Court of Appeal allows appeal finding failure to appear in Scotland corresponds to s.13 Criminal Justice Act 1984 offence.

THE COURT OF APPEAL

No. 2015/603

Finlay Geoghegan J.

Peart J.

Hogan J.

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT/APPLICANT

AND

PABLO TELLARINI PRIETO

APPELLANT/RESPONDENT

JUDGMENT of Ms. Finlay Geoghegan delivered on the 24th day of February 2016

1. I have had the opportunity of reading in draft the judgments of Peart J. (which sets out the relevant background facts and issues)

and that of Hogan J. I do not propose repeating more than is necessary the relevant facts or law.

2. The issues certified by the trial judge pursuant to s. 16(11) of the European Arrest Warrant Act 2003, as amended, is:

“Does the offence of failure to turn up in court in accordance with the terms of conditional release correspond to any

offence in this jurisdiction in particular to criminal contempt of court?”

3. I am in agreement for the reasons set out by Peart J. that the acts alleged to have been committed by the appellant (including the

circumstances in which they occurred) as set out in the warrant and further information supplied by the Scottish authorities in

relation to Case 1 (charge 2) in the warrant i.e. failure to appear at a procedural hearing on the 7th January, 2014, do not correspond

to the offence of criminal contempt of court in this jurisdiction.

4. The second offence considered by the trial judge and rejected is an offence under s. 13 of the Criminal Justice Act 1984. This

provides:-

“If a person who has been released on bail in criminal proceedings fails to appear before a court in accordance with his

recognisance, he shall be guilty of an offence . . .”

5. The trial judge considered in some detail the nature of a recognisance from its definition in O’Connor’s (The Irish Justice of the

Peace) (Vol. 1. 2nd Ed. 1915) as “ the acknowledgment of a debt due to the King defeasible upon the happening of a certain event,

e.g. the appearance of the party in court pursuant to the terms of the condition” to the more recent use of the term in provisions in

the Bail Act 1997 as amended. At para. 52, she ultimately concluded that the more recent amendments “did not alter the fundamental

nature of recognisance as involving a monetary commitment on behalf of an accused conditional upon the happening of a certain

event, usually a failure to turn up in court or breach of another condition”.

6. The trial judge then concluded at para. 54:

“No monetary commitment to turn up was required of this respondent in Scotland. In that sense, he did not enter into a

recognisance. In those circumstances I am satisfied that there is no correspondence with s. 13 of the Act of 1984.”

7. I am prepared to accept for the reasons set out by the trial judge and Hogan J. in his judgment for the purposes of this judgment

that a recognisance still includes the creation of a monetary bond or defeasible debt (however nominal) to the people of Ireland,

notwithstanding certain indications in the more recent legislation to the contrary.

8. Notwithstanding, I am in agreement with Peart J. that correspondence for the purposes of s.5 of the European Arrest Warrant Act

2003 as amended has been established for the following reasons.

9. In accordance with the judgment Denham J. (as she then was) in Minister for Justice, Equality and Law Reform v. Dolny [2009]

IESC 48, what the court must consider and determine is if the acts alleged are such that if committed in this jurisdiction they would

constitute an offence. As further stated by Denham J in Dolny “a court may look at all the information provided, the facts and acts

described . . .”. The trial judge put it well and succinctly at para. 60 of her judgment where she stated:-

“When considering the issue of correspondence of offences, the focus must be on a transposition of the facts as if they

occurred in this jurisdiction.”

10. The facts to be considered include those given in the European Arrest Warrant ("EAW") including the circumstances in which the

offence is alleged to have been committed and further information provided by the Scottish authority. In relation to the failure of the

appellant to appear, the relevant conduct includes that set out in the further information provided by the Scottish authorities. These

include that the appellant was charged with offences of assault and theft. He appeared before Edinburgh Sheriff Court on the 26th

April, 2013, where he accepted before the Sheriff conditions of bail which included appearing “at the appointed time at every diet

relating to the offence with which he is charged of which has given due notice . . .” and having accepted the conditions was then

released on bail. As put in the further information “his release on bail was conditional on agreeing at court in front of a Sheriff to abide

by the conditions of bail in the bail order”. If in this jurisdiction he had been charged with offences of assault and theft and brought

before a court he would only have been released on bail on his entering into a recognisance with a condition to appear at subsequent

hearings as distinct from simply agreeing before a judge to such conditions of bail.

11. In entering into a recognisance the accused agrees to the conditions stipulated and also agrees to be bound to pay the amount

of the bond in the event he fails to comply with the conditions. This is an additional element in the mechanism by which an accused

agrees to the conditions of bail in this jurisdiction as compared with Scotland.

