two years and nine months among the three offences so that he could be surrendered for the purpose of serving the amount of the sentence which related to the second and third offence.
Since that cannot be done, and he cannot be surrendered to serve any sentence in respect of the first offence, the request for his surrender must be refused.
Section 17 of the Act of 2003 does make provision for surrendering in respect of some offences while refusing surrender for another offence or offences when there are multiple offences mentioned in the European Arrest Warrant. That section is clearly only intended to apply where the request in relation to each offence in the warrant is distinct and separate. Then the request in respect of each offence would be severable. Thus in this case if the return of the appellant had been sought in respect of three offences and he had been sentenced separately for each of those offences then s. 17 would have permitted the Court to make an order for his return to serve each of the separate sentences imposed for the second and third offence and refuse to surrender to serve the sentence in respect of the first offence. However, as I say, that is not the case here. The sentence for which his return is sought is not severable from the first offence and therefore he cannot be surrendered for the purpose of serving that sentence.
For the foregoing reasons I would allow the appeal and set aside the order of the High Court.
JUDGMENT of Mr. Justice Geoghegan delivered the 31st day of July 2008
I have had the opportunity of reading the judgments of the Chief Justice and of Macken J. and they are substantially to the same effect. As there are slight nuances of difference on two aspects, I would like to clarify my own position in respect of each of them.
On the question of whether the second alternative under section 38(1)(b) is workable or viable, I am in agreement with the Chief Justice. Understandably, a court or judge would want, if possible, to discern an operative meaning in any piece of legislation enacted by the Oireachtas. In this instance, however, I have reluctantly come to the conclusion that it is not possible. I consider that I am particularly entitled to take that view having regard to the established principle referred to in the judgment of the Chief Justice that the Act must be interpreted in the light of the Framework Decision. Section 38(1)(b) refers to “an offence that consists of conduct specified in that paragraph”, that paragraph, of course, being paragraph 2 of Article 2 of the Framework Decision. But this is where the faulty draftsmanship arises. That paragraph in the Framework Decision is intended as a list of “offences” not a list of categories of “conduct”. If the offence is considered by the requesting state to come within that list, it must give the executing state that information. The method of conveying that information is by the ticking of the boxes. The Irish courts cannot adjudicate on what courses of conduct might be criminal offences or particular types of criminal offences under Lithuanian law. If there is no correspondence therefore in the traditional sense, there cannot be extradition unless the offence has been ticked off in the appropriate box.
I rather doubt that there could be some hypothetical case with which the court is not now dealing in which that second alternative under paragraph (b) could properly arise.
The second matter relates to the sentencing issue. This was the subsidiary argument in the case. At first sight, it might be tempting to assume that Lithuanian sentencing principles were similar to Irish sentencing principles and, therefore, to interpret the sentence still to be served as being the same sentence for each of the three offences but intended to run concurrently. However, on reflection, any such inference would seem to be unjustified. The information which has been given to the Irish courts by the Lithuanian authorities is that the sentence is a combined sentence. That being so, the court cannot adjudicate as to whether the conditions under section 38 of the 2003 Act are complied with.
Otherwise, I am in complete agreement with both judgments.
MJELR v. Ferenca
Judgment delivered on the 31st day of July by Macken, J.
This is an appeal by the respondent/appellant from the judgment and order of the High Court (Peart, J) of the 24th May 2007 pursuant to which the learned trial judge ordered that the appellant be surrendered to Lithuania on foot of a European Arrest Warrant dated the 5th January 2007, being satisfied that there were no grounds pursuant to the European Arrest Warrant Act 2003 (“the Act of 2003”) upon which he should refuse the appellant’s surrender.
The grounds of appeal listed in the Notice of Appeal number eight in all but it became clear at the hearing that they can be grouped together essentially under three headings. Firstly, the learned High Court judge erred in law in ordering the surrender of the appellant where correspondence in accordance with the Act of 2003 had not been established. Secondly, the learned High Court judge erred in law in construing s.38(1)(b) of the Act of 2003 by determining that, although there was no correspondence pursuant to S.38(1)(a), and the issuing State had not, in the warrant, relied on the provisions of Article 2.2 of the Framework Decision, the High Court was nevertheless bound to order the surrender of the appellant. Thirdly, the learned High Court judge had erred in law in determining that the minimum gravity requirements outlined in the Act of 2003 had been met. In reality all three grounds are interlinked, in particular the first two grounds and it is appropriate therefore to deal with all of these grounds of appeal together.
