Supreme Court dismisses appeal on surrender to France, ruling s.44 EAW Act 2003 inapplicable due to lack of territorial nexus.

THE SUPREME COURT

Appeal No. 51/2014

Denham C.J.

Murray J.

O’Donnell J.

McKechnie J.

Dunne J.

Between/

Minister for Justice and Equality

Applicant/Respondent

and

Trust Egharevba

Respondent/Appellant

Judgment delivered on the 25th day of June, 2015, by Denham C.J.

1. This is an appeal by Trust Egharevba, the appellant/respondent, referred to as “the appellant”, from the judgment and order of the

High Court (Edwards J.) dated the 24th January, 2014, whereby it was ordered that the appellant be surrendered to the Republic of

France.

2. The appellant is the subject of a European arrest warrant issued by the Republic of France, on the 11th July, 2013. The warrant

was endorsed by the High Court for execution in this jurisdiction on the 16th July, 2013, and was executed on the 26th July, 2013.

The appellant was arrested by Sergeant K. on that date, following which she was brought to the High Court. The appellant was

remanded on bail pending the hearing of the application.

3. The sole point of objection proceeded with in the High Court was a Part 3 objection in which the appellant invoked s. 44 of the Act

of 2003.

4. The High Court held that where, with respect to both of the offences to which the European arrest warrant relates, the

respondent has not been able to demonstrate the existence of “the two conjunctive requirements” that are required to be established

for a valid invocation of s. 44 of the Act of 2003, the Court must decline to uphold the s. 44 objections raised in the case. Thus, the

High Court made an order of surrender pursuant to s. 16(1) of the Act of 2003.

5. The appellant has appealed to this Court, on three questions as certified by the learned trial judge as points of law of exceptional

public importance, being:-

“(i) Does the allegation that an offence of ‘laundering, as an organised criminal gang’, which is alleged to have taken place

‘on French national territory and on an indivisible basis in Nigeria and Ireland’, that is to say, a trans-national offence, fall

outside the scope of the first part of section 44 of the European Arrest Warrant Act, 2003, such that it is not an offence

which took place ‘in a place other than the issuing state’?

(ii) Is the hypothetical act of laundering in France by a French citizen the proceeds of a criminal organisation’s activities

in Ireland amount to an offence contrary to section 72 of the Criminal Justice Act, 2006, in circumstances where section

74 of the Criminal Justice Act, 2006 as amended by section 11 of the Criminal Justice (Amendment) Act, 2009 treats acts

performed outside the State as being capable of being prosecuted by the State if done on board an Irish ship or aircraft

or is done by an Irish citizen or a body corporate established in Ireland?

(iii) In the hypothetical act of conspiracy, where the subject offence is money laundering, does the allegation that funds

originated in Ireland and were transferred to France, where they were then allegedly received and transmitted onwards,

constitute an offence, the subject of which was committed in the State or against a citizen of Ireland?

6. Section 44 of the European Arrest Warrant Act, 2003, as amended, referred to as “the Act of 2003, as amended”, provides:-

“A person shall not be surrendered under this Act if the offence specified in the European arrest warrant issued in respect

of him or her was committed or is alleged to have been committed in a place other than the issuing state and the act or

omission of which the offence consists does not, by virtue of having been committed in a place other than the State,

constitute an offence under the law of the State.”

7. The Court has considered the meaning of s. 44 of the Act of 2003 in Minister for Justice, Equality and Law Reform v. Bailey [2012]

IESC 16 (Unreported, Supreme Court, 1st March, 2012).

8. In Bailey I analysed s. 44 of the Act of 2003, as amended, and the Framework Decision, and held:-

“19. The Framework Decision provided grounds for optional non-execution of a warrant. It states in Article 4 that the

executing judicial authority may refuse to execute the warrant in a number of circumstances, including, in paragraph 7:-

‘4.7: where the European arrest warrant relates to offences which:

(a) are regarded by the law of the executing Member State as having been committed in whole or in part in the

territory of the executing Member State or in a place treated as such;

or

(b) have been committed outside the territory of the issuing Member State and the law of the executing Member

State does not allow prosecution for the same offences when committed outside its territory.’

20. The Framework Decision thus provides two options in Article 4.7 for non execution of a warrant. The choice of

applying the options was made by the Oireachtas.

21. In Ireland, the initiating legislation was the Act of 2003. Article 4.7(a) [of the Framework Decision] was ultimately not

incorporated as part of Irish legislation, and thus it is not an option open to the Court.

22. The option described in Article 4.7.b of the Framework Decision was implemented by the legislature in the provisions of

s. 44 of the Act of 2003, which has not been amended in any later legislation and which retains the same wording since

its enactment.

23. It appears to me that the words of s. 44 are clear: a person shall not be surrendered if two specific conditions are

satisfied. The first part of the section states that:-

“A person shall not be surrendered under this Act if the offence specified in the European Arrest Warrant in respect

of him or her was committed in a place other than the issuing State …”

The first of these conditions is that the offence was committed or alleged to have been committed in a place other than

the issuing State. In this case the offence of murder of Mme. Toscan du Plantier took place in Ireland and thus outside

the issuing State, which is France. Therefore, the first condition is met. However, this finding is insufficient to prohibit

surrender under s. 44 of the Act of 2003 and it is necessary to consider the balance of the section, the second condition.

