Supreme Court: Man accused of fraud in the United States loses extradition challenge

Four CourtsA man alleged to have committed 51 offences of fraud in the United States has been unsuccessful in his challenge to an order for his extradition under s.15 of the Extradition Act 1965.

The man contended that the State was prohibited from ordering his extradition in circumstances where his offences were regarded as being committed in Ireland, and referred to the Criminal Justice Act 2006 which provides that a person can have committed an offence under Irish law whether the action is committed “in the State or elsewhere”.

Finding that this was “principally procedural”, Chief Justice Frank Clarke stated that for the purposes of engaging s. 15, the offences could not be regarded as having been committed in Ireland

Background

Throughout the period of 2006- 2007, Mr Patrick Lee was alleged to have committed 51 offences of Wire Fraud, Unlawful Monetary Transactions, and Aggravated Identity Theft. All the offences were alleged to have been committed in the United States of America (USA), and consequently the USA sought the extradition of the Mr Lee to stand trial in respect of the alleged offences.

In 2015, the High Court (made an order under s.29 of the Extradition Act 1965 committing Mr Lee to prison to await the order of the Minister for Justice for his extradition. Mr Lee’s appeal was unanimously dismissed in the Court of Appeal.

Thereafter, Mr Lee was granted leave to appeal to the Supreme Court.

The appeal before the Supreme Court essentially raised questions concerning the proper interpretation of s.15 of the Extradition Act 1965

Section 15 of the Extradition Act 1965

In its original form s.15 of the Extradition Act 1965 was in the following terms: “Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.” (emphasis added)

This provision is clearly mandatory in that it provides that extradition “shall not” be granted where the condition specified is met.

The European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 inserted a new, more discretionary section 15 in place of the original – however, it was emphasised that the issue before the Supreme Court was governed by s. 15 in its original form – as such, the issue was whether the extradition requested in respect of Mr Lee was prohibited by the section in that original form.

A territoriality exception or a territoriality bar, such as that provided for in s.15, is common in international extradition treaties. In that context Art.7 of the European Convention on Extradition 1957 provides that “the requested party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory”.

While the offences alleged against Mr Lee were said to have been committed in the USA; and therefore s.15 would not appear to have any application – s.15  speaks of offences “regarded” as having been committed in Ireland, and therefore Mr Lee suggested that, on the same facts as those alleged against him in the USA, he could be prosecuted in this State for an offence contrary to s.71 of the Criminal Justice Act 2006.

Section 71 of the Criminal Justice Act 2006 provides that, subject to certain exceptions, a person who conspires, “whether in the State or elsewhere” to do an act in a place outside Ireland which constitutes a serious offence under the law of that place and which would, if done in Ireland, constitute a serious offence is to be guilty of an offence irrespective of whether such act actually takes place or not.

Furthermore, s.74 of the Criminal Justice Act 2006 provides: “ (1) Proceedings for an offence under section 71 or 72 in relation to an act committed outside the State may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.”

Thus, it was argued that the various wire fraud and connected offences alleged against Mr Lee could be prosecuted in Ireland under s.71 of the Criminal Justice Act 2006.

Supreme Court

The essential argument put forward on behalf of Mr Lee was that the fact that he could be prosecuted in Ireland for an offence arising out of the facts alleged against him in the USA means that the offence in question must be taken as being “regarded under the law of the State as having been committed in the State” for the purposes of s.15 so as to exclude his extradition.

Justice Clarke pointed out that certain offences in Irish law could be said to be extraterritorial – i.e. an offence under s.71 of the Criminal Justice Act 2006 for the purposes of Irish criminal law, can be committed contrary to that section where a person conspires outside Ireland to do an act which constitutes a serious offence under the law of the place where the act is intended to be committed.

Therefore, in principle, s.71 contemplates that one may commit an offence contrary to Irish criminal law by conspiring outside the jurisdiction to carry out acts outside the jurisdiction.

As such, it was “not impossible… that there might be a legislative provision which treats a particular type of offence as being actually committed in Ireland even though some (or perhaps even all) of the acts or omissions which constitute the offence in question occurred to a greater or lesser extent in a different jurisdiction”.

Notwithstanding these observations, Justice Clarke stated that it did not necessarily follow that any such offence must be deemed, for the purposes of s. 15 of the Extradition Act 1965, to be “regarded” as having been committed in Ireland as a matter of Irish law.

Finding that s. 74(1) was not “such a deeming provision”, and instead a “principally procedural” provision designed to ensure “that there are no jurisdictional issues encountered in determining which District or Circuit Court within Ireland may have jurisdiction to entertain prosecutions under ss. 71 and 72 of the 2006 Act”; Justice Clarke was satisfied that this was not a case where it could be said that a potential offence under s. 71 was regarded, for the purposes of engaging s. 15, as having been committed in Ireland.

The Supreme Court unanimously dismissed Mr Lee’s appeal, and held that the Court of Appeal was correct to uphold the decision of the High Court.

  • by Seosamh Gráinséir for Irish Legal News