According to the European arrest warrant the appellant was, on the 5th January 2006, sentenced to imprisonment for three particular offences. On the 8th March 2006 that sentence was suspended subject to certain conditions, after an appeal to the relevant appellate court. On the 15th September, 2006, by reason of an alleged breach of the conditions imposed by the appellate court to which the suspension was subject, Marijampoloe Region District Court in Lithuania ordered that the appellant serve the sentence imposed, namely, 2 years and 9 months, none of which has been served. The appellant’s surrender under the European arrest warrant is sought for that purpose.
The Judgment
In his judgment, so far as concerns the issues arising on this appeal, the learned High Court judge found that correspondence, in the sense required by s.5 and s.38(1)(a) of the Act of 2003 existed in respect of the second and third offences. He found that correspondence did not exist in respect of the first offence. However, having considered the conduct described in the warrant as constituting the first offence, he determined that it fell within the ambit of “fraudulent in the general sense” and therefore came within the second alternative set out in s.38(1)(b) of the Act of 2003. Both parties to the action agree that the issuing state had not relied on the provisions of Article 2.2 of the Framework Decision in the sense that it had not invoked any of the series of offences listed in that Decision, by ticking the appropriate box in the warrant itself, which otherwise followed the template annexed to the Framework Decision. The learned High Court judge found, finally, that the minimum statutory threshold concerning the penalty imposed had been met, and ordered the surrender of the appellant.
The Argument
Mr Kelly, BL, on behalf of the appellant points to the three separate offences appearing in the description included in the European Arrest Warrant and classifies these as being: (a) an accessory to the production of a forged payment instrument; (b) abetting the use of the forged instrument; and (c) attempting to misappropriate another’s property. As to the main thrust of the grounds of appeal, I set out his arguments first on the issue of correspondence.
Section 5 of the Act of 2003 reads as follows: “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 issued, constitute an offence under the law of the state.”
Section 38 of the Act of 2003 reads as follows:“(1) Subject to subsection (2), a person shall not be surrendered to an issuing state under this Act in respect of an offence unless-
(a) the offence corresponds to an offence under the law of the State, and-
(i) under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months, or
(ii) a term of imprisonment or detention of not less than 4 months has been imposed on the person in respect of the offence in the issuing state, and the person is required under the law of the issuing state to serve all or part of that term of imprisonment,(b) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies or is an offence that consists of conduct specified in that paragraph, and under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than 3 years.” (emphasis added)
According to counsel for the applicant, there is no Irish offence which corresponds to the first of the offences as above described in the European Arrest Warrant. The factual ingredients constituting this offence are described as the following: “Late in May 2004, S. Ferenca received from J. Sabataitis a maestro payment card number 6763760057794763 of AB Bank Hansabankas and handed it over to unidentified persons for the purpose of forging it and the later (sic) forged it by re-writing the magnetic tape information belonging to the bank teller A.S. Oslo, Norway.”
Invoking the decisions in Attorney General v Dyer [2004] 1IR 40 and Attorney General v Hilton [2005] 2 IR 375, both determined pursuant to the provisions of prior extradition legislation, counsel contends that the test for determining correspondence when analysing an offence under the law of another jurisdiction is well established, namely the courts look at the acts of the person sought as stated in the warrant, and considers whether such acts would constitute an offence in the State.
Counsel submits that the learned High Court judge was correct in applying the test mentioned in the above jurisprudence and was correct also in finding that, in consequence, as to the first offence, there was no correspondence with any Irish offence. He argues that the High Court correctly concluded that the surrender of the appellant on that offence was therefore prohibited by s.38(1)(a) of the Act of 2003.
