THE HIGH COURT
2003 7 EXT X
2003 8 EXT.

IN THE MATTER OF CHARLES ASHLEY- NICHOLSON

AND RUTH ELLEN ASHLEY-NICHOLSON

AND IN THE MATTER OF THE EXTRADITION ACTS 1965-2001

JUDGMENT of Mr Justice Michael Peart delivered the 27th May 2003

The persons named in the title hereof are before the court on foot of warrants dated 10th December 2002, received from the British Police Authorities, and which, having been endorsed on the 11th March 2003 in the usual way under the procedures contained in section 43 of the Extradition Act, 1965 ("the Act"), as amended, were duly executed on the 12th March 2003 by An Garda Siochana in respect of both persons, who were at the time resident in this jurisdiction.

Both persons were tried in England in respect of offences under the UK Value Added Tax Act 1994, but during their said trial, they left the English jurisdiction and came to Ireland. In their absence, therefore, the trials concluded and they were convicted and sentenced in their absence.

Having been arrested here, both persons were brought before this court pursuant to the provisions of section 45(2) of the Act. Both were remanded from time to time, but on the 1st April 2003, Counsel for each of these persons sought leave to issue a Notice of Motion returnable for the hearing. That leave was granted. The Notices of Motion in each matter seek the following reliefs:

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“An order declaring that there are not in existence proceedings against the defendant, or if, which is denied, there are such proceedings, an order dismissing the proceedings by reason of the plaintiffs failure to serve an originating summons herein, and/or an order discharging the defendant from custody.”

In the said Notices of Motion the Attorney General is named as plaintiff, and each of the above-named persons is named as defendant respectively. In view of the nature of the relief sought, I prefer to refer to these persons as “the applicants” in respect of the relief sought in the Notice of Motion.

The Notices of Motion came on for hearing before this court on the 8th day of May 2003.

The issue to be decided is a net point really as to whether the procedure provided by the Act for the bringing before this court under 45(1) of the Act, of persons arrested under section 45 thereof, so that the court can carry out its prescribed function under section 47 thereof, namely the making of an order for the delivery of the arrested person to the custody of a member of the police force of the country in which the warrant issued, for conveyance to that country and remand him until so delivered, constitutes “civil proceedings” within the meaning of that term in Order 1, Rule 1 of the Rules of the Superior Courts ("the Rules"), because if so, it is contended that an originating summons must be issued before the matter is properly before the court.

Order 1, rule 1 states:

"Save as otherwise provided in these Rules, civil proceedings in the High Court shall be instituted by a summons of the Court to be called an originating summons.”

It is a fact that nowhere in the Rules is the term “proceedings” defined. But, interestingly, Mr O'Floinn in his annotated Rules of the Superior Courts in a footnote on page 1 thereof states in respect of the term "originating summons":

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"Save as appears in this Order, this term is not defined in the RSC other than in its inclusion in the definition of the term “pleadings” in Order 125 rule 1.

In essence, an originating summons is no more than a written command issued to a defendant for the purpose of getting him to attend at Court on a specified day at a specified time: DPP v. Clein (1983) ILRM 76.”

The case of DPP v. Clein referred to was called in aid by Counsel for the applicants in the present case, but in the context of a submission that a summons must specify the subject matter of a plaintiffs claim. It is only fair to note that as regards the footnote quoted above, it is clear that the case concerns a District Court Summons, and not a summons issued in the High Court, nevertheless the author's comment as to the purpose of an originating summons, highlights the essential purpose of an originating summons in High Court civil proceedings, which is to commence a process of litigation, sometimes referred to as a "lis". The Rules prescribe a number of methods of commencement; for example, plenary summons, summary summons, special summons, petition, and originating Notice of Motion, and to a large extent specify the types of case which must be commenced by the different category of originating document. There is no reference to any document required for the purpose of obtaining an order under section 47 of the Act. The fact is that such orders were until recently sought in the District Court. It was only upon the coming into force of the Extradition (European Union Conventions) Act, 2002 that the jurisdiction formerly enjoyed by a judge of the District Court in these matters was transferred to a judge of the High Court under section 20 (1) thereof.

