THE  HIGH  COURT
Record Number: 2003 No. 20 Ext
BETWEEN:
THE ATTORNEY GENERAL
APPLICANT
AND

ROBERT LLOYD HEYWOOD
RESPONDENT
AND

THE  HIGH  COURT
Record Number: 2003 No. 537Sp.
BETWEEN:
ROBERT LLOYD HEYWOOD
APPLICANT
AND

WALTER RICE
RESPONDENT

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

Since Mr Heywood is the respondent in the first application by the Attorney General, I intend for the sake of convenience to so describe him throughout this judgment, even though in the second application under Section 50 of the 1965 Act, he is correctly the Applicant.

The first above mentioned proceedings relate to an application by the Attorney General (“the applicant”) for an order pursuant to the provisions of Section 47 of the Extradition Act, 1965, as amended (“the 1965 Act”) for an order for the return of Mr Heywood (“the respondent”) to the United Kingdom on foot of 3 warrants, each dated 28th November 2002. Warrant “A” relates to a charge of conspiring with others to supply a controlled drug, namely diamorphine (heroine). Warrants B and C relate to a charge of unlawfully causing grievous bodily harm.

The second above mentioned proceedings concern an application by the respondent, Mr Heywood for an order pursuant to the provisions of Section 50 of the 1965 Act, as amended, directing his release on the grounds that, given the history of proceedings against the respondent since 1999, and given the history of events since the date of the alleged offences (1995/1996), and the delay in efforts to extradite the respondent, both on the part of the U.K authorities, and on the part of the Irish authorities, it would be invidious, unjust and oppressive to now return the respondent to the U.K. authorities, to face his trial on these charges.

A decision on the Section 50 application becomes necessary only in the event that I am satisfied that the applicant has satisfied all the necessary requirements for the purpose of obtaining the order which he seeks pursuant to Section 47 of the 1965 Act, so I propose to deal with that application first.

Application under Section 47 of the 1965 Act as amended:
The respondent was first brought before the court on foot of these warrants, for the purposes of Section 45 (2) of the 1965 Act on the 1st September 2003. On that occasion the arresting officer, Sgt. Martin O’Neill gave oral evidence of arrest, identification of the respondent and other matters such as showing and explaining the documents and the purpose of arrest to the respondent, and that evidence is set forth in an affidavit subsequently sworn by Sgt. O’Neill on the 17th September 2003, and which is filed in the Central Office on the 19th September 2003. Since no issue arises in relation to Sgt. O’Neill’s evidence as contained in his affidavit, I need not detail it any further, except to note that the respondent was arrested by Sgt. O’Neill on the 1st September 2003 at his address in Dundalk, Co. Louth. 

In relation to correspondence, Mr Shane Murphy SC for the applicant states that in relation to Warrant A which relates to conspiracy to supply a controlled drug, namely diamorphine (heroine), the equivalent offence in this jurisdiction is conspiracy to supply diamorphine contrary to Common Law. The substantive offence, he submits, is that provided for in Section 15(1) of the Misuse of Drugs Act, 1977, and that the offence of conspiracy arises when it is for the purposes of a criminal act, namely, in this case, the supply of a controlled drug. Section 15(1) provides as follows:

“15. – (1) Any person who has in his possession, whether lawfully or not, a controlled drug for the purpose of selling or otherwise supplying it to another in contravention of regulations under section 5 of this Act, shall be guilty of an offence.” 

Counsel for the respondent submits in relation to the conspiracy to supply charge, that it is fatal to this application that the applicant has produced no proof in this Court that diamorphine is a controlled drug for the purpose of the regulations under the Misuse of Drugs Act, 1977. However, it is clear, as has been pointed out by Mr Murphy on behalf of the applicant, that the classification of diamorphine as a controlled drug is contained in the Schedule attached to the Act itself, and Section 2 of the Act defines a controlled drug by reference, inter alia, to the drugs set forth in the Schedule.  So I cannot accept that submission.