Secondly, according to counsel for the appellant, what is fundamental to his case is that the requesting state, in not ticking the appropriate box in the European arrest warrant, has itself taken the offences outside the scope of Article 2.2 of the Framework Decision. He argues that the correct interpretation of s.38(1)(b) is that if the box is ticked in the European arrest warrant, it may still be appropriate for the High Court to look at the offences to ensure that these are corresponding offences within the Act of 2003. If the box, however, is not ticked by the requesting state, the High Court is obliged to investigate whether there is true correspondence pursuant to s.38(1)(a) of the Act, and may not surrender a person in the absence of such correspondence.
Thirdly, none of the offences set out in Article 2.2 include or cover any of the offences described in the warrant. Therefore, counsel submits, the learned High Court judge was wrong when he determined that, although there was no correspondence pursuant to the provisions of s.38(1)(a) of the Act of 2003 with the first offence, he was nevertheless bound to make an order for the surrender of the appellant because the conduct described in the warrant itself was “fraudulent in the general sense” and therefore within the second alternative to s.38(1)(b) of the Act of 2003. Such a finding, according to counsel, is not permitted in the context of S. 38 of the Act of 2003.
Counsel finally submits that neither the High Court nor this court should complete the document which was furnished by the issuing member state as being the European arrest warrant. This permits a member state to require and ensure correspondence. If Article 2.2 of the Framework Decision is not invoked by the issuing state, by ticking the appropriate box, correspondence must then be established pursuant to s.38(1)(a) of the Act of 2003. If, in the circumstances of a particular European arrest warrant, as here, it is unclear as to what was intended by the issuing state in not ticking any box in the warrant, such lack of clarity must be determined in favour of the appellant.
On behalf of the respondent Mr McCarthy, senior counsel, agrees that the first of the offences does not fall within the ambit of s.38(1)(a) in the sense that, according to the jurisprudence invoked on behalf of the appellant in that regard, this does not correspond with any offence within the State. However, he submits that the correct way to view the decision of the High Court is to understand that the Act of 2003 provides for two other circumstances in which the State may recognise and give effect to an appropriately completed European arrest warrant. Firstly, and the most simple way, is when an issuing state invokes Article 2.2 of the Framework Directive by ticking the appropriate box in the warrant. In that event, correspondence is not required to be established. S.38(1)(b) first alternative, makes this clear. There is however no requirement within the Act of 2003, or the Framework Decision, that the issuing state must specify the relevant Article 2.2 offence by ticking a box in paragraph (e) of the warrant. It has the option of doing so. Ticking the box or failing to do so is not determinative. This is clear from the second means by which a warrant can be given effect to. S.38(1)(b) of the Act of 2003, by its second alternative, provides that if an issuing state, instead of ticking the box, describes conduct which falls within one or other of the offences in Article 2.2, that too is sufficient. The purpose of this alternative is to limit the scope of exceptions to surrender, to remove existing complexities and to recognise the high level of mutual trust which must exist between the executing state and the issuing state. Viewed thus, he argues, the determination of the High Court judge was correct and the appellant was properly ordered to be surrendered, because the High Court judge correctly categorised the first offence, as described in the warrant, as being “fraudulent in the general sense”.
The respondent reminds the court the that in his judgment, the learned High Court judge found that the second and third offences came within the provisions of s.38(1)(a) of the Act of 2003, that is to say, that there was a true correspondence in the sense in which that concept is used in extradition jurisprudence, and that no question can or does arise in respect of those two offences.
Mr Kelly makes a supplemental submission on behalf of the appellant pursuant to s.17 of the Act of 2003. He says that the warrant was deficient, because there was no evidence that the penalty imposed in respect of any one of the offences came within the provisions of s.38(1). The sentence he says is a combined sentence, and there was no evidence that any one offence was punishable by a term exceeding the threshold. This was particularly so if this court accepted that the first offence did not correspond to any offence in the State. In that event, it was equally impossible to know what portion or element in the combined sentence applied to that first offence. All three would therefore have to fall.
The respondent contends that the learned High Court judge was correct in his finding on this issue.