Following the coming into force of that Act, a Practice Direction was introduced by the President of the High Court, to which I will refer later. This document says nothing about any requirement to issue an originating summons, and merely, as far as relevance to this case is concerned, specifies certain forms appended thereto which are to be used in relation to remand orders, committal orders and so forth.

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Before dealing with Counsel's submissions, I should set out the terms of Sections 45 and 47 of the Act,. which state as follows:

“45. - A warrant endorsed under section 43 may be executed by any member of An Garda Siochana in any part of the State.

(2)	The person named or described in the warrant shall on arrest be brought before a justice of the District Court for the district in which he was arrested, if a justice is immediately available.

(3)	If not, he shall be brought as soon as may be before a peace commissioner in that district.”

“47. - (1) Where a person named or described in a warrant is before the District Court in pursuance of this part that Court shall, subject to the provisions of this Part, make an order for his delivery at some convenient point of departure from the State into the -custody of a member of a police force of the place in which the warrant has been issued, for conveyance to that-place, and remand him until so delivered.

(2)	An order shall not be made under subsection (1) if it appears to the Court that the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months.

(3)	In any case where the court does not make an order under subsection (1) the court shall order the person named or described in the warrant to be discharged.

(4)	The Court shall have the same powers of adjournment and remand as if the person concerned were brought before the Court charged with an indictable offence.

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(5)	No appeal shall lie to the Circuit Court against an order of the Court under this section.” (my emphasis)

It is evident from the terms of the section that no mechanism is required for the person to be brought before the Court. The act of arrest enables the person to be brought before the court under section 45 of the Act, and section 47 mandates the court to make the required order subject to the restriction contained in subsection (2). There is a similarity in that regard to the procedure when a person is arrested on foot of a Bench Warrant.

Counsel for the applicants submits that the matter is now dealt with by the High Court since the 2001 Act, the Rules apply to the procedures to be adopted, and that Order l, rule 1 requires that the matter of making an order under section 47 ought to have been brought by way of an originating summons, as of course happens in relation to applications to the High Court under section 50 of the Act, under which a person may be arrested under section 45 may apply to the court for a direction from the court that he be released, but it is to be noted that section 50(3) states that a direction of the court under that section “may be given either on application made by or on behalf of the person concerned or on the question being referred to the court by the Minister.” (my emphasis). In other words, the subsection requires an application to be made. In those circumstances, the Rules provide that such application shall be by way of Special Summons.

Counsel refers to the Practice Direction introduced on the 20th March 2002 “pending the introduction of Rules of Court relating to proceedings under the Extradition Acts 1965-2001 “. Paragraphs 6 - 10 of the Practice Direction relate to applications under Part III of the Act. Those paragraphs relate to forms which are to be used in relation to warrants, Committal Orders, consent to rendition and so forth. Paragraph 11 states that proceedings under the Extradition Acts 1965-2001 shall be heard on affidavit, but that in urgent cases or if the interests of justice so require, oral evidence may be received. It is clear from the Practice Direction that it makes no reference to any procedure as such in relation to the making of orders under section 47.

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Counsel submits that simply because the Practice Direction does not make any reference to a requirement for an originating summons does not mean that one may not be required in view of the provisions of-Order 1, rule 1. He points to the fact the Rules cannot be superceded by a mere Practice Direction, the former being a Statutory Instrument. Counsel has said that in the present case, a Plenary Summons would be required, since a Special Summons is not specified for this application in the Rules. I do not think that is correct in view of paragraph 11 of the Practice Direction stating that proceedings under the Extradition Acts shall be heard on affidavit. It seems to me that in cases which are to be dealt with on affidavit, a Special Summons is the appropriate procedure, and of course it would be unusual, though not unknown, for pleadings to be directed in such cases.

However, that particular matter does not need to be determined by me unless I were to find that the bringing of the person before the court as required by section 45 amounted to proceedings for the purpose of the Rules.

