Supreme Court allows extradition appeal, rejecting s. 15 Extradition Act 1965 defence for international drug importation.

THE SUPREME COURT

APPEAL NO. 148/13

Murray J.

O’Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

BETWEEN

ATTORNEY GENERAL

APPLICANT

AND

RENALDAS POCEVICIUS

RESPONDENT/APPELLANT

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 24th day of June, 2015

Introduction:

1. In this case the Kingdom of Norway (“Norway”) has sought the extradition of Mr. Pocevicius in respect of certain offences alleged

to have occurred on 25th September, 2008. The application for such order was moved in the High Court by the Attorney General on

behalf of the requesting country: it was strongly opposed on several grounds including those now forming the subject matter of this

appeal. In a judgment delivered on 9th April, 2013, Edwards J. rejected each of the objections as raised, and made an order directing

the detention of Mr. Pocevicius until such time as a formal order for his extradition should be made or until further order of the High

Court or of this Court, as the case may be. On application made on his behalf, a stay was placed on the execution of the said order

provided that a valid appeal was lodged within the prescribed period, as in fact it was. In such circumstances the stay was to remain

in place until the determination of this appeal. Accordingly, Mr. Pocevicius continues to be on bail on the same terms and conditions

as were originally granted.

2. In the notice of appeal dated 10th April, 2013, the following three grounds are relied upon: these read as follows:-

“(1)The learned trial Judge erred in law and/or in fact in determining that the Appellant/Respondent was sought for

the purpose of “proceedings” within the meaning of s. 9 of the Extradition Act, 1965. [Issue No. 1]

(2) The learned trial Judge erred in law and/or in fact in concluding that the surrender of the Appellant/Respondent

would not be disproportionate in the circumstances of this case. [Issue No. 2]

(3) The learned trial Judge erred in law and/or in fact in determining that the surrender of the Appellant/Respondent

did not contravene the provisions of s. 15 of the Extradition Act, 1965.” [Issue No. 3]

This is my judgment in respect of this said appeal.

3. In considering the first objection made, it is important to note that an understanding of the Norwegian criminal process is essential,

as much of the debate centres on when and at what point in that process it can be said that for the purposes of s. 9 of the

Extradition Act 1965, as amended (“the 1965 Act”), a person “is being proceeded” against (para. 30 infra). In essence, Mr. Pocevicius

(“the respondent” or “the appellant”) alleges that until a formal prosecution has been instituted, in respect of the extraditable

offence, the provisions of this section are not engaged. The Attorney General’s position on the other hand is that this is not so: she

says that once extradition is not being sought to further gather evidence upon which a future prosecution depends, and once a

decision to charge has in fact been made, there is a sufficient compliance with the section. The evidence therefore tendered by the

requesting country is critical to this issue.

4. Ground No. 2 is in effect self-explanatory, but in any event it was not proceeded with as part of this appeal. Ground No. 3, which

is referable to s. 15 of the 1965 Act, involves, inter alia, a consideration of what precise charge is being levelled against Mr.

Pocevicius and what are its essential elements: in addition, the question arises as to whether the establishment of the respondent’s

presence in Norway on the date of the alleged offence is critical in this regard.

The Domestic Regime:

5. The request for extradition falls to be determined under Part II of the 1965 Act: that part was applied to Norway which, like

Ireland, is a signatory to the European Convention on Extradition 1957 (“the Convention”), by order of the Minister for Foreign Affairs

made pursuant to s. 8 of the 1965 Act (Extradition Act 1965 (Application of Part II) Order 2000 [S.I. No. 474/2000]). Therefore, the

provisions of that Act, as well as certain Articles of the Convention, are relevant in the determination of this appeal.

Background - to the Offence:

6. On 25th September, 2008, a Lithuanian national, Michail Oleinik, was stopped by the police in the City of Stavanger and when a

search was carried out of his motor vehicle, 4.9 kilos of a banned substance was found hidden in a “made up” room in the petrol tank.

Evidence showed that Mr. Oleinik had driven from Lithuania via Sweden, arriving in Norway on the evening previous to the date

mentioned. It also showed that within Norway he had received two SMS messages sent from Lithuania by a fellow national, a Maksim

Popov, containing a phone number which he was to make contact with once he had arrived in Stavanger. That was the number linked

to the person who the police believe was responsible for meeting the courier and receiving the drugs. As planned, Michail Oleinik made

several attempts to call the number in question: these attempts failed however as he entered the prefix +47 before the mobile

number (being the Norwegian country code from abroad) which quite unintentionally and obviously unknown to him, had the affect of

directly ringing a Children’s Day Nursery in Trondelag. He was apprehended before any communication was made with the contact

number as given, and thus the intended recipient of the drugs was not identified at that time.

7. As part of their investigation, the police discovered that the phone number in question had been “established” by Mr. Pocevicius at

a petrol station in Klepp, Norway, on 22nd August, 2008, where as part of this purchase he produced his own driving license as

documentary proof of identity. On the previous day he had arrived in Stavanger and stayed in Norway until 27th August, 2008, when

he returned to Ireland. By way of telephone interception it was revealed that all traffic on this phone number during the period of his

stay related to or involved the respondent. It was further alleged in the Rogatory Commission that the respondent also arrived in

Norway immediately prior to the importation of the drugs, and left immediately after the arrest of Mr. Oleinik.

8. As documentation was being exchanged as part of these proceedings, controversy emerged as to the whereabouts of Mr.

Pocevicius on the actual date of the alleged offence. He admitted to being in Norway in September, 2008 but said that he left on 21st

September, on a flight from Stavanger to Dublin via Copenhagen: he then travelled by train to Cork where he lives. He also alleged

that on 24th September he signed on at the local social welfare office in Clonakilty. Some verifying documentation has been produced

in respect of these matters. The Norwegian authorities however reject the claim that he was not in Norway on 25th September, 2008.

9. In a further review of the information available, the Norwegian authorities point to the fact that whilst a gap in the phone traffic,

as recorded on the Norwegian network in respect of the aforesaid number, started on 21st September, 2008 at 2.00, it ended on 25th

September, 2008 at 00.47, the night before Mr. Oleinik was arrested. They also refer to a tapped conversation from this phone which

was timed as taking place on 27th September at 20.23, involving a male person who said that he had travelled 1,000 kilometres, part

of which was through England, and that at the time of the call “…it is raining here in Norway…”. Therefore, Mr. Pocevicius’s denial of

being in Norway on 25th September, 2008, is strongly disputed.