Conclusion
As a preliminary matter, I find that the real argument of the appellant concerns only the first offence, although on its face the Notice of Appeal appears to cover all three. In his judgment, the learned High Court judge in dealing with the question of correspondence and Mr Kelly’s arguments, stated: “He submits that when the acts described in the warrant and which led to the conviction of the respondent in Lithuania are examined, it is clear that in the case of at least one of the offences, and possibly a second one, correspondence is not made out.”
I am not satisfied that the arguments presented on behalf of the respondent in respect of the correct interpretation and application of the provisions of the Act of 2003 are fully correct. Equally, the issues raised by Mr Kelly on behalf of the appellant are not easy to resolve, given the language used in the Act of 2003, in particular in Section 38(1). It may be useful therefore to set out some general comments on the question of correspondence and the manner in which the Act of 2003 deals with this. In law, a European arrest warrant has its basis in the Framework Decision of the Council of the European Union dated the 13th June 2002. The Act of 2003 was adopted, inter alia, to give effect to that Decision. One of the intentions of the Framework Decision, as set out at recital (5), was to provide for a new simplified system of surrender of suspected or sentenced persons for the purpose of their prosecution, or to serve sentences on conviction, making it possible to remove the complexity and the potential for delay inherent in existing extradition procedures. The 6th and 10th recitals in the Framework Decision further provide that the mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in certain circumstances. The recitals do not refer specifically to Article 2.2 or to the offences therein listed. These matters have been considered in the jurisprudence of this Court, and it is sufficient to refer by way of example to MJELR v Brennan, Supreme Court, unreported, 04 May 2007, where this court (Murray, C.J.) stated: “The Act of 2003, as amended, is the means adopted by the State to give effect to its obligations under the Framework Decision. As I stated in The Minister for Justice, Equality and Law Reform –v- Altaravicius (Supreme Court, 5th April, 2006, unreported) the Act must be interpreted in the light of the terms of the Framework Decision and in particular with regard to the objects to be achieved. This is the interpretative approach set out by the Court of Justice in relation to Framework Decisions in the Pupino case (C-105/03 ECJ 16th June, 2005). The system or mechanism of surrender sought to be established by the Framework Decision applies in all Member States of the European Union. Again, as I pointed out in Altaravicius: “Recital 5 in the preamble to the Framework Decision refers to “… the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences …” It has as its object “… to remove the complexity and potential for delay inherent …” in pre-existing extradition procedures. … As that Recital, Recital 6 and Article 1.2 make clear, it is founded on the mutual recognition of judicial decisions and judicial cooperation within the European Union. Recital 10 emphasises ‘the mechanism of the European Arrest Warrant is based on a high level of confidence between Member States’”.
The Articles of the Framework Decision provide for a relatively streamlined mechanism for achieving this arrangement, intended to be less cumbersome than that which originally existed in respect of bilateral arrangements between states. To that end Article 2 provides as follows:“1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.
2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:
— participation in a criminal organisation,
— terrorism,
— trafficking in human beings,
— sexual exploitation of children and child pornography,
— illicit trafficking in narcotic drugs and psychotropic substances,
— illicit trafficking in weapons, munitions and explosives,
— corruption,
— fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the
European Communities' financial interests,[and several others]
…4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.” (emphasis added)
These provisions are mirrored substantially, although not in an identical format, and not quite to the same intent, in Section 38 of the Act of 2003, already set out above.
The effect of Article 2.2 of the Framework Decision is that in respect of those listed offences “as they are defined by the law of the issuing Member State” correspondence with an offence in the executing member state is not required to be established. It will be noted that the list of offences include “fraud”. Whatever the rationale behind the adoption of this approach, the important consequence of Article 2.2, is that correspondence does not require to be established for the offences there listed.
In addition, the Framework Decision itself sets out in the form of a template annexed to it, a sample European arrest warrant, and in respect of which Article 8 requires certain information to be included, “in particular by reference to Article 2”. Article 2.2 is, in turn, put into effect in the template warrant by means of the inclusion of a corresponding list of the offences appearing in that Article (at any given time), which a requesting authority in an issuing state may tick so as to indicate that the offences in question “as defined by the law of the issuing Member State” fall within Article 2.2. The effect of ticking a box in the list appearing in the warrant is to generate a demand for surrender where no enquiry as to correspondence is required in the executing state.
