Judgments Of the Supreme Court


Judgment
Title:
Minister for Justice Equality and Law Reform -v- Tighe
Neutral Citation:
[2010]IESC 61
Supreme Court Record Number:
20/09
High Court Record Number:
2008 48 EXT
Date of Delivery:
12/21/2010
Court:
Supreme Court
Composition of Court:
Murray C.J., Denham J., Hardiman J.
Judgment by:
Hardiman J.
Status:
Approved
Result:
Allow Appeal
Judgments by
Link to Judgment
Concurring
Hardiman J.
Murray C.J., Denham J.



THE SUPREME COURT

Murray C.J. 20/09
Denham J.
Hardiman J.



THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
Applicant/Respondent
and
JAMES ANTHONY TIGHE
Appellant
JUDGMENT of Mr. Justice Hardiman delivered the 21st day of December, 2010.
This is a European Arrest Warrant case. The surrender of the appellant is sought so that he can be prosecuted in the United Kingdom for four offences (“the extradition offences”) specified in a European Arrest Warrant which was issued in respect of the appellant by a District Judge (Magistrates Courts) in the United Kingdom on the 7th day of March, 2008.

This European Arrest Warrant was endorsed for execution in this jurisdiction on the 12th March, 2008, and the appellant was arrested on foot of it on the 3rd April, 2008, and brought before the High Court as required by s.13 of the European Arrest Warrant Act, 2003, as amended.

The offences.
The offences to which this warrant relates are unusual ones, at least to an Irish lawyer, and, as will transpire, they are somewhat arcane. They are as follows:
“(1) Tax Fraud.
      Conspiracy to cheat the Public Revenue contrary to s.1(1) of the Criminal Law Act, 1977.

      Particular of offence.

      Between 1 January 1997 and 31 December 2005, with intent to defraud and to the prejudice of the Commissioners of Inland Revenue and Customs and Excise conspired together with others to cheat the Public Revenue by dishonestly submitting false 715, CIS 24 and CIS 25 vouchers issued pursuant to Inland Revenue Construction Industry Schemes.
(2) Tax Fraud.

      Conspiracy to cheat the Public Revenue contrary to s.1(1) of the Criminal Law Act, 1977.

      Particulars of offence.

      Between 1 January 1997 and 31 December 2005, with intent to defraud and to the prejudice of the Commissioners of Inland Revenue and Customs and Excise conspired together with others to cheat the Public Revenue by reducing the taxable profits of Companies by dishonestly pretending that payments had properly been made to third parties for work purportedly carried out or services purportedly provided.

(3) Tax Fraud.
      Cheating the Public Revenue contrary to Common Law.

      Particulars of offence.

      Between 1 January 1997 and 31 December 2005, cheated the Public Revenue by failing to disclose his income to the Inland Revenue.


(4) Money Laundering.
      Conspiracy to enter into or otherwise be concerned in arrangements to facilitate the retention or control of the proceeds of crime of others contrary to s.1(1) of the Criminal Law Act, 1977.

      Particulars of offence.

      Between 1 January 1997 and 31 December 2005, conspired together with others to enter into or otherwise be concerned in arrangements whereby the retention or control of proceeds of criminal conduct of others was facilitated, knowing that those others were engaged in criminal conduct, namely cheating the Public Revenue.”

In the Arrest Warrant it is certified that the maximum length of the custodial sentence available for the offence of cheating the Public Revenue is imprisonment for life and that, in practice, these offences, if involving large sums of money and deliberate conduct, result in sentences “approaching” fifteen years imprisonment. The offence of money laundering has a maximum sentence of fourteen years imprisonment.

Although the person supplying the information as to length of sentences does not appear to have noticed that three of the four charges relate to conspiracy rather than to a substantive offence, it appears that the offence of conspiracy to commit an offence, being a Common Law offence, carries a maximum sentence of life imprisonment, even if the sentence for the substantive offence is much less.