24. This first issue therefore turns on the meaning of the words in the balance of s. 44, which sets the second condition

as:-

“and the act or omission of which the offence consists does not, by virtue of having been committed in a place

other than the State, constitute an offence under the law of the State”.

It is helpful to read the third phrase before the second, in construing the meaning of the section. This would thus be:

“and the act or omission of which the offence consists does not, constitute an offence under the law of the State,

by virtue of having been committed in a place other than the State”.

These are clear words and so may be considered and applied literally. The section prohibits the surrender of a person

where the act of which the offence consists does not constitute an offence in Ireland by virtue of having been

committed, i.e. because it was committed, in a place other than Ireland.

25. The terms of s. 44 are an option, exercised by Ireland, grounded on Article 4.7.b. of the Framework Decision.”

9. Thus, the first question on this appeal is whether the facts of this case meet the first part of s. 44 of the Act of 2003, as

amended, being:-

“A person shall not be surrendered under this Act if the offence specified in the European arrest warrant issued in respect

of him or her was committed or is alleged to have been committee in a place other than the issuing State …”

10. The appellant is sought in the European arrest warrant for two offences:-

• laundering, as an organised criminal gang, by investment, concealment or conversion, of the proceeds of the

crimes of procuring and/or of living off immoral earnings, committed as an organised criminal gang, and of trafficking

in human beings, committed as an organised criminal gang;

• criminal conspiracy for the purposes of preparing to commit the crimes of procuring and/or of living off immoral

earnings, committed as an organised criminal gang and of trafficking in human beings, committed as an organised

criminal gang.

11. The factual description of the offences were stated in the warrant as:-

“Following several complaints made by Nigerian prostitutes regarding the acts of violence committed against them, they

brought to the attention of the judicial authorities that they had been taken to Italy, then to France and had afterwards

been forced into prostitution in order to repay an imaginary debt in the amount of 50,000 Euros.

Investigations revealed that several procuresses known by the name 'Mama' participated in networks transporting young

Nigerian women for the purposes of forcing them into a life of prostitution in France and notably in Grenoble (Isere,

France).

Financial analyses revealed that the funds handed over by the victims, from which the 'Mamas' benefited and which were

in the amounts representing several tens of thousands of Euros, transited via [T.E.'s] bank accounts in Ireland before

being transferred to Nigeria. The procuresses asked her to carry out the transfers of funds by Western Union Money

Order. By knowingly receiving on a very regular basis the sums gathered in this way by the procuresses so as to send

those funds to Nigeria by means of a financial arrangement of her own devising, [T.E.] permitted the conversion of the

proceeds of acts of procuring. By engaging in such collections of funds she herself is also a part of a highly structured

organization (sic) committing acts of procuring. The offences of which she is accused were committed in Grenoble, (Isere,

France), on French national territory and on an indivisible basis in Nigeria and in Ireland, between 1st April 2008 and 14th

March 2011, and at all events within a time period to which the Statute of Limitations does not yet apply. ˮ

12. Thus, the first issue was whether the offences were committed or alleged to have been committed in a place other than the

issuing State, France.

13. The High Court held:-

“In this Court's view the respondent faces a difficulty in satisfying condition number one, in as much as the description of

the circumstances in which the offence is alleged to have been committed which is contained with Part E of the warrant

states:

‘The offences of which she is accused were committed in Grenoble, (Isere, France) on French national territory and on an

indivisible basis in Nigeria and in Ireland’

[…]

In the present case the relevant feature is that the essence of the offending conduct is being a participant in an

organised group that was engaged in money laundering activities (of which there were many), just some of which took

place in France. These activities were perpetrated on behalf of the group by different members of the group at different

times, in circumstances where the law of the issuing state allows all members of the group to be held jointly responsible

for all of those activities.

In those circumstances the act of one participant committed in France can be regarded as the act of all of the

participants. It is alleged in this case that monies, the proceeds of prostitution and people trafficking, were collected in

France by R.O. and transferred to a bank account held in Ireland by the respondent. The issuing state is attributing those

actions of R.O. to the respondent because both parties are said to have been participants in the organised group which

this activity was intended to benefit, and that is sufficient to ground the laundering charge preferred against the

respondent as having occurred within the territory of France.

[…]

It seems to the Court that, for the reasons outline above, the respondent cannot establish that condition number one is

satisfied with respect to the laundering offence.”

14. I would affirm the determination of the learned High Court judge on this issue.

15. The requirements set out in s. 44 of the Act of 2003, as amended, are conjunctive. Thus, both conditions are required to be met

for the appellant to succeed.

16. As I am satisfied that the appellant does not satisfy the first requirement of s. 44, and as the two requirements of the section are

conjunctive, the appellant does not meet the conditions set out in s. 44. Thus, the answer to the first question is that s. 44 is not

applicable.

17. This answer is sufficient to meet the appeal. Consequently, I would dismiss the appeal and affirm the order of the High Court that

the appellant be surrendered to the issuing State, the Republic of France.

18. This Court does not answer hypothetical cases, except in the special jurisdiction arising under Article 26 of the Constitution.

Thus, the Court does not address questions 2 and 3 as certified.