Bearing in the mind the foregoing, it is necessary now to turn to the Act of 2003, and the judgment of the learned High Court judge. The entire of the Framework Decision, including the Annex comprising the template warrant, is scheduled to the Act of 2003. The provisions of Article 2.2 and the mechanism envisaged in the Annex to the Framework Decision are reflected in the first part of s.38(1)(b) of the Act of 2003, being the first of two alternatives there provided for. The first important matter to note is that correspondence is only required to be shown, so far as the Act of 2003 is concerned, under Section 38(1)(a). It is not required by, and not even mentioned, in Section 38(1)(b).
Next, the second alternative provided for in s.38(1)(b) must now be considered, as this is invoked on behalf of the respondent. I agree with the submission of Mr. McCarthy, that this provides, on its face, that even if Article 2.2 has not been invoked in the sense that the corresponding box in the European arrest warrant has not been ticked, nevertheless a person may be surrendered without any requirement for correspondence to be established, if the offence as described in the warrant consists of conduct specified in one or other of the offences listed in Article 2.2. However, although counsel contends that there are three mechanisms by which a European Arrest Warrant can be executed, pursuant to the Act of 2003, for reasons which I now set out, I am not satisfied, having regard to the Act itself, in particular s.38(1)(b), and to the Framework Decision, that the learned trial judge was correct when he stated that not ticking the box appearing in a warrant which otherwise follows the template attached to the Framework Decision was not determinative of the question whether the offences necessarily fall within Article 2.2 of the Directive or not.
The language used in the second alternative in s.38(1)(b) seems to me to mirror to some extent the provisions of Article 2.4 of the Framework Decision. But of course, as is clear from the extract set out above, Article 2.4 only covers offences other than Article 2.2 offences. It may be, although this is not at all clear, that the likely rationale behind this second alternative in s.38(1)(b) is to ensure that, even if the template is not used or not completed as envisaged in the annex to the Framework decision, for one reason or another, but nevertheless the conduct described constitutes an offence which could have been relied on by an issuing state by ticking an appropriate box, then the warrant is not to be rejected, or the appellant not surrendered on that basis alone. This alternative in s.38(1)(b) may well also have been adopted to recognise that the precise description of an offence according to Irish law, if it is not the same as that of an requesting state, will not necessarily undermine the full implementation of Article 2.2 of the Framework Decision, even though a box has not been ticked.
I consider this to be the likely meaning of the particular wording of s.38(1)(b) second alternative. Article 2.2 of the Framework Decision gives no right to an executing Member State to go behind the listed offences, once ticked, to require correspondence – correctly reflected in s. 38(1)(b) first alternative, and Article 2.4 enables a member state to require correspondence for all other offence, however described. S. 38(1)(b), second alternative, goes beyond what is envisaged in Article 2.2 as provided for in the template warrant annexed to the Framework Decision, to cover offences whose description could have led the issuing state to tick an offence in the equivalent box in the warrant.
Adopting the statutory framework implementing the Framework Decision, where a person is sought to be surrendered, the starting point must be Article 2.2, and s.38(1)(b), first alternative, working on an ascending scale from there. If the issuing state has adopted the template referred to above and has completed it by, inter alia, ticking a box or boxes, the matter is determined automatically pursuant to the provisions of s.38(1)(b), first alternative. Section 38(1)(a) does not supersede or have any precedence over s.38(1)(b). Indeed
s.38(1)(a) is specifically made subject to the provisions of subsection (b) of that section. If a court were first obliged to consider the provisions of s.38(1)(a) to ascertain whether or not correspondence existed pursuant to the provisions of s.5 of the Act of 2003 as interpreted by existing jurisprudence, the benefit of adopting the simplified mechanism in respect of the designated offences listed in Article 2.2 would be seriously undermined. I can find nothing in the Act of 2003 which suggests that this was the intention of the legislature and such an approach could not have been intended by the Oireachtas when giving effect to the Framework Decision in the Act of 2003. Indeed I consider the intention of the Oireachtas, as gleaned from the language of the section itself, to have the opposite meaning to that contended for by counsel on behalf of the applicant. I therefore reject his argument that the executing state is entitled to verify whether correspondence exists even if the box in the warrant has been ticked. It is only if s.38(1)(b) does not apply, that the High Court may look to provisions such as s.38(1)(a) to ascertain whether there is correspondence in accordance with s.5 of the Act of 2003. If it were otherwise then s.38 would have to have been drafted in a different manner, and would not have provided for the subsidiarity of s.38(1)(a) to s.38(1)(b).