Counsel submits that the Rules clearly apply, and he relies upon the decision of the Supreme Court in McK v. F (2002) 1 IR 242, in which the Court (per Geoghegan J.) decided that in the context of the Proceeds of Crime Act, 1996 the reference to an interlocutory order in section 3 of that Act could not be construed as an interlocutory injunction order as normally understood, since in the latter case there was no final determination of issues, whereas under section 3 of that Act, there was a final determination of issues even though the Act described the order as an "interlocutory order".

The Court held that where proceedings were commenced by plenary summons, and an Appearance was entered which called upon the plaintiff to deliver a Statement of Claim, the plaintiff must do so before seeking an order under section 3 of that Act, being an order of a final nature. The court also stated that in the absence of any indication to the contrary in the Act, the Rules of the Superior Courts must apply. It was accepted by Counsel for the plaintiff in McK v. F that the proceedings under section 3 amounted to "proceedings". That being so, the court was certain that the Rules must apply. It is

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obvious that the matters for determination under the Proceeds of Crime Act, 1996 are completely different to matters arising under section 47 of the Extradition Act, 1965. As Fennelly J. makes clear in his judgment in McKay v. F, the Act gives the court power to grant an interim order, an interlocutory order, and also a disposal order in respect of a defendant's assets, and that the Act also provides that hearsay evidence may be given which would be oral evidence, and that the standard of proof required is that required in civil proceedings. All these matters point to plenary summons procedure being appropriate, so that pleadings can be delivered in the usual way, including request for particulars and so forth.

In passing I should say that I do not think that the decision in McK v. F is of any assistance in this case, since in that case it was accepted by the plaintiff that the application for an order under section 3 amounted to proceedings. Thereafter it was obvious that the Rules must apply thereto. Whereas in the present case, that concession is not made, and it is the matter essentially that I have to consider. The facts in the McK case would have made it impossible for any court to conclude the matter in any other way, even in the absence of the concession. There would be-no doubt in the present case that were the matters arising under section 47 to amount to proceedings in the same sense, then the Rules would have to apply.

Counsel submits that it would be more convenient for a summons to be issued in this case, and that there need no be any resulting delay as a result of having to deliver pleadings. He states that the purpose of a pleading is to set out the material facts it is intended to prove, as well as matters of law. He points to the fact that a relevant consideration for the court under section 47 of the Act is whether the offence referred to in the warrant corresponds to any offence in this jurisdiction. He says that the person arrested is entitled to seek particulars of what facts are said to constitute the offence alleged, and that at present a letter is simply written by the solicitor acting for the arrested person seeking this information and that there is no legal obligation on the other side to answer that letter, and that the matter would be different if the information was sought in a Notice for Particulars in Plenary proceedings. He also pointed out that it may be

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necessary to challenge the constitutionality of certain provisions of the Act, and he was frustrated under the existing procedures from pleading such unconstitutionality in a Defence. I should say that under the present procedures, any unconstitutionality claim can be pursued by the issuing of a Plenary Summons. There is no impediment to a person in the position of the applicants from so doing. He cannot claim any disadvantage in that situation.

Finally Counsel referred to the possibility that it might be contended that Order 124 of the Rules, in any event, cured any defect that may exist in the manner in which questions arising under section 47 of the Act came before the Court. He submitted that Order 124 is appropriate for the purpose of allowing matters of a minor nature to be overlooked by the court so as not to have proceedings declared void, but that matters of substance, such as whether or not a proceeding should be commenced by summons could not be cured by that Rule. I agree with that submission. For example, it would not be possible to avail of that rule to allow a personal injury action, commenced in error by special summons rather than plenary summons, to be allowed to be heard under special summons procedures. Clearly it was never intended to be used to cure a matter of such substance.