12. However the next question appears to be whether the offence created by s.13 of the 1984 Act is dependant on the accused

having agreed to a bail condition by entering into a recognisance which created a monetary bond or defeasible debt as security for

compliance with the condition? The offence created by s. 13 of the 1984 Act does not appear dependent in any way on the

recognisance creating a monetary bond or a defeasible debt. Rather it is addressed to the condition to which an accused will have

agreed and bound himself to perform in entering into an recognisance to be present in court at the end of the period of remand or

turn up in court on any other date specified. Insofar as s. 13 of the 1984 Act creates an offence when a person released on bail in

criminal proceedings fails to appear before a court “in accordance with his recognisances” it can only mean in accordance with the

condition in his recognisance requiring him to appear before the court which he has subsequently failed to attend. The offence in this

jurisdiction is therefore a failure to appear before a court in accordance with a condition to which he has agreed by entering into his

recognisance.

13. This meaning is clear from the consideration given by Clarke J. to s. 13 of the 1984 Act in the Supreme Court in Clifford v.

Director of Public Prosecutions [2013] IESC 43 (with whom Denham C.J. and O’Donnell J. agreed) at paras. 6.2 to 6.7:-

“6.2. At the close of the prosecution case, counsel for Mr. Clifford sought a direction on the basis that there was no

evidence on which it could be found that Mr. Clifford had either entered into recognisances which required him to attend

court on the 31st July, 2006, or that Mr. Clifford had not attended court on that date. It is, of course, clear that both of

those facts are essential to proving an offence under s. 13 of the Criminal Justice Act 1984, as amended by s. 23 of the

Criminal Justice Act 2007.

6.3. That section, as amended, provides as follows:

'(1) If a person who has been released on bail in criminal proceedings fails to appear before a court in accordance

with his recognisance, he shall be guilty of an offence and shall be liable on summary conviction to a fine not

exceeding €5,000 or to imprisonment for a term not exceeding twelve months or to both.'

6.4. It seems clear that the legislative intent in enacting the section was to ensure that there might, in an appropriate

case, be an additional penalty imposed on those who failed to answer bail. The position which pertained up to that time

was that, on a failure to answer bail, a bench warrant could be issued thus permitting the relevant person to be arrested

and brought before the court. Depending on the circumstances, the court might remand the accused further either on bail

(most likely because some reasonable explanation for failure to attend was tendered) or in custody (if the court was not

satisfied that any reason tendered for failure to attend was legitimate and became sufficiently concerned about the risk

of the accused concerned not attending for his trial). Either way no additional sanction was imposed on the accused. The

purpose of s. 13 was to allow for an additional sanction above and beyond the accused being arrested and brought before

the court to allow the process in respect of which he was originally charged and bailed to continue.

6.5. Be that as it may, the real question which arises here is as to the sort of evidence which must be tendered by the

prosecution to establish both the fact of the accused having been bailed to attend on a particular date and the fact that

the accused failed to attend on the date in question. Once those facts are established it becomes a matter for the

accused to put forward any explanation for failure to attend such as might satisfy the court not to convict.

6.6. . . .

6.7. Clearly, in order for the District Judge to have issued the bench warrant concerned, the District Judge would have

been required to have been satisfied that the accused (in this case Mr. Clifford) had entered into recognisances to attend

on the occasion in question and was not present in court to answer his bail. Those are the same factual elements as

underly an offence under s. 13.”

14. As appear from the above the essential ingredient of the offence under s. 13 is that an accused was granted bail on entering into

a recognisance with a condition to attend on the occasion in question. It is the proof that the terms upon which the accused was

admitted to bail included a condition to which he had agreed (by entering into his recognisance) to turn up on a specified date rather

than the nature of a recognisance or the creation of a defeasible debt or monetary bond which is an essential proof when it is alleged

an offence is committed under s. 13 of the 1984 Act.

15. Notwithstanding that the mechanism or procedure by which an accused in Ireland agrees to conditions of bail i.e by entering into

a recognisance differs from that in Scotland and may still have the additional element of creating a monetary bond or defeasible debt

that difference does not appear to me to preclude correspondence for the purposes of s.5 of the Act of 2003 when construed in a

context of giving effect to Article 2.4 of the Council Framework Decision (2002/584/JHA). The offence in s.13 of the Act of 1984 is of

course described by reference to a “recognisance” as that is the manner in which an accused agrees to bail conditions in this

jurisdiction but for the reasons explained the essential ingredient of the s.13 offence in a failure to turn up in breach of a condition to

which the accused agreed when granted bail.

16. The acts relevant to the conduct of the appellant in Scotland included in the EAW and further information establish that the

appellant was released on bail on conditions to which he agreed before a court and that he failed to appear at a hearing in

accordance with one of the conditions to which he had agreed. I am aware and have taken into account that those facts go beyond

the necessary proofs for the offence with which he is charged in Scotland but the ingredients of the two offences is not the relevant

test as set out above.

17. Hence in my view the conduct of the appellant and circumstances relevant to the offence with which he is charged of failing to

appear at a procedural hearing on the 7th January, 2014, in Edinburgh as set out in the EAW and further information are such that if

transposed to this jurisdiction they would constitute an offence under s. 13 of the Act of 1984 and accordingly correspondence is

established.