It is plain, therefore, that the offences in respect of which the Court has been invited forcibly to deliver the appellant out of the jurisdiction are extremely serious ones, whether viewed from the point of view of the Court, the appellant or that of the prosecutor. It is therefore all the more surprising that little care appears to have been devoted to the drafting of the European Arrest Warrant or, it must be said, to its scrutiny in this jurisdiction.

Relevant Law.
It is notorious that the law relating to the arrangements for the forcible delivery of a person out of this jurisdiction and therefore out of the protective jurisdiction of this Court, has been greatly changed by the European Arrest Warrants Act, 2003, giving effect in this jurisdiction to the “Framework Decision on the European Arrest Warrant and surrender procedure”.

This in itself is a very remarkable document. Its recitals suggest that it is the product of a long methodical process of action upon the Tampere Conclusions of 1999. But its history shows that it was in fact agreed in principle in the period of ten days immediately after the notorious terrorist outrage in New York on the 11th September, 2001. Just as strikingly the proposals which were being worked on prior to that epochal event related to terrorist crimes only but, in a period of time so short as to allow for very little, if any, consultation, it was decided to extend their effects to a very wide swathe of “ordinary” crimes. But this is history. The fact is that effect has been given to the said Framework Document by the Act of 2003.
Relevant statutory features.
Due to the narrow focus of this case it is unnecessary to discuss the Act of 2003 in general. It is sufficient to quote certain authoritative passages from the judgment of this Court in The Minister for Justice, Equality and Law Reform v. Ivans Desjatnikovs [2009] 1 IR 618. At para. 9 in this judgment, under the heading “Form of the European Arrest Warrant”, Denham J. says:
          “Section 11(1) of the Act of 2003 mandates that the European arrest warrant shall insofar as it is practicable be in the forms set out in the annex to the Framework Decision, and shall specify matters as set out therein. This includes, for example, the name and nationality of the person in respect of whom the European arrest warrant is issued. As to the offence, the requirement is to specify the offence to which the European arrest warrant relates, including the nature and classification under the law of the issuing state of the offence concerned. It is also required to specify the circumstances in which it is alleged that the offence took place, including the time and place and degree of involvement. The penalties are required to be stated, inter alia. Thus a significant amount of detail is required.”

At para. 11 of the judgment Denham J. set out certain options as follows:
          “In this case three options are considered as methods by which an offence may be identified as permitting the surrender of a person on a European arrest warrant. These options are:

          (a) a corresponding offence;

          (b) an offence on the list in article 2.2 of the Framework Decision, in paragraph (e) of the warrant, which is ticked in the appropriate box; and

          (c) it is submitted that, there being no box ticked on the list, the executing judicial authority in the requested State may, on the facts set out in the warrant hold that the offence is one specified on the list. I shall consider these three options separately.”

To anticipate, the Supreme Court held in that case that only the first two options had been created by the Act of 2003, so that it is unnecessary for us to consider any further the “third option”, for which the State had contended. In the concluding section of the judgment of Desjatnikovs at para. 69 Denham J. said:
          “The Framework Decision and the Act of 2003 have introduced a novel system. Firstly, the concept of double criminality, a corresponding offence, may be applied. This is the basis upon which extradition has proceeded for many years and is not a new concept. However, secondly, the concept of a list of offences, where double criminality need not be found, is an entirely new system agreed by the member states in Article 2.2. of the Framework Decision and transposed into our law by the Act of 2003. If the offence is identified by the issuing state then the matter comes within this new legal scheme.”

This authoritative citation may be put into context as follows. Ever since systems of extradition have existed, States generally required that the offence in respect of which extradition was sought should be a crime both in the requesting State and in the requested State. They did not require that the crime should be called by the same name, or defined in the same way, or that the penalty be the same, but simply that the actions alleged should constitute criminal offences in both jurisdictions. This was known as the “principle of double criminality”. Offences having this quality were said to “correspond”.

