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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.G. v. Borek [2003] IEHC 118 (11 December 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/118.html Cite as: [2003] IEHC 118

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A.G. v. Borek [2003] IEHC 118 (11 December 2003)

 
THE HIGH COURT

Record Number: 2003 No. 23 EXT.

Between:

The Attorney General

Applicant

And
Stephen Borek

Respondent

Judgment of Mr Justice Michael Peart delivered the 11^th December 2003:

This is an application pursuant to section 47 of the Extradition Act 1965, as amended ("the Act") for an order for the delivery of the respondent into the custody of a member of the City of London police so that he can face charges in that jurisdiction which are the subject of 3 warrants, each dated the 17th day of October 2003 and which I will refer to respectively as "Warrant A", "Warrant B" and "Warrant C".

Warrant A charges that the respondent on the 18th day of June 1999 unlawfully caused grievous bodily harm to Geoffrey Kevin Hutchby with intent to do him grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861.

Warrant B charges that the respondent on the 18th day of June 1999 at London Wall used or threatened unlawful violence when present together with others being three or more persons in total who used or threatened unlawful violence and the conduct of them (taken together) was such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, contrary to Section 2 (1) of the Public Order Act 1986.

Warrant C charges that the respondent on the 18th the day of June 1999 at Upper Thames Street used or threatened unlawful violence when present together with others being three or more persons in total used or threatened unlawful violence and the conduct of them (taken together) was such as would cause a person of reasonable firmness present at the scene to fear for his personal safety, contrary to Section 2 (1) of the Public Order Act 1986.

The respondent was arrested on 20th October 2003 at Dublin Airport by Sergeant Martin O'Neill of An Garda Siochana on foot of these three warrants. In an affidavit sworn on the 30th day of October 2003, Sergeant O'Neill deposes to the fact that on that occasion he introduced himself to the respondent and identified himself to him and informed him of the purpose of the warrants and explained to him the nature of the charges alleged therein. He also deposes to the fact that the man he met on that occasion confirmed that he was the respondent named in these proceedings and that he showed him the original warrants, affidavits and certificates which he had in his possession and pointed out where an Assistant Commissioner had endorsed the warrants for execution. He also deposes that having arrested him on foot of the 3 warrants, he cautioned the respondent in the usual way to which no reply was made, and then asked the respondent whether he knew what all this was about and that the respondent replied "I was expecting this". Sergeant O'Neill then deposes that he served the respondent with a copy of the warrants, affidavits and certificates and conveyed him to the Airport Garda Station where he was processed as an arrested person and was eventually brought, later on 20th October 2003, before the High Court where evidence of arrest was given.

Mr Patrick McCarthy SC, on behalf of the applicant has referred to the affidavit of Raymond John Janes, a detective constable in the City of London police, in respect of each warrant, each affidavit being sworn on the 17th day of October 2003 in which he deposes to being present and witnessing the signing of each warrant by the judge of the Crown Court on the 17th day of October 2003. Mr McCarthy also refers in respect of each warrant to a certificate which states in respect of each charge 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. These certificates certify that the minimum gravity requirement under the Extradition Act 1965 is satisfied. No issue is taken in this regard on behalf of the respondent.

In relation to correspondence, Mr McCarthy has submitted that the charge of causing grievous bodily harm which is the subject matter of Warrant A corresponds with section 4 of the Non-Fatal Offences Act 1997 which provides that: -

" (1) A person who intentionally or recklessly causes harm to another shall be guilty of an offence.

(2) A person guilty of an offence under this section shall be liable on conviction on indictment to a fine or to imprisonment for life or both."

Mr McCarthy's submits that in relation to the charges which are the subject of Warrants B and C, each corresponds with an offence under section 15(1) of the Criminal Justice (Public Order) Act, 1994. That section provides as follows: -

"15. - (1) Where -

(a) three or more persons who are present together at any place (whether that place is a public place or a private place or both) use or threaten to use unlawful violence, and

(b) the conduct of those persons, taken together, is such as would cause a person of reasonable firmness present at that place to fear for his or another person's safety, then, each of the persons using or threatening to use unlawful violence shall be guilty of the offence of violent disorder."

Mr McCarthy has drawn attention to the almost identical wording of this section with the wording of the charge against the respondent in warrants B and C referred to already.

It is submitted on behalf of the applicant that all the requirements which need to be satisfied by the applicant for purposes of obtaining an order under section 47 of the Act have been satisfied in this application.

Mr Patrick Gageby SC, on behalf of the respondent has indicated to this court that while he is not making any concession in relation to the identification of the respondent by Sergeant O'Neil, he is raising no issue in relation to same.

He has however raised a somewhat technical issue in relation to the receivability of the warrants under sections 54 and 55 of the Act. He submits that the same problem presents itself in relation to all three warrants and has referred to the fact that the applicant has argued that these warrants comply with the provisions of the Act, namely sections 54 and 55. I should first all set out the relevant provisions of those sections:-

" 54. - (1) Where the Commissioner receives a document appearing to be a warrant issued by a judicial authority in a place in relation to which this Part applies, together with an affidavit verifying the signature on the warrant and appearing to be sworn before a person duly authorised to take affidavits by the law of that place, the Commissioner may, without further evidence, accept the document as being a such warrant and as having been duly signed and issued by a judicial of oratory in accordance with the law of that place and as evidence that the offence for which the warrant is issued is an offence under the law of that place and that the affidavit has been duly sworn before a person so authorised as aforesaid."