I make the latter findings, because, on one interpretation of the judgment, it might be thought that the learned High Court judge had considered that the combination of s.5 and s.38 obliged him first to investigate whether or not the offences “correspond” by reference inter alia to existing extradition case law, and if there is no correspondence within s.38(1)(a), then to consider whether the warrant may be “saved” by the provisions of s.38(1)(b). In the present case it was determined first that the second and third offences corresponded to offences in the State, under the provisions of Section 38(1)(a). It may well have been that the learned High Court judge, faced with the contention that there was no correspondence between any of the three offences and any offence in the State, and the warrant itself being unclear, in the sense that no box was ticked, was able readily to dispose of the second and third offences in that manner, perhaps giving rise to the reservation I set out above.
It is against the above analysis that the rather difficult issues raised in the present appeal must now be resolved. In respect of the offences therein listed, it will be recalled that Article 2.2 of the Framework Decision provides that these are “as defined by the law of the issuing Member State” Under the second alternative provided for in s.38(1)(b) of the Act, it is not explicitly stated by reference to whose law “an offence that consists of conduct specified in that paragraph” is to be defined. There are, however, good reasons arising from the wording of the section itself why any such offence must also be defined by reference to the law of the issuing Member State. Firstly, logic would suggest that if it is a description of any of the offences “consisting of conduct specified in that paragraph” it must be, as the respondent contends, those offences to which Article 2.2 applies. However, the consequence of that must equally mean that the conduct in question is intended also to describe an offence as defined by the law of the issuing state.
Secondly, the offence, whether by reference to Article 2.2 directly or to “conduct specified in that paragraph” is one which, according to the subsection, must be, under the law of the issuing state, “punishable by imprisonment for a maximum period of not less than 3 years”. In the present case, the parties did not directly address this issue, certainly I am sure because it was not raised in the course of the hearing. However, since I have found that the second alternative provided for in s.38(1)(b) clearly only refers to Article 2.2 offences, if the conduct in question must also be punishable by reference to the issuing state’s prescribed sentencing code, that conduct could only refer to an offence as defined in that Member State, since its punishment regime could scarcely relate to an offence according to the law of any other Member State. In consequence, the learned trial judge could not, in my view, have been correct in finding it sufficient that the first offence met a description “fraudulent in a general sense”, upon which the appellant could be surrendered, without considering Lithuanian law, upon which he had no information.
I am driven to the conclusion that, while it may have been intended by the Oireachtas when including in the Act of 2003 the second alternative in s.38(1)(b), it would also be helpful to provide a facility to meet circumstances where a requesting member state did not adopt, strictly, the simple ticking mechanism provided for in the Framework Decision, and while I would be reluctant to hold that that part of s.38 (1)(b) has no function, particularly at a time when the European Arrest Warrant is a relatively new and unusual instrument, I find nevertheless that the second alternative provided for in the section has neither practical effect, nor does it appear to comply with what is envisaged in the Framework Decision itself as being a simple practical easily adopted and final mechanism in respect of those offences listed in Article 2.2. For the reasons set out now, it certainly could not apply to the European Arrest Warrant furnished in the present appeal.