In response to these submissions, Counsel for the Attorney General emphasized the nature of extradition, and that the process under section 47 is triggered in this jurisdiction by the receipt of a warrant from the British authorities. He submitted that under the Act it was clear that the order must be made once the dual criminality issue is satisfied in respect of either an accused person or a convicted person. The warrant is backed here and then simply executed by the arrest of the person who must then be brought before the court so that the court can then make the order for that person's committal pending his return to the requesting jurisdiction. Counsel pointed to the fact that this procedure is laid down by statute, and that the Act does not talk in terms of any application having to be made, but simply states what is to happen. The Act is mandatory in that regard. He points to the fact that nowhere in the Act is there a reference to any summons or other originating document having to be issued, and that all that is required is the receipt of a warrant from the requesting State.

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Counsel also referred to the Practice Direction to which reference has already been made, and to the fact that it is states that it shall apply "pending the introduction of Rules of Court", and to the fact that it states that Order 98 of the Rules shall continue to apply in relation to applications under section 50 of the Act. He says that it is therefore clear that the intention is that the Rules are not required to be used in relation to any other matter, otherwise the Practice Direction would have said so. As has already been stated, the Practice Direction deals in the main with the type of forms which are to be used in connection with certain matters which I have already mentioned.

Counsel also submitted that it is clear that procedures in relation to extradition must be dealt with simply and speedily. The Preamble to the 2001 Act itself refers to the fact that it is "An Act to give effect to the Convention on simplified extradition procedures between the Member States of the European Union......" and that to now require that a Plenary Summons or any originating document would be required in order to enable pleadings to be delivered would be in contradiction to that. He also submitted that in extradition proceedings the Court is not making any finding of guilt or innocence. The Court rather is carrying out a procedure clearly set forth and mandated by the Act. It is simply a matter of rendering a -person amenable to the Court of another State either for the purpose of facing trial for the stated offence, or to serve a sentence in the case of an existing conviction.

Counsel also referred to the fact that when these matters were dealt with in the District Court prior to the commencement of the 2001 Act, it was never contended that some sort of originating document had to be issued so as to bring the matter before the District Court.

Conclusions:

I am satisfied that the making of an order under section 47 of the Act does not constitute a proceeding of the kind to which the Rules of the Superior Courts refer. I am not satisfied that the case of McK v. F is of any assistance to the applicants' submissions to

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the contrary. The nature of the, reliefs sought under section 3 of the Proceeds of Crime Act, 1996 is entirely different to matters arising under the Extradition Acts. Under the Proceeds of Crime Act, 1996, issues relating to a person's property and assets are being finally determined, and it is because of this fact that the Supreme Court has decided that a Statement of Claim, when called for by the defendant in his Appearance, must be delivered. That decision has no wider meaning, and certainly has no relevance to the Extradition Acts.

The arrangements between States under the Extradition Acts is in the nature of an enforcement procedure, and results from a desire of nations that each should co-operate with the other in relation to the return of persons in respect of whom a warrant has issued. The procedure is laid down in the Act in order to effect the person's return. The Act is specific as to the manner in which this is to be achieved. The warrant entitles a person named therein to be arrested and requires that he/she be brought before the Court, in the case the Court being the High Court. That Court is then required only to ensure that the arrest has been properly executed and to be satisfied that the offence specified in the warrant corresponds with an offence in this jurisdiction. These are simple matters not requiring pleadings. The Act in fact does not say that an application must be made in relation to section 47. That is in contradistinction to what is stated in relation to section 50 applications. In section 50(3) of the Act it is stated that "A direction of the Court under this section may be given either on application made by or on behalf of the person concerned or on the question being referred to the Court by the Minister". It is because of the reference to an application being required that the Rules provide in Order 98, rule 1 that such an application shall be made by Special Summons.

There is a certain similarity between an arrest warrant for extradition purposes, and a Bench Warrant issued by a Court in this jurisdiction. No originating document would be required to bring a person before the court on foot of such a Bench Warrant and to have the person dealt with thereunder.

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I am satisfied that the applicants' submissions must fail and I therefore refuse the relief sought in the Notices of Motion issued-herein.

It follows from this decision that any application for Habeas Corpus which might be or have been made by the applicants under Article 40 of the Constitution would be refused by me for the same reasons as outlined above.