10. It will be apparent from the preceding paragraphs, that the information supplied regarding the dates of the respondent’s alleged

entry into, and departure from, Norway is not entirely consistent. This is not in any way critical save perhaps for his whereabouts on

25th of September, 2008. In any event a resolution of this factual conflict is not a matter for this Court, and moreover such is not

required so as to determine this appeal. It must be noted that it has never been seriously suggested that there is insufficient

evidence upon which an extradition request could be made, if the same was otherwise lawful. In addition, apart possibly from ground

No. 3, the actual state of the evidence underlying the alleged offence(s) is likewise not material. The conflict therefore, such as it is,

must await resolution by the Norwegian trial court, if the proceedings get that far.

Background - To the Basis of the Extradition Request:

11. On 11th November, 2008, the Rogaland Chief of Police, in a document headed “Charge Sheet”, is thereby recorded as charging

Renaldas Pocevicius:

“…with offences contrary to:-

Section 162(1) cf. subsection (3), first sentence, of the Norwegian General Civil Penal Code

in that he has unlawfully manufactured, imported, acquired, stored, or conveyed drugs, and the offence concerns a

very significant quantity

Grounds for the charge are the following offences or for being an accessory thereto

On Thursday, 25 September 2008, he imported approximately 5kg of methamphetamine to Norway from Lithuania.”

As this and later documentation show, the offence as alleged is in substance one of importation, which it is claimed is likely to have

been committed by way of a joint or complicit enterprise involving the respondent and others, which facilitated the importation of

prohibited drugs into Norwegian territory.

12. On 25th November, 2008, Stavanger District Court issued what is described as an “Arrest Order” in respect of the respondent by

reference to the offence above mentioned. It did so under s. 175(2) cf. Section 171 Nos. 1 and 2 of the Norwegian Criminal Procedure

Act and Article 95 of the Schengen Convention. That arrest order was “maintained” by different court orders on several occasions

thereafter, including one pronounced on 1st March, 2011, which remained valid for a period of twelve months therefrom.

13. By Rogatory Commission, issued by the Rogaland Public Prosecution Service on 12th October, 2010, the extradition of Mr.

Pocevicius was sought, based on that and the other documents travelling therewith. At the time he was, and indeed remains, living

with his family in this jurisdiction. The said request, which was supported by order of the High Court dated 14th day of September,

2011, was executed via the arrest of the respondent on 17th September, 2011 and his court appearance some days later. He was

released on bail and as stated, pending the determination of this appeal, so remains.

14. The Norwegian authorities submitted additional information to this country on 19th April, 2012 and on 7th June, 2012. On foot of

the documentation as it then existed, the challenge to the extradition request based on the Points of Objection lodged on 14th May,

2012 opened before Edwards J. on 25th July, 2012. At the end of Day 1 however, the learned judge was anything but satisfied as to

the evidence available on certain crucial questions. In his view, the additional information “far from clarifying” the situation, “created

[even] greater uncertainty”. Accordingly, as a direct result of the necessity for further clarification, the case was deferred.

Subsequently, further evidence was submitted in affidavit form by Mr. Tormod Haugnes who, as a public prosecutor in Rogaland

County, had in effect operative responsibility for the extradition request. The case then resumed and proceeded to the conclusion as

above outlined.

Background – to the Norwegian Criminal Process:

15. In this case it can be stated that the evidence relating to the Norwegian criminal process which was contained in the original

papers was quite uninformative, being pitched at a most general level with important words and phrases such as, “suspect”, “being

suspected of”, “arrested”, and “charged”, left undefined, even un-described. Nothing was added to this unsatisfactory state of affairs

by the additional information, submitted on 19th April, 2012 (A.I. No.1). The second supplemental affidavit of 7th June, 2012 (A.I. No.

2), even if more informative, nonetheless raised a whole new set of relevant queries from an Irish perspective. Whilst it stated that

the purpose of the request was to “institute criminal proceedings” against the respondent and to “bring the case before the court”, it

went on to also state that after his extradition, Mr. Pocevicius would be in the position to make a statement to the police and that if

he did, the same would form part “of the total evidentiary basis when it is finally decided whether or not to file charges”. Further, it

also added that such a decision was one for the Director General of Public Prosecutions.

16. After the trial judge’s intervention much more material came to light by way of two documents, the first of which was dated 12th

September, 2012 (additional information No. 3 (“A.I. No.3”)), and the second of which was dated 19th October, 2012 (additional

information No. 4 (A.I. No.4”)).

17. The following information in summarised form, appears in A.I. No. 3:-

(1) The prosecution system in Norway has three levels to it. In order of significance, the Director General of Public

Prosecutions is at the top, followed at regional level by the Regional Public Prosecution Service (known generally as

“Public Prosecutors”), with the lowest level being the prosecuting authority vested in the police, also known as the

Police Prosecuting Authority. The following is a little more detail as to the function, capacity and competence of

each entity at its respective level.

(2) The Police Prosecuting Authority:

The police are charged with the responsibility of leading investigations into criminal activity: as part thereof they

may “charge” persons with offences “by issuing arrest orders, orders for searches…” etc. They also have a

prosecuting function in that, in less serious cases they can “lay an information” against an accused, although one is

not quite told precisely what this means. They can issue fines in lieu of prosecution and can act as prosecutors in

respect of certain cases. In addition, they may discontinue “proceedings” in the event of being satisfied that

inadequate evidence exists, to proceed further with the matter. If there should be sufficient evidence they may

bring an indictment where competent to do so: otherwise the case is transferred to the Public Prosecutors with a

recommendation from them.

(3) The Regional Public Prosecution Services:

When a case has been “fully investigated” by the police, the file will be passed to this service with a proposal for

further action. These prosecutors may bring “indictments”, subject to certain exceptions which are reserved solely

to the Director General, and may themselves prosecute the most serious criminal cases before the courts. They can

also refer cases back for further prosecution to the police prosecuting authority. In addition, they deal with most

appeals from District Court judgments to the Court of Appeal, again with some exceptions which may be referred

back to the police prosecuting authority. Finally, save for a number of limited exceptions which the Director General

takes charge of, the public prosecutors also prosecute appeals before the Norwegian Supreme Court.