"55. - (1) in any proceedings, unless the Court sees good reason to the contrary -

(a) a document appearing to be a warrant issued by a judicial authority in a place in relation to which this Part applies for the arrest of a person for an offence may, if the signature on a warrant is verified as indicated in subsection (1) of section 54, be admitted in evidence as such warrant and as having been duly signed and issued by a judicial authority in accordance with the law of that place;"

The point which Mr Gageby is making is a very technical point, and, on his own admission, somewhat semantic. However, he submits that if he is correct, then the warrants are simply not receivable at all in this jurisdiction and that the matter cannot be saved by the provisions of section 55 (1) of the Act.

In relation to this point, Mr Gageby refers to the affidavit by Raymond John Janes in respect of each warrant. I will refer in relation to this point to Warrant A for the sake of brevity, since the same point arises in relation to each warrant. The affidavit in relation to Warrant A states at paragraph 1: -

"I was present and witnessed the signing by Geoffrey Rivlin, judge of the Crown Court, of the warrant………………….. now produced and shown to me and marked with the word and letter "Warrant A" upon which for the purpose of identification I have signed my name before making this affidavit"

Mr Gageby highlights the fact that this paragraph refers to the marking of the warrant "before making this affidavit". He has then referred the court to Warrant A itself at the foot of which it states as follows: -

"This is the warrant marked "Warrant A" referred to in the affidavit of Raymond John Janes sworn on the 17th day of October 2003."

Mr Gageby makes the point that since this sentence refers to an affidavit already sworn, it is clear that Mr Janes did not in fact mark the warrant in the way he states "before making this affidavit". I agree with Mr Gageby that this is a very technical point, but nevertheless, if I were satisfied that it was a sufficiently serious technical point to invalidate the extradition process, I would not rule against him simply because it appears to be somewhat technical and a semantic as he has stated.

However, courts must operate in the real world. There may well be some slight flaw in the wording contained at the foot of warrant for the purpose of marking it as an exhibit in the affidavit. But that flaw is of no possible consequence, and can in no way prejudice the respondent. Extradition orders are, as stated by Chief Justice Keane in Haywood v. The Member in Charge Bridewell Garda Station, unreported, 15th February, 2002, "intended to be a swift and immediate process" and as the Chief Justice has also stated therein "the machinery is intended to be implemented in an expeditious and immediate fashion". To find in favour of Mr Gageby's submission in this regard, would be to fly in the face of that spirit and intention of the extradition legislation.

Mr Gageby also makes a submission in relation to the correspondence of the offences charged in Warrants B and C which I will describe for convenience as the public order offences. He submits that while these offences as charged in the warrants appear at first glance to correspond with the offence of violent disorder created by section 15 (1) of the Criminal Justice (Public Order) Act, 1994, there is however in his opinion a subtle distinction between the offence in England and the offence in this jurisdiction, by reference to what is contained in section 15 (3) of that fact. That subsection provides as follows: -

"(3) a person shall not be convicted of the offence of violent disorder unless the person intends to use or threaten to use violence or is aware that his conduct may be violent or threaten violence."

Accordingly, it is submitted on behalf of the respondent that a necessary proof for a successful conviction in this jurisdiction is that the person charged with the offence intended to use or threaten to use violence or is aware that his conduct may be violent or threaten violence, whereas in the offences charged as a set forth in Warrant B and Warrant C do not contain any assertion that the respondent intended to use or threatened to use violence or was aware that the conduct might be violent or threatened violence. It is submitted that for the purposes of the offence in this jurisdiction, there is a legal requirement under sub-section 3 of an additional ingredient. It is submitted therefore that correspondence between the offences is not made out.

In response to this submission, Mr McCarthy submits that the offence in this jurisdiction created by section 15 (1) of the Criminal Justice (Public Order) Act, 1994 is the same offence which forms the subject matter of Warrants B and C, and that all the ingredients of the Irish offence as are created by the section are contained in Warrants B and C, and that what is contained in section 15(3) is simply a matter of proof in relation to the evidence and that it does not affect the ingredients of the offence itself.

I am satisfied that the offence itself in this the jurisdiction is created by section 15 (1) of the Criminal Justice (Public Order) Act, 1994, and that this offence corresponds with the the offences charged in Warrants B and C. Given the requirement that in all criminal offences both in this that jurisdiction and in England, the prosecution must establish mens rea on the part of the accused in relation to the act involved in the offence, sub- section 3 of the Criminal Justice (Public Order) Act, 1994 is to some extent superfluous, but it is there none the less. In my view it cannot be the case that in England a person could be convicted without criminal intent being established, even if the necessity for such intention is not set forth in the Public Order Act 1986 itself.

I am therefore satisfied that correspondence has been made out in relation to those charges, as well as in relation to the charge which is the subject of Warrant A.

I therefore make an order under section 47 of the Extradition Act, 1965, as amended, for the delivery of the respondent at some convenient point of departure from the State into the custody of a member of the police force of the place in which the warrants have been issued, namely the City of London Police, for conveyance to that place and I remand him until so delivered.