At some point immediately after 9/11, the States which became party to the Framework Decision agreed, or were deemed to have agreed, that this requirement should no longer be necessary in the European Arrest Warrant area. They did not, however, go so far as to say that one could be forcibly delivered from one State within this area to another simply on the basis that the actions were criminal in the requesting State. Instead, they set out a list, replicated below, and provided that there could be forcible delivery in respect of conduct, criminal in the requesting State at least, which corresponded to some entry on the list. Some of these are very specific, such as the seizure of ships or aircraft, but some are extremely vague. In the present case it was submitted on behalf of the State that the matters listed are couched, not in legal language, but in “political language”, and do not constitute a list of offences but rather a list of types of conduct. Accordingly, the “double criminality” requirement may be avoided by a requesting State by “ticking” one or more of the entries on the list and establishing that the conduct alleged against the requested person meets that description.
The list referred to in the Framework Decision is as follows, in the form it takes in the European Arrest Warrant in this case:
    participation in a criminal organisation;
    terrorism;
    trafficking in human beings;
    sexual exploitation of children and child pornography;
    illicit trafficking in narcotic drugs and psychotropic substances;
    illicit trafficking in weapons, munitions and explosives;
    corruption;
X fraud, including the 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;

X laundering of the proceeds of crime;
    counterfeiting of currency, including 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.”

Central Point of Fact.
Against that background, it is necessary to look at what is said, or certified, in the European Arrest Warrant in the present case.

This European Arrest Warrant.
At p.2, para. (e) the warrant is said to relate to four offences in total, being the four set out above. On the following page the following certification is made:
          “It is hereby certified pursuant to s.142(6) of the Extradition Act, 2003 that:

          (a) the conduct constituting the extradition offences specified in the warrant falls within the European framework list;

          (b) the offence is not an extraterritorial offence;

          (c) [irrelevant].”

It will thus be seen that the issuing authority, or those on whose application it issued the warrant, is not seeking to rely in the warrant on the principle of dual criminality but is certifying that the “extradition offences” are within the list referred to as the “European Framework List” and described in the preceding section of this judgment.

It should be noted that the page numbers quoted are those of the Warrant as presented to this Court. The European Arrest Warrant itself is unpaginated in its printed form.

The list itself is set out at p.5, para. 1 of the warrant: the two offences “ticked” are, firstly “Fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of the 26th July, 1995 on the European Communities Financial Interests”. And, secondly, “Laundering of the proceeds of Crime”.

Since the present case does not feature any connection with the financial interests of the European Communities, the first category relied upon is simply “Fraud”.

Next, however, there occurs a very major inconsistency in the warrant. At p. 6, at a paragraph which I think is marked II, (though it is not very easily legible, but which occurs immediately under the setting out of the “European Framework List”), the following occurs:
“(11) Full descriptions of offence(s) NOT covered by Section I above.


CONSPIRACY

Section 1(1) of the Criminal Law Act, 1977,

Section 1 - Conspiracy; the offence,

Paragraph 1(1)

Subject to the following provisions of this part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intention either -

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

(b) would do so but for the existence of facts which render the commission of the offences impossible,
      he is guilty of conspiracy to commit the offence or offences in question.”

A major conflict.
The foregoing extracts from the warrant manifest a very serious internal conflict within that important document. First, it is certified, pursuant to a United Kingdom statute, that all of the extradition offences are “within the European Framework List”. That list is set out at p.5, para. (1) of the warrant. Immediately after that list it is stated, citing an English statute, that the offence of conspiracy is NOT within the list. But three of the four offences in respect of which the forcible delivery of Mr. Tighe is sought are offences of conspiracy. There is nothing in the warrant aimed at establishing dual criminality in respect of these three offences and, having regard to the decision of this Court in
Attorney General v. Hilton [2005] 2 IR 374, it appears that no such dual criminality could in any event be established in terms of Irish Law.

In that case this Court decided that an analysis of the alleged Common Law offence of cheating the Revenue is such “as to lead to the only possible conclusion, being that no Irish Common Law offence of cheating the Public Revenue, however admirable such a law might be, exists”.