(4) The Director General of Public Prosecutions (or “the Director General”) brings “indictments” in the most serious

crimes; when these reach him, they come with a recommendation from the public prosecutors. The Office of the

Director General, does not of itself handle cases, apart from a few test cases which it moves before the Supreme

Court.

18. The distribution of competence between these three agencies as to which one should decide on the question of an “indictment”

(para. 19 infra), is largely linked to the maximum sentence available for the criminal activity under investigation. The longer the

sentence the higher the level at which the decision to indict is taken. As the respondent in this case is charged with an offence(s)

which carry a maximum sentence of 21 years, the Director General must decide on the indictment: “It is for this reason that it is the

Director General of Public Prosecutions who will take the final decision as to whether or not to indict Pocevicius for this criminal

offence”. (A.I. No. 3)

19. In addition, it is important to note that a distinction is made in Norwegian criminal law between a “charge” and an “indictment”.

The decision to “indict” is a decision to bring the case before the court so that a verdict, on the evidence and the law, can be given.

On the other hand “to charge” a person is to level a preliminary accusation against him: this is done during and as part of an

investigation and is referable to mattes such as, inter alia, arrests, searches or other such investigative steps. As the police

investigate all criminal cases in Norway it is they who formally charge all suspects, regardless of the maximum or minimum sentence

involved.

20. With specific reference to Mr. Pocevicius, the position as outlined in A.I. No.3 is that the police prosecuting authority have

charged him with a serious drug offence. As his extradition is being requested, an “Arrest Order” has been made and has been

maintained by the local District Court, over a three and a half year period. Since the Rogatory Commission has been initiated by the

public prosecution service, such service has also presented as part of this process, a “provisional assessment” to the effect that

based on the existing evidence, grounds exist for issuing an indictment against the respondent. This means, according to Mr. Tormod

Haugnes, that:

“…if no information subsequently emerges which would place the case in a different light, a request for extradition

will have the clear intention of bringing the case before the court when the charged person has been extradited.

However, as already mentioned, it is [only] the Director General…who in a case like the present, has the

competence to issue an indictment...”.

This step has not, as yet, been taken. Accordingly, the investigation is ongoing.

21. What remains to be done however is primarily to question the respondent, who may of course refuse to answer any questions put

to him, by either the police or the court. If he should however make a statement, this will be taken into account and may lead to

further investigations, the purpose of which would be to confirm or disprove any such statement so made. If he should decline to do

so, then the file will be submitted to the Director General with its existing information, for ultimate decision. Finally, it should be noted

that if there are good grounds for so doing, the police may continue their investigation even after the laying of an indictment. This

obligation, which cannot be abandoned, derives from the duty of “objectivity” which rests on the police and the police prosecuting

authority, to pursue their search for any further information, which, if available, may be of assistance to, or otherwise benefit, the

charged or indicted person.

22. The final supplement of evidence (A.I. No. 4) to the Rogatory Commission is again from Mr. Haugnes and is dated 19th October,

2012. It is more convenient, and perhaps even more productive, to quote from it in full rather than to summarise it: it is not very long

in any event and reads as follows:-

“If I were to make a recommendation today to the Norwegian Director General…on the basis of the existing

evidence, I would obviously recommend that an indictment be brought against Pocevicius. On this basis, it could

safely be said that it is our clear intention to bring the case against Pocevicius before the court if he is extradited

to Norway.

It is not a requirement under Norwegian law for a suspect to be questioned before bringing an indictment against

him. No-one is obliged to make a statement to the police in Norway, and a suspect/charged person…are also not

obliged to make a statement to any court of justice. Consequently, an indictment may be brought without the

indicted person having made a statement. However the charged person’s statement is considered so important to

the total evidential situation that it would contravene best prosecution practice not to question a suspect if he/she

is willing to make a statement.”

23. On the respondent’s side, Ms. Maren Østern, a lawyer in the Norwegian firm of Hestenes og Dramer & Co., submitted an opinion on

behalf of Mr. Pocevicius: however, the same related to an aspect of Norwegian law which is quite unrelated to the matters covered

by the information supplied by the requesting authority. Accordingly, in the absence of any conflicting evidence, the learned trial

judge was left to rely solely on Mr. Haugnes and to make such findings and draw such inferences therefrom, as might be appropriate.

Issue No. 1:

“Proceedings” for the Purpose of Section 9 of the 1965 Act:

24. The enactment of the 1965 Act was reflective of the fact that Ireland had by then become a signatory to the Convention done in

Paris in 1957. The Act sets out the domestic provisions which give effect to this country’s obligations thereunder: such a process of

internal facilitation is quite common where external international agreements or treaties are given legal status in this jurisdiction. The

other and most obvious scheme dealing with a similar subject matter as that of the 1965 Act is Council Framework Decision

2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the

Framework Decision”) which gave rise to the European Arrest Warrant Acts 2003 - 2012 (“the 2003 Act”). Although both regimes

have a common purpose, their method of implementation is somewhat different: accordingly, whilst the 2003 Act is instructive in this

case, and whilst a certain amount of commonality exists between both, nonetheless care must be taken to avoid over reliance on

that system. Therefore, each piece of legislation must also be viewed against its own individual background.

25. Extradition in some form has been known for centuries: Extradition Law in Ireland (Michael Forde; Dublin; Thomson Round Hall;

2005; 3rd ed.; paras 1.01 – 1.05). Countries at different periods have had various agreements providing for the mutual transfer of

persons wanted to stand trial or to serve imposed sentences. In the early stages these were mostly effected by single treaty

arrangements. However, as the international mobility of suspected offenders and convicted criminals greatly increased, multi-lateral

treaties began to emerge. One such, of course, was the 1957 Convention which was conceived within, and later developed to finality,

via the Council of Europe.

26. Quite evidently the operation of the Convention involved the accommodation of many different police, judicial, legal and

administrative systems: a fact known to all countries, at least to some extent, when becoming a party to its terms. Therefore, the

implementing provisions adopted by each contracting state had to have regard for such diversity, as otherwise the effective

enforcement of the Convention had no prospect of flourishing or even perhaps of survival. Thus, the desired effect sought to be

achieved by the enactment of the 1965 Act must never be lost sight of: this to include its intended reach, extending as it does well

beyond national boundaries. This interpretative approach at a general level is with obvious modification equally applicable to the 2003

Act.