However, it is clear from the wording of the Act itself,  that the offence under Section 15(1) is an offence of possession for the purpose of supply, rather than an offence of supply simpliciter, which seems to be the substantive offence in respect of which the conspiracy offence charged in Warrant A is laid. That cannot therefore be the corresponding substantive offence in this jurisdiction in respect of which the respondent is charged with conspiring to commit, as laid in Warrant A. It seems to me that the offence of “supply” simpliciter, must be gleaned from Section 5 of the 1977 Act, which empowers the Minister to make regulations for the purpose, inter alia, of prohibiting, or permitting by licence, the supply of a controlled drug. It is an offence to do anything which is in contravention of any such regulations, and therefore to supply. It cannot be assumed that the offence of supplying is the same as the offence of possession for the purpose of supplying. They are quite different if one analyses the two offences. In order that the offence of supply as stated in Warrant A be shown to correspond with an offence in this jurisdiction, it is necessary for the applicant to satisfy this court that on the day on which the Warrant was produced to the Assistant Commissioner for endorsement, there were regulations in place for the purpose of making it an offence here for a person to supply a controlled drug. No attempt has been made to do this, and the court therefore cannot be so satisfied, and cannot therefore make the order sought in respect of Warrant A.

Warrants B and C can be dealt together as far as correspondence is concerned. Both relate to a charge of unlawfully causing grievous bodily harm with intent to do the person grievous bodily harm, contrary to Section 18 of the Offences Against The Person Act, 1861. Mr Murphy submits that the corresponding offence in this jurisdiction is now found in Section 4 of the Non-Fatal Offences Against the Person Act, 1997 (hereinafter referred to as “the 1997 Act”).

In respect of each of these Warrants, A,B and C, Mr Murphy referred to the affidavit, in respect of each warrant, of an attesting witness who witnessed the signature of each warrant by Glyn Parry, described as “a Justice for the West Mercia Commission Area assigned to the Petty Sessions Area of Telford.” Mr Murphy also referred in respect of each Warrant to a Certificate from a Clerk of that Court which certifies that each offence satisfies the minimum gravity requirement for the purposes of an extradition order. 

Counsel for the respondent has drawn the Court’s attention to what appears to be an error on the face of two of the affidavits to which I have just referred. The error suggested is that in the body of the affidavits relating to Warrant B and Warrant C, the said Glyn Parry is referred to as “a Justice for the Shropshire Commission Area assigned to the Petty Sessions Area of Telford”, whereas the said Justice is described in each warrant as being a Justice of the West Mercia Commission Area assigned to the Petty Sessions Area of Telford. However I am of the opinion that the important factor is that Glyn Parry is a Justice assigned to the area of Telford, and the fact that a typographical error has caused some confusion as to whether he/she is a Justice for the West Mercia Commission Area or to the Shropshire Commission Area, is of little moment. He/she is assigned to the Petty Sessions Area of Telford, and that is the important matter to be established. It is from that Court that the Warrants have issued. So I would not hold in favour of the respondent’s submission on that point of objection. 

I, of course, should also refer to the fact that under the provisions of Section 55 of the 1965 Act, as amended, this Court may, unless it sees good reason to the contrary, admit into evidence a warrant appearing to be a warrant issued by a judicial authority for the arrest of a person, if the signature on the warrant is verified as indicated in subsection (1) of section 54 of the Act. I am so satisfied in this regard. I see no good reason to the contrary.

In relation to the charge of causing grievous bodily harm as contained in Warrants B and C, Counsel for the respondent has referred to the provisions of Section 42 (2), as inserted into the 1965 Act by Section 26 of the Extradition (European Union Conventions) Act, 2001, and which provides as follows:

“42 (2). – For the purposes of this Part an offence under the law of a place to which this part applies, corresponds to an offence under the law of the State, where the act constituting the offence under the law of that place would, if done in the State, constitute an offence under the law of the State punishable –
(a)	on indictment, or
(b)	on summary conviction by imprisonment for a maximum term of not less than six months or by a more severe penalty.

(3)	For the purposes of this Part, an offence specified in a warrant corresponds with an offence under the law of the State if –
(a)	the act constituting the offence so specified would, if done in the State on the day the warrant is produced under section 43(1)(b), constitute an offence under the law of the State, or
(b)	in the case of an offence so specified consisting of one or more acts including any act committed in the State, such act constituted an offence under the law of the State on the day on which it was committed or alleged to have been committed.”

