Supreme Court allows appeal to refuse surrender for serving a composite sentence including non-corresponding offences.

THE SUPREME COURT

157/07

Murray C.J.

Geoghegan J.

Macken J.

Between

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant / RESPONDENT

-v-

SAULIUS FERENCA

RESPONDENT/Appellant

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, (Council Framework Decision on the European Arrest Warrant and the Surrender Procedures

Between member states, 13th June 2002, 2002/584/JHA) 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.

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)(b). Subsection

(1) is cited in full later in this judgment.

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, it is important to note, 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, (EAW), 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.

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] E.C.R. 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 the 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:

(i) an offence which corresponds to an offence under the law of the State, or,

(ii) the offence is an offence to which paragraph 2 of Article 2 of the Framework Decision applies, or

(iii) 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 (i) above because it is not a

corresponding offence.

Neither does it fall under the second alternative at (ii) 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 (iii) 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

Framework Decision according to which the offences listed in that provision give rise to surrender if they are

punishable in the issuing member state “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. Thus it is not open to a Court to ascertain whether an offence in a warrant 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.

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