27. Before considering the relevant provisions of the 1965 Act, it is necessary to refer to Article 1 of the Convention which sets out in

an overall sense the obligation to extradite which has been undertaken by each participating country. That Article reads as follows:-

“Article 1 – Obligation to extradite

The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in

this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an

offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.” (emphasis

added)

28. As appears from its wording it covers two distinct groups of persons who are separated by quite different sets of circumstances.

The first relates to individuals against whom the requesting country “are proceeding for an offence”: but such persons quite obviously

have not been, in respect thereof, the subject of any determination of guilt or innocence. The second refers to persons who are

“wanted” in the requesting country, to serve or serve out a jail sentence or a detention period, imposed by preceding order.

Accordingly, a sharp distinction exists between one class and the other as it does with the circumstances which give rise to such

persons’ discrete and individual status, at the time. All of this is clearly recognised in the terms of Article 1 itself. This is of some

importance when considering certain provisions of the 1965 Act.

29. There are only two provisions of that Act which are directly in play, the first of which is s. 8(1), contained in Part II, which in its

amended form states as follows:-

“8. -(1) Where by any international agreement or convention to which the State is a party an arrangement (in this

Act referred to as an extradition agreement) is made with another country for the surrender by each country to the

other of persons wanted for prosecution or punishment or where the Minister is satisfied that reciprocal facilities to

that effect will be afforded by another country, the Minister for Foreign Affairs may, after consultation with the

Minister, by order apply this Part -

(a) in relation to that country, or

(b) in relation to a place or territory for whose external relations that country is (in whole or in part)

responsible.” (emphasis added)

30. The second is s. 9 of the Act which is the critical provision as it is under that section that the State’s obligations directly arise. It

reads:-

“9.-Where a country in relation to which this Part applies duly requests the surrender of a person who is being

proceeded against in that country for an offence or who is wanted by that country for the carrying out of a

sentence, that person shall, subject to and in accordance with the provisions of this Part, be surrendered to that

country.” (emphasis added)

31. As appears from the above: Article 1 of the Convention refers to persons against whom the requesting party “are proceeding for

an offence” or who “are wanted” to serve a sentence or comply with the terms of a detention order: s. 8 of the 1965 Act speaks of

“persons wanted for prosecution or punishment” with s. 9 in its phraseology closely resembling that as specified in Article 1. Whilst I

am satisfied that the obligation imposed on this State to extradite persons who have not been convicted of the underlying offence in

the requesting country is determined by the interpretation of s. 9 (read in conjunction with s. 29 of the Act), and not by s. 8 of the

1965 Act, if different in any meaningful way or purpose, nonetheless a reference to these provisions, in particular s. 8, is necessary

so as to deal, inter alia, with the following submission made on behalf of the Attorney General.

32. Section 8 of the 1965 Act records at an overview level the circumstances in which this State will facilitate the extradition of

persons, residing or found within its territory, to a third party Convention country. The reciprocal facilities which the section speaks of

will follow once the relevant Minister makes an order applying that part of the Act to such a country. Norway is designated for such

purpose and nothing turns on this. The reason why I specifically mention the section is because of the use of the word “wanted” and

its apparent indiscriminate application to both pre-trial and post-conviction persons alike. The Attorney General relies on this term to

suggest that the critical phrase in s. 9 as relevant to this case, which is a person “who is being proceeded against”, should have a

meaning comparable with or analogous to that which the word “wanted”, has or should be given, in s. 8. I do not accept such a

submission.

33. Article 1 of the Convention is quite clear in differentiating between the two categories of persons to which its provisions apply

(paras. 27 and 28 supra). The word “wanted” is referable solely to the second group and not to both. Section 8 must be understood

in the same way. As its provisions are more in the nature of recitals, rather than in the nature of substantive obligations, the

shorthand manner of describing both groups to which the Act applies, is perfectly understandable. It is however s. 9 which is the

pivotal section and which in its wording is next to being identical to Article 1 of the Convention. It is the correct interpretation of that

statutory provision which determines the first issue on this appeal.

34. The central question therefore is whether the appellant is a person “who is being proceeded against”, for the subject offence in

the state of the requesting country. This involves the application of the section, as informed by the relevant case law (if any), to the

evidential facts as established or accepted. Those facts, presented solely in affidavit form, and any necessary inferences therefrom

are derived purely from the evidence of Mr. Tormod Haugnes, the most salient aspects of which I have endeavoured to set out

previously in this judgment (paras. 15, 17 to 22 supra).

35. The High Court, in its judgment, did not as such separately make any findings of fact: however, the learned judge was satisfied

that the extradition request was not being sought solely or even primarily, for investigative purposes: rather, it was the authority’s

intention to prosecute Mr. Pocevicius for the described offence even if a final decision from the competent authority had yet to be

taken in that regard. The absence of such decision evidently caused the learned judge considerable difficulties, for he was able to

decide the point solely, as he described, “on balance”.

36. The learned judge agreed that the appellant was still only a suspect, but “a suspect whose prosecution is intended”. He also

accepted that while aspects of the investigation remained to be addressed, the present decision of the Public Prosecutors to

recommend prosecution was not dependent on any further investigation producing sufficient evidence, to add to that already existing

for trial purposes. Whilst a final decision to indict rested with the Director General, that fact, given the overall circumstances, did not

affect his conclusion that the provisions of s. 9 of the 1965 Act applied to Mr. Pocevicius.

37. He supported the conclusion by pointing out, as seems to be the fact, that the public prosecutors and the Director General are

part of the same prosecution service, even if acting at different levels. Because of this the learned judge felt that they would share a

common approach to the assessment of evidence “rendering it likely that a recommendation would be followed in most cases”. Whilst

acknowledging that the Director General could not simply rubberstamp the recommendation and that possibly he could refuse to issue

an indictment, “the reality is that refusal to [so do] would be an unlikely eventuality if there are no other unforeseen developments in

the case”. Essentially so based, he concluded as he did.

38. In both the written submissions and oral argument, much debate centred on case law from this Court, but such has derived

mostly from the 2003 Act, rather than from the provision of the 1965 Act. Apparently no direct authority exists on the point at issue;

Brien v. King [1997] I.L.R.M. 338 (“Brien v. King”) being the closest authority identified by either party.