Mr Murphy, on behalf of the applicant has submitted that there is a sufficient description of the act constituting grievous bodily harm set out in the warrant in order that this Court be satisfied that the same act, if committed in this jurisdiction on the day the warrant was produced for endorsement, would constitute an offence here. The charge in Warrant B is stated to be as follows:

“Alleged Offence: On a day between the 1st day of January 1996 and the 1st day of May 1996 at Telford, Shropshire, England unlawfully caused grievous bodily harm to Lee Price with intent to do him grievous bodily harm – Contrary to Section 18 of the Offences Against the Person Act, 1861”

Warrant C is the same except that the dates and the alleged injured party are different.

Under Section 4(1) of the Non-Fatal Offences Against the Person Act, 1997 it is provided that “a person who intentionally or recklessly causes harm to another shall be guilty of an offence.”

Section 1 defines “harm” as “harm to body or mind and includes pain and unconsciousness”. Section 4 adds the word “serious” as a pre-requisite of the charge under that section. An assault causing “harm” as opposed to “serious harm” is an offence under Section 3 of the Act.

Under the provisions of Section 42 (2) of the 1965 (as inserted) I have to be satisfied that “the act which constitutes the offence” in the Warrants B and C would if done here be an offence here. The act referred to in the warrants is simply a general one, namely that of causing grievous bodily harm with intent, but there is no detail given of what act was done or performed by the respondent – i.e. did he stab, beat over the head, punch, spit at, trip and cause to fall, and so on. The Court is completely in the dark as to what the respondent is alleged to have done on the dates in question.

 The question which arises is whether this Court can, given that the concept of “harm” is defined in our Act, and that it must be “serious harm” for the purposes of an offence under Section 4, be satisfied that the act constituting the offence in England would be such an offence in this country, if the Warrant contains no detail of the alleged offence, or the Court is given no evidence by affidavit or otherwise, on this section 47 application, of the nature of the act alleged to have been done by the respondent to cause the grievous bodily harm. Bearing in mind, as I have said, that Section 3(1) of the 1997 Act creates the offence of assault causing “harm”, as opposed to “serious harm”. So, the severity of the harm is a consideration as to whether the charge is one under section 3 or under Section 4. The applicant in this case has said that the offence in the Warrants B and C correspond to offences under Section 4. Can it be assumed that the word “grievous” which is used in the Warrant corresponds precisely with the phrase “serious harm” used in Section 4 of the 1997 Act, without further elaboration of the ingredients of the alleged “grievous harm”?

Interestingly in Criminal Law by Charlton, McDermott and Bolger (1999) Butterworths, at paragraph 6.29 thereof the authors describe the charge in this jurisdiction as:
“You, A.B. on the (date) at (place) in the (District) intentionally or recklessly caused serious harm to CD by stabbing him in the neck.” 

The authors provide another sample charge as follows:
“ You, AB, on the (date) at (place) in the (District) caused serious harm to CD, when being a manager of the CB Supermarket you intentionally failed to withdraw contaminated meat from sale whereby CD became infected with the (specify) micro organism.”

Section 26 of the 2001 Act which inserted section 42 (2) into the 1965 Act, and which I have quoted earlier, is intended to give some statutory guidance to the Court in its effort to determine whether correspondence is made out by the applicant for an order under Section 47. The enactment of Section 26 was preceded by a significant body of case law which reached certain conclusions as to how the Court should approach its task of determining the presence or absence of correspondence, and for the purpose of the present case, in spite of the seemingly clear wording of Section 42(2) as inserted in the 1965 Act, it is helpful to revisit some of those decisions in order to determine whether there is sufficient particularity contained in the Warrants B and C to establish correspondence. These cases are State (Furlong) v. Kelly (1970) I.R. 132, Wyatt v. McLoughlin (1974) I.R. 379, Wilson v. Sheehan (1979) I.R. 423, Hanlon v. Fleming (1981) I.R. 489. There is a very careful and thorough analysis of these decisions in a recent decision of the Supreme Court in The Attorney General v. Scott Dyer, Supreme Court, 16th January 2004, and I do not propose therefore to examine again these decisions, but I will quote a couple of passages again in order to illustrate the consistent line taken in these cases, and which must inform this court when considering the effect of Section 42(2) as inserted in the 1965 Act. 