Accordingly, in terms of the warrant itself, the offence of conspiracy to commit the offence specified is not an offence within the “European Framework List”. Neither is it a corresponding offence to any offence in Ireland.

It appears to me that this very grave difficulty has arisen because the drafters of the warrant, presumably the prosecuting solicitors to the Inland Revenue, failed to distinguish between the completed offence of cheating the Revenue, which might or might not be capable of description as “fraud”, on the one hand, and the offence of conspiracy to cheat the Revenue which, as the warrant itself proclaims, is not within the framework list. Notwithstanding this, the warrant earlier contains a certificate that all of the offences were on the list.

The High Court Decision.
At p.6 of the judgment of the learned trial judge delivered the 28th January, 2009, he recorded:
          “The issuing judicial authority in paragraph E(i) of the warrant has marked “fraud” and “money laundering” in the boxes provided for categories of offence coming within Article 2.2 of the Framework Decision. This indicates that offence 3 (cheating the public revenue) is an offence in respect of which double criminality does not require verification, and that the offences behind the three conspiracy offences (fraud and money laundering) are offences coming within Article 2 of the Framework Decision. In paragraph E(ii) of the warrant, the issuing authority has indicated that the offence of conspiracy is not covered by the marking of the boxes referred to. [Therefore] correspondence must be established in that regard. It is provided in that paragraph that under U.K. law conspiracy to commit an offence is provided for by s.1(1) of the Criminal Law Act, 1977, and the text of the Section is set forth.

          There is no such equivalent provision in this jurisdiction, but the existence of the common law offence of conspiracy here is sufficient to satisfy correspondence for conspiracy”.

I cannot, with all respect, agree with this last conclusion of the learned trial judge. Conspiracy is legally classified as an inchoate offence of which there are only three: conspiracy, attempt and incitement. The word “conspiracy” itself simply means “agreement”, though with a connotation of an agreement to do something which the speaker regards as nefarious or unlawful or at least disapproves of. It can be seen from the particulars of offence in this case that the actus reus of conspiracy is described as being a specified conspiracy or agreement with others. But neither an agreement, nor an attempt, nor indeed an incitement, are criminal in themselves, whether at common law or otherwise. As Charleton J. et al remark in their “Criminal Law”, p.296:
          “There was no general offence of conspiracy at Common Law”.

The relevance of the foregoing remarks arises from what the learned trial judge next said on the topic of conspiracy, at p.7 of his judgment:
          “Secondly, in relation to the conspiracy charges, it is necessary to show that in this State conspiracy to commit an offence (which itself is an offence here) is an offence under the law of the State. That requirement is satisfied by the existence here of the offence of conspiracy contrary to Common Law. In the case of conspiracy, it is necessary in addition either to establish correspondence in relation to the underlying offences or that those offences are offences within Article 2.2 of the Framework Decision. The latter has occurred in this case.”

I repeat that conspiracy is not in itself an offence: it is criminal only in the context of an agreement to commit a specific unlawful act or (perhaps) a lawful act by an unlawful means. Following the Supreme Court judgment in Hilton cited above, it is clear that there is no offence in Ireland of conspiracy to cheat the Revenue. This is for the reasons set out in that judgment and in particular (at p.380):
          “At the core of the Common Law offence in England is the concept of depriving the Crown. The offences cited in the warrant in this case refer to the Crown thus ‘at the expense of the Crown’, ‘of defrauding the Crown of monies’, ‘failing to make Crown debts’, ‘to the detriment of the Crown’ and thus cheated the Public Revenue. This relationship to the Crown is a relevant factor.”

And, at p.381:
          “Considering the factors set out above, the situation in Ireland as to an offence of cheating the Public Revenue is vague and unclear. It appears to have fallen into obsolescence. The reference to the effect of cheating the Public Revenue in the Act of 2001 is not so precise as to create an offence, an offence which may have ceased to exist prior to the Statute. The offence was