39. It is claimed on behalf of the appellant that there is a striking significance in the fact that no provision akin to s. 21A of the 2003

Act is to be found in the 1965 Act. That section provides, inter alia, that:-

“21A. – (1) Where a European Arrest Warrant is issued in the issuing state in respect of a person who has not been

convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a

decision has not been made to charge the person with, and try him or her for, that offence in the issuing state.”

(Emphasis added)

It should be added that under subs. (2) of the section there is a presumption that such a decision has been made unless the contrary

is proved.

40. Before specifically addressing this issue, could I make some general observations which are equally applicable to extradition with

third countries and to surrender between member states of the European Union, subject of course to the specific provision of s. 21A

of the 2003 Act, which was inserted by way of an amendment contained in the Criminal Justice (Terrorist Offences) Act 2005 (“the

2005 Act”). These comments do not relate to persons who are the subject of a conviction or detention order.

41. Following on from what is stated above (paras. 25 and 26 supra) about the different systems which exist in contracting states

and member states of the European Union, it is self-evident that the meaning of terms, so commonly understood in this jurisdiction,

may have an unrelated or quite distinct meaning elsewhere. The evidence in this case clearly demonstrates this point. Consequently,

one must be very careful not to approach terms solely or perhaps even predominantly, through the lens of domestic jurisprudence.

Whilst foreign law is a question of fact to be determined by the court of the requested state, the same must be decided on the

adduced evidence and should not be inappropriately influenced by internal or indigenous considerations. Accordingly, terms such as

“investigation”, “suspect”, “accused”, “charge”, “indictment”, “prosecute” and “proceedings”, to name but some, may have, and may

have to be given, a particular meaning for the purpose of extradition/surrender cases, which is quite distinct from that which might

normally apply in a purely national context (The Minister for Justice, Equality and Law Reform v. Olsson [2011] 1 I.R. 384 (“Olsson”),

para. 28). Therefore, a high level of consciousness is required in this regard.

42. Even though the mechanism by which the 2003 Act operates is quite different from that which underpins Part II of the 1965 Act,

nonetheless the overall objective of both regimes is designed to achieve the same end (para. 24 supra). It is that those suspected of

certain crimes will not be immune from prosecution simply because of the extra territoriality of their location, sometimes deliberately

chosen so as to make extradition/surrender as difficult as possible. In broad terms, the 2003 Act is intended to capture the same two

categories of persons as are envisaged in s. 9 of the 1965 Act: these are individuals which the requesting state has already

prosecuted or intends to prosecute on the one hand, and post-conviction individuals either to serve their sentence or be sentenced,

on the other (s. 10 of the 2003 Act). Even allowing for the more detailed provisions of the European Union’s instrument and its

implementing domestic measures, nonetheless it is instructive to note what circumstances have been considered by the courts as

sufficient, regarding the first category of persons, as would justify the making of a surrender order.

43. Under Article (1)(i) of the Framework Decision it is stated that a European Arrest Warrant is a judicial decision issued by a member

state with a view to the arrest and surrender of the requested person “for the purposes of conducting a criminal prosecution”.

Section 10 of the 2003 Act, in its original form, speaks of an “intention” to bring proceedings: in 2005 it added persons “who [are] the

subject of proceedings”. Section 11(3)(b) of the Act requires a statement in writing to accompany the warrant, that where the

person has not been charged a decision “to [so charge] and try him or her for, the offence…”, has been made. Section 21A(1) of the

Act, as about set out (para. 39 supra), prohibits the surrender of the requested person “if [the High Court] is satisfied that a decision

has not been made to charge the person with, and try him or her for, that offence in the issuing state” (emphases added). It is the

meaning of this provision which has given rise to some recent decisions, most notably those of Olsson and The Minister for Justice,

Equality and Law Reform v. Bailey [2012] 4 I.R. 1 (“Bailey”).

44. The evidence in Olsson, as given on behalf of the appellant, was that under Swedish law his status was one “on probable cause

suspected”, of the crime in question, and that no decision had been taken either to charge him or that he should stand trial, in

respect thereof. The prosecutor with responsibility for the case acknowledged that no formal charge had been laid and that likewise

no formal decision to prosecute had been made. The reason according to her evidence was that under Swedish law it is legally

impossible to arrive at a final decision until the person in issue is presented with the investigative evidence and given an opportunity

of responding. She continued however by stating that Mr. Olsson was sought for the purposes “of conducting a criminal prosecution”,

even if under Swedish law no final decision to prosecute can be taken until such process is finalised. Of interest to note is that in her

evidence, the prosecutor suggested that the system so described is analogous to that, which operates in several other member

countries such as Finland, Denmark, Germany, The Netherlands, Spain, Estonia and Austria.

45. The Court in Olsson (O’Donnell J. with whom the other members concurred), when evaluating the meaning of s. 21A of the 2003

Act, conducted an inclusive or a sufficiency analysis as well as an exclusive or insufficiency one. In so doing it instanced a number of

circumstances, which if existing or if intended to exist in the requesting country, would not be regarded as being an adequate

compliance with the section: and likewise it identified certain steps which would be so regarded. It concluded on the facts that there

was sufficient evidence to establish, that the purpose of the arrest warrant was for the prosecution and trial of the subject person on

the offences specified in that warrant. Accordingly, it dismissed his appeal from the High Court surrender order. In this context the

Minister for Justice, Equality and Law Reform v. McArdle [2005] 4 I.R. 260 (“McArdle”) was cited, although it should be noted that

this case was decided on the statutory provisions existing before the introduction of s. 21A, which was inserted by the 2005 Act.

46. The application for the surrender of Mr. Bailey made by the French authorities raised several issues not previously considered by

this Court. None are of specific relevance to this case other than the Court’s treatment of Mr. Bailey’s objection based on s. 21A of

the 2003 Act. In the event and by reference to the specific evidence, each member of the Court in separate judgments was satisfied

that whilst there was a decision in existence to charge Mr. Bailey, there was not a decision to put him on trial for the alleged offence.

Accordingly, the provisions of s. 21A were not satisfied and on that, and let it be said on a number of other grounds, the request for

surrender was rejected.

47. There are however, two extracts from the judgment of Murray J. in Bailey, which are apposite to this case. At para. 141 it is

stated:-

“It is a long established principle of extradition law that persons are not extradited for the purposes of questioning

them as suspects but for the purpose of charging and prosecuting them with a criminal offence so that they may be

brought to trial in a court of law. That principle is also reflected in the system of surrender established by the

Framework Decision.”