In The State (Furlong) v. Kelly, Walsh J stated :
“The function of the District Justice is to examine the documents set before him and to see whether there is sufficient statement of the particulars of the ingredients of the offence alleged to enable him to bring to bear on them his knowledge of the law of this State so that he may determine whether the acts alleged against the prisoner would constitute an offence under the laws of this State. It appears to me to be necessary that, before a District Justice can enter upon his determination of this matter, either the warrant itself must contain sufficient particulars of a factual nature setting out the ingredients of the offence alleged, or it should be accompanied by an affidavit by the prosecuting authority, setting out the particulars of the facts complained of – somewhat as the particulars of offences appear in a count on an indictment under our law.”

In Wyatt v. McLoughlin, Walsh J. again stated at page 395:
“The District Court here has to be satisfied that an offence laid in a warrant sent here and endorsed for execution is so stated as to be recognizable as corresponding with an offence under our law. It must, therefore, contain such essential factual material as may be necessary to recognise whether or not the acts complained of are ones which, if committed in this country, would amount to a criminal offence.”

In Wilson v. Sheehan, Hinchey J. stated at page 428:
“What was being stressed in that passage [from Wyatt’s case] was that the required correspondence of offences is not shown by the mere proof that the offence specified in the warrant has the same name as that of an offence in this State. It is the essential factual ingredients that determine whether two offences have the necessary correspondence. If an offence is specified in the warrant merely by the name by which it is known in the requesting State, it does not follow that because there is an offence in this State which goes by the same name, the two offences correspond with each other. They may be crucially different in essence. To show the necessary correspondence – as was held in…………it is necessary for the specification of the offence in the warrant (or in the warrant and its attendant documentation) to go further and identify the offence by reference to the factual components relied on; it is only by looking at those components that a court in this State can decide whether the offence so specified (regardless of what name is attached to it) would constitute, if committed in this State, a corresponding criminal offence of the required gravity.”

These extracts are sufficient in my view to put beyond any doubt the meaning of Section 42(2) of the 1965 Act, as inserted. That section is entirely consistent with that line of case-law. It follows therefore that the Warrants B and C are deficient in this regard. They contain no factual details upon which this court can decide that the act complained of would constitute an offence in this country, and simply because “grievous bodily harm” is a phrase well known in this country, being in use up to the passing of the 1997 Act, does not mean that correspondence is made out simply by the use of that phrase in any warrant on foot of which extradition is being sought. This Court must be informed of what act is alleged so that it can make a judgment as to whether it constitutes “serious harm” in this jurisdiction for the purposes of Section 4 of the Non-Fatal Offences Against the Person Act, 1997.  I therefore refuse to order the extradition of the respondent on foot of Warrants B and C, and I therefore must order his release in respect of all three warrants.

In view of these findings, it is unnecessary for me to deal with the application under Section 50 dealing with the question of delay and prejudice arising thereby. I want to add that at the conclusion of the application under Section 47 of the 1965 Act, Counsel for the respondent indicated to the Court that he felt that the Court should thereupon make a decision on that application before the application under Section 50 would proceed. The Court indicated a preference for proceeding immediately with the application under Section 50, as the Court wished to reserve its consideration in relation to the Section 50 application. As it transpired, there was given to the Court in the Section 50 application the sort of evidence which would have filled the lacuna which I have identified in relation to the details of the charge of causing grievous bodily harm, But that evidence was not given in the section 47 application. Therefore if the Court had, as might well have been the correct thing to do, proceeded to give its decision on the section 47 application, before embarking on the section 50 application, it would not have heard at that time the evidence to which I have just referred. It seems therefore only right that for the purposes of my determination of the Section 47 application, I should disregard completely the evidence which was tendered in relation to the Section 50 application, and accordingly I did so.