The final reason why I consider that the learned trial judge was incorrect in the present case in finding that the offence, while not corresponding an offence in the State within the meaning of s. 38(1)(a), could nevertheless be saved by s.38(1)(b), is because of the very manner in which the template warrant is constructed, and in the present case, the warrant actually completed. In the template warrant, annexed to the Framework Decision and also to the Act of 2003, and also as used by the issuing state here, its format is very clear, including the self-contained section of the warrant dealing with “Offences”. This lists the several offences found in Article 2.2 of the Framework Decision. Under subsection (e) I of this section, an issuing state is requested to tick, if applicable, one or more of that long list of offences. This option is then followed by the statement under subsection (e) II which reads:“Full description of offence(s) not covered by section I above.”(emphasis added)
In the warrant completed in the present case, it is under this latter heading one finds the description of the particular conduct constituting the offences for which the appellant was sought to be surrendered. There was no evidence that, according to Lithuanian law, this conduct described any offence listed in Article 2.2 of the Framework Decision, and the reasonable conclusion to be drawn from the warrant is to the opposite effect.
In the foregoing circumstances I am satisfied that the appellant cannot lawfully be surrendered to the requesting state on the first offence listed in the arrest warrant, it being accepted by the respondent that the offence does not correspond to an offence under Irish law.
The subsidiary ground : the threshold test
The legal submission on this ground of appeal is based on the argument that, because the sentence imposed, according to the warrant, is one of 2 years and 9 months for all three offences, and according to counsel for the applicant, is a cumulative sentence, it is not possible to determine, in the circumstances which arise, that is to say if the first offence falls, which part of the sentence applies to either of the surviving convictions. I make no finding at all based on the more general argument that the warrant would have to fall even if all three offences were ones upon which the appellant could have been surrendered.
Article 2 of the Framework Decision reads as follows:“A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.”
The provisions of this article have been transposed, in the Act of 2003, by s.38. This has been set above, and only s.38(1)(a) is of relevance here. It, in turn, provides for two alternatives, namely (a) an offence which is punishable for a maximum period of not less than 12 months, or (b) a term of imprisonment of not less than 4 months has been imposed in the issuing state, and the person is “required” under the law of the issuing state to serve all or part of that term of imprisonment. On their face these are not mutually exclusive, but in the scheme of the Framework Decision and the Act of 2003, I think it is probable that (a) refers to warrants sought in respect of the prosecution of offences and (b) refers to warrants sought in respect of sentences imposed.
In this case, the second and third offences are each liable to punishment of up to 3 or 6 years, so they clearly overcomes the first possible threshold. s.38(1)(a)(ii) sets an alternative threshold. In the event the appellant was sought to answer the charges he could be surrendered without difficulty as the threshold in s.38(1)(a)(i) would be met. If, however, as is clearly the case, a person is sought so as to serve a sentence actually imposed, the threshold drops to four months. I think the correct interpretation of s.38(1)(a)(ii) is that when the act speaks of “required under the law of the issuing state to serve all or part of that term of imprisonment” this really means that, according to the warrant, the person is “requested” to be surrendered for that purpose. That appears to follow, in my view, from a reading of Article 8 of the Framework Decision. On the face of the warrant, the two sentences imposed exceed this lower threshold also.
The difficulty arises because of the fact that the warrant gives the details of the sentences in the form of a global sentence. It is, on the face of the warrant, unclear whether the 2 years and 9 months sentence imposed was made up of the same sentence in respect of all three individual offences, each to run concurrently with the other, or is composed of separate and different sentences in respect of each of the three convictions, all to run consecutively, and therefore combining to make up the term, or simply that it is a single global sentence imposed in respect of all three offences. The appellant in the written submissions contends that the sentence is “cumulative”. Since the warrant is ambiguous on the matter, clarification might have been sought on the make up of the sentence, but no request for information appears to have been made by the respondent pursuant to s.20 of the Act, although I note that this does not appear to have been a point raised in the Notice of Objection. Having regard to the finding in the judgment that all three offences were ones to which the Act of 2003 applied, the learned High Court judge clearly did not himself find it necessary to deal with the sentence conundrum which arises from the findings I have now made.
Having regard to the fact that there is no information upon which the court can be satisfied that the threshold set out in s.38(1)(a)(ii) is met, I am satisfied that the appellant cannot be surrendered pursuant to this warrant.
In the foregoing circumstances, I would allow the appeal and set aside the High Court order for the surrender of the appellant.