At para. 143 the learned judge continued:-

“Thus a person cannot be surrendered pursuant to the Act of 2003 solely because he or she is suspected of having

committed an offence and the relevant authorities wish to question the person concerned or have him or her assist

them in one form or another in their inquiries and investigations. This is so irrespective of whether the authorities

concerned are judicial or police.”

There are a number of other passages but these are the most salient for present purposes.

48. From the above and other similar authorities the following can be deduced, but be it noted that the same are not in any way

intended to be exhaustive:-

(1)

• A person should be surrendered where the purpose of the request is “to prosecute”, that is, to put him on trial for

the subject offence.

• Where such prosecution proceedings are in being that will be a sufficient compliance with this requirement.

• Where such proceedings are not in being the intention to prosecute must be founded on the existing evidence, as

known at the time of the request.

• Where such proceedings are not in being an intention to charge only is not sufficient: in addition, there must be a

decision to try, i.e. to put the individual on trial.

(2)

• A person therefore should obviously not be surrendered purely on suspicion of having committed an offence.

• Likewise, where a person is sought simply to help the police with their inquiries, or to aid them with their

investigation or to be eliminated from such inquiries.

• Therefore a person who is merely a “suspect” should not be the subject matter of such an order.

(3)

• It is a principle of surrender law that an order will not be made if the purpose thereof is related only to a

continuation of the investigation: a person will not be extradited or surrendered for this reason.

• This does not mean that the investigation must be irreversibly concluded: there is no obligation to this end:

indeed, it is counter-intuitive to so suggest as if such was the case, any further evidence subsequently discovered,

even of innocence, would have to be disregarded: further, the entire process of surrender could be irreparably

compromised if the request had to await the complete finalisation of the investigation.

• What is required however is that the decision to prosecute is not contingent or otherwise dependent on any

further investigation producing evidence without which no such decision could justifiably be made.

• The investigation must therefore have reached a level whereby there exists sufficient evidence in the opinion of

the competent prosecuting authority upon which the extradited person can be charged and tried and further that a

decision to do so has in fact been made.

• The fact that an arrest warrant has been issued will not, of itself, be determinative on the point last made.

Depending on the investigative and the prosecution process of each country, such a warrant may be consistent

either with the purpose of putting the individual on trial or with a continuation of the investigative part of the

process. The latter is not sufficient to establish an intention to prosecute.

(4)

• A decision to cease to prosecute, based on evidence discovered as part of any ongoing investigation is

completely compatible with surrender: it could not be otherwise for if it was, it could mean that a person whose

innocence was established subsequent to charge, would have to stand trial. Evidently that could not be the case.

49. In Brien v. King Barr J. held that extradition under the 1965 Act was permitted only where the real purpose of the request was to

bring the subject person before the courts of the requesting state so as to try him on the charge in question. In other words, there

had to be a real intention to prosecute: anything short of that is not sufficient. I agree with the generality of this statement. It is

very much in keeping with the strong policy and constitutional imperative which underpins the surrender of persons by one sovereign

country to another. It also is very much akin to the general thrust of the 2003 Act, in particular in its pre 2005 amended form, upon

which the decision of this Court (Murray C.J.) in McArdle is based. Approached with care (paras. 40 - 48 supra) and obviously subject

to specific statutory provisions such as s. 21A of the 2003 Act, many of the general provisions set out in McArdle, Olsson and Bailey

reflect the construction and operation of the 1965 Act.

50. It can, I think, be specifically and definitively stated at a general level that a person will not be extradited unless, at the time of

the extradition request, the requesting country has a fixed intention to “charge” the suspect person with the offence(s) specified in

the warrant. By the word “charge” I mean that the subject individual is no longer simply a “suspect” in the crime under investigation,

but rather that his status is then one of “an accused”, as these terms are understood in Irish law. Such a decision must be based on

the evidence then existing. It cannot be dependent on the emergence of further evidence from for example, any police investigation

or court inquiry of the subject person following extradition. Such is not the purpose of the 1965 Act: on the contrary, such would be

a compelling ground for refusal. The fact that the investigative part of the prosecution process is not formally concluded is not

conclusive. It is sufficient that the intention to prosecute is presently there and that in the absence of new evidence, such intention

will be implemented. This situation is not in any way affected by the possibility that the proceedings may be terminated at some point

in the future: this may result from many different reasons such as, but not limited to, the emergence of fresh evidence which renders

a continuation of the prosecution inappropriate. The time at which the decision to prosecute is made is what is critical: that is at the

requesting stage.

51. Before applying these principles to the facts of this case, could I deal with a particular submission made by the respondent which

is that, as a precondition to the application of s. 9 of the 1965 Act, there must be proceedings in being,in the sense that the formal

prosecution must have commenced in respect of the affected person. I entirely reject this proposition: such a construction would

seriously curtail the effectiveness of the 1965 Act and would be inconsistent with the State’s international commitment, which being

a signatory to the 1957 Convention entails. In my view, it was never intended that the prosecution proceedings should have reached

such a stage before the relevant provision of the 1965 Act became operable. In particular, the relevant wording in s. 9 of the Act

does not bear such a construction.

52. If the public prosecutor was the competent authority to issue an indictment in this case, the point now under discussion, namely

whether the respondent is being sought for the purposes of “being proceeded with” under s. 9 of the Act, would be unarguable. The

evidence shows that so far as the process has gone, a decision has been taken that based on the existing evidence there are

sufficient grounds to bring the respondent before the court so that his guilt or innocence on these charges can be determined: in

other words a trial on the merits based on the public prosecutors assessment of what it can presently produce, is what is envisaged.

If an indictment should issue, the same prosecutors will have carriage of the court’s prosecution. Even though their assessment is

provisional for the reasons above stated, nevertheless it is an important indication of where, or at what point in the process, the

Norwegian authorities are at present with this particular case.

53. The request for Mr. Pocevicius’s extradition cannot, in the sense in which the relevant terms are used in extradition law, be said

to be for the purposes of “investigation” or of “continuing the investigation”. The reason why an indictment has not issued is that

under Norwegian law it is a requirement, at least to the standard of best prosecution practice, that before making a final decision in

that regard, the subject person should be given an opportunity of making a statement or of putting forward his version of events, so

that the police or the court as the case may be, can assess what it says in light of the evidence which has already been

accumulated. If, as is his right, he fails or refuses to offer any information, then the evidence as it stands will be submitted to the

Director General by the public prosecutors with a recommendation that an indictment should issue. If he makes a statement, then

depending on its content and what any follow up inquiries may lead to, the case may be discontinued or it may still be submitted for

final decision. But the crucial point is that if nothing emerges from such an interview process, the Director General, based on what is

presently available, will be advised to issue an indictment. So the investigation is still open but only so as to offer the respondent an

opportunity of disputing, rebutting or challenging the existing evidence “but not for any other specific purpose”: in particular, not for

the purpose of obtaining additional evidence upon which the ultimate decision might rest.

54. Given the diversity of systems which the 1965 Act was intended to accommodate, I am perfectly satisfied that what has been

described herein as remaining to be done, so as to complete the investigative process, is entirely consistent with the provisions of the

Act and the policy and the objectives behind it: accordingly, in my view, this point does not constitute any bar to extradition.

55. The prosecution process must be looked upon as a continuum. In a case such as this, it involves at various stages the police, the

public prosecutors and the Director General. It has passed through the hands of those who make the inquiries, conduct the

investigation and accumulate the evidence: this part of the process is thus at an end, subject only to interviewing the respondent if

extradited, and any further inquiries arising therefrom, or which they may be asked to undertake. Their final act was to transfer the

case to the public prosecutor with a recommendation as to its future course. This therefore, subject as aforesaid, terminates the

involvement of the police with this case.

56. The public prosecutors have advanced the process as much as they have authority to do so. They have assessed and evaluated

the evidence. They have formed a view on it. In their opinion, it is of such a character as would sustain and support an indictment.

They have made a recommendation to the Director General to this effect. They do not have power to go any further. Is the fact

therefore that the ultimate decision to prosecute has not yet been taken fatal to this application? This is the end point of issue No. 1.

57. Despite the extensive documentation ultimately submitted, there is no reference whatsoever as to what view the Director General

might take if the evidence remains as it is. Nor is there any indication of a pattern or course of conduct as to what his decision might

be in similar circumstances, where such a recommendation has been made. What is known is that the Director General is independent

in the functions which he performs and is not bound by any course of action suggested by the public prosecutors. I, therefore,

cannot see any basis upon which one could conclude from the evidence that there exists a likelihood of the Director General adopting

or endorsing by way of separate decision, the recommendation which the public prosecutors intend to make to him.

58. Having said that however, there is no question of the Director General being able to activate or reactivate any further part of the

investigative process other than to interview the respondent in the manner and for the purposes, above described. Therefore, in the

absence of further evidence emerging, the options open to him are either to endorse the recommendation or to decline to so do. If it

should be the latter, then the prosecution proceedings, such as they are, will be at an end. If it should be the former, an indictment

will be laid. In such circumstances the entire process, looked as a whole, can be regarded as being in compliance with s. 9 of the

1965 Act and one can thus conclude that the requesting state “are proceeding” against Mr. Pocevicius for the offence in question.

Issue No. 2:

Proportionality:

59. A subsidiary argument has been made in the submissions that to order the respondent’s extradition would be disproportionate

when the available evidence against him is considered and in light of his engagement with that evidence. The further point is his offer

of interview from within this jurisdiction. This ground of objection however was not pursued at the hearing and was in fact expressly

abandoned. Accordingly, it is unnecessary to further consider the matter.

Issue No. 3:

The Section 15 Bar to Extradition:

60. In para. 11 of this judgment, details are given of the subject offence as recorded in the document headed “Charge Sheet”, dated

11th November, 2008. It is clear from its terms as it is from the Rogatory Commission that the locus of the offence is at no point

expressly specified. Relying on this fact the respondent argues that under the provisions of s. 15 of the 1965 Act, in its original form

which is that as applicable to this case, there exists a clear bar to surrender on the basis of territoriality. That section reads:-

“15. - 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.”

61. On the factual side of this argument, the respondent asserts, as set out above, that he left Norway on 21st September, 2008,

that he travelled by train from Dublin to Cork later that day and that on 24th September, 2008, he signed on at Clonakilty Social

Welfare office. He disputes the claim that he was in Norway on 25th September, 2008.

62. The authorities responded to these averments by firstly pointing out two possibilities: that he never returned to Norway after the

21st September or that, as they assert, he was still in Norway on 25th September, 2008 (A.I. No. 1 of 19/4/2012). Dealing specifically

with the question of where the offence is alleged to have occurred, Mr. Tormod Haugnes stated in A.I. No. 2 of the 7th June 2012:-

“Regarding the question as to exactly where the crime took place, it is clearly stated in the charge sheet dated 18

November 2008 [incorrect date] that it concerns import to Norway from Lithuania. Import means crossing the border

during which the substance in this case was imported to Norway. Clearly, Norway has jurisdiction to prosecute the

case as the crime was committed on Norwegian territory. The same applies to Lithuania (for the export) and

Sweden (for the transport across Swedish territory). The actual transport from Lithuania was carried out by a

courier. Renaldas Pocevicius is charged with complicity in the import as he did not in fact personally transport the

substance during the import. This is because the substance was imported according to an agreement with

Pocevicius and it is him the courier was told to contact over the phone when he had crossed the Norwegian border,

to enable the recipients to take possession of the substance. Under Norwegian law, an accomplice does not need to

be at the place where the actual crime was being committed. It is quite common for those who pull the strings

(those behind the crime) to stay away from the substance in order to avoid detection. Therefore, whether Renaldas

Pocevicius was in Norway, Ireland or at another place when the courier crossed the border into Norway, and was to

contact him via telephone at a later point in time, has no bearing on his liability as an accomplice in Norway.”

63. The respondent interprets this evidence as indicating that the crime with which he is charged is, according to the authorities,

triable in Norway whether or not he was in that country, in Ireland, or indeed anywhere else, at the relevant time. He goes further

and asserts that the requesting country intends to prosecute him irrespective of whether the offence was committed in Norway “or

without”, meaning presumably, in this jurisdiction.

64. In view of this intended approach, and in particular in light of the indifference shown by the authorities as to where the crime is

alleged to have been committed, it is submitted by the respondent that if he was in Ireland on the relevant date, then this would

inevitably mean that he could be prosecuted pursuant to the provisions of s. 20 of the Misuse of Drugs Act 1977, which reads:-

“20. – (1) Any person who aids, abets, counsels or induces the commission in a place outside the State of an

offence punishable under a corresponding law in force in that place shall be guilty of an offence.” (emphasis added)

Given the optional stance of the requesting state, it is therefore alleged that by virtue of the above statutory provisions, the

respondent should not be extradited.

65. It would be quite an incomplete representation of the Norwegian position to rest it on the two scenarios above set out (para. 62

supra). Whilst it would not be useful to repeat the background as previously mentioned, it would however be helpful to highlight a few

of the more salient features of the evidence:-

• The phone number which the courier, Mr. Oleinik, was to contact having arrived in Stavanger was the phone of

the respondent who had acquired it on 22nd August, 2008, using his driving license as visual verification of his

identity.

• It is being asserted by the requesting state that even if he had returned to Ireland on 21st and signed-on on 24th

September, 2008, nonetheless he was still capable of being in Norway on 25th September, 2008.

• In support of this, reference is made to the traffic and gaps in the traffic, as recorded to his phone number on the

Norwegian network. Calls ceased at 2.00 on 21st September and resumed at 00.47 on 25th September: and

continued until 15.15 on 28th September, 2008.

• A particular phone conversation on 27th September timed at 20.33 is also relied upon. That records a male

recounting that he had undertaken a very long car journey of over a thousand kilometres, part of which was

through England, and stating that it was “raining here in Norway”, at the time.

66. Even though reference has been made to two “alternatives”, one of which was that Mr. Pocevicius was not in Norway on the day

in question, that however is not what is being alleged or relied upon. On the contrary it is being firmly asserted by the Norwegian

authorities, despite being disputed by the respondent, that he was in fact on Norwegian territory on the date of the alleged offence,

namely the 25th September, 2008. It is however also said that whether he was in Norway or somewhere else “when the courier

crossed the border into Norway [that is on 24th September, 2008], and was to contact him via telephone at a later point in time, has

no bearing on his liability as an accomplice in Norway” (A.I. No. 2: 7/6/2012).

67. As appears from the additional information (para. 62 supra), the respondent is charged “with complicity in the import” of

prohibited substances into Norway: not into Ireland. It has never been suggested that he personally carried the drugs into that

country: rather what is alleged is that he was a central player and a key participant in the importation agreement and that he was

the intended recipient of the drugs or else that he had control over who the recipient might be. Under Norwegian law an accomplice is

not required to be present when or where the crime is committed. Consequently, the requesting country asserts competence to try

him and claims jurisdiction over him on the charge(s) as preferred against him.

68. From the evidence it is clear that Norway is not suggesting that whilst in Ireland, the respondent committed any act or engaged

in any action referable to the subject offence. Further they have never stated that they intend to prosecute him even if the offence

was committed in Ireland. Section 15 of the 1965 Act would not permit this. What they are saying however is that even if the

evidence does not establish that he was in Norway on the relevant date, they are nonetheless entitled to maintain the prosecution

against him on the charge(s) as outlined. I believe they are so entitled and that s. 15 of the Act is no bar to extradition by reason of

same.

69. The net issue on this ground of objection is whether the offence for which the respondent’s surrender is sought is regarded under

Irish law as having been committed in the State. If it is, he cannot be extradited under s. 15 of the 1965 Act.

70. What is immediately striking about the section (para. 60 supra) is its specific reference to the subject offence having been

“committed” in this jurisdiction: it therefore covers such circumstance, but no other. This means that the section is no bar to

extradition if an offence is “prosecutable” here or indeed even, if the offence is “prosecutable” in this jurisdiction. It only prohibits

extradition if the specific offence, for which extradition is sought, has been committed here. “Committed” in this sense must mean

committed “wholly” or “entirely” in Ireland. Therefore, even if elements of the offence were said to have been carried out in Ireland,

this would not be sufficient to invoke the provisions of the section.

71. The situation disclosed in this case presents a good example of why it is justified to give s. 15 of the 1965 Act the meaning which

I have ascribed to it. The offence in question is of importation: that and the related offence of “aiding and abetting” may not and

frequently is not, committed in one country. The more sophisticated criminal activity becomes, the more international its execution is

likely to be. If it was the case that extradition would have to be refused if any single element of the offence was committed in this

jurisdiction, the system of surrender would be gravely impaired and the intended objective of the legislation, significantly

compromised. These consequences would similarly follow even if the offence(s) in issue could be “prosecuted” in both here and

possibly other countries. It may be as a matter of practicality virtually impossible for example, for the Irish authorities to prosecute

Mr. Pocevicius for the offence with which he is charged. Whatever the precise reasons for such difficulties may be, this could well be

the result. Section 15 of the Act in my view was not intended to, and does not, prohibit extradition in such circumstances.

72. In any event, it is quite clear that the Norwegian authorities are not asserting against the respondent that he has committed any

act or action in this State on 25th September 2008 or, indeed, on any other date. This is acknowledged in his submissions where it is

said “neither the appellant nor the Norwegian authorities contend that he committed any such overt act”, that is an overt act within

the State. On this basis the offence, in terms of what act or action might constitute a breach of the criminal provision of the

Norwegian Code, cannot be regarded under Irish law as having been committed in this jurisdiction.

73. If this understanding of the section be correct as I believe it to be, it means that even if Mr. Pocevicius had not returned to

Norway but rather had stayed in Clonakilty at the relevant time, and had by way of electronic communication directed the courier as

to whom and to where the drugs should be delivered, so that everything he did, he did in Ireland (and in the process could properly

be prosecutable for an offence contrary to s. 20 of the Misuse of Drugs Act 1977, as amended), it still could not be said that he

committed the offence for which his extradition is requested, in Ireland. The reason is self-evident in that part of the actus reus for

which it is sought to make him liable, is the importation of drugs into Norway. Accordingly, even in such circumstances it could not be

the case that the offence was committed in Ireland for the purpose of s. 15 of the 1965 Act: it may be correctly said that it was

partly committed in this jurisdiction but that is not sufficient within the meaning of the section. Accordingly, s. 15 of the 1965 Act

does not avail the respondent.

74. Accordingly, I would reject the grounds advanced in support of this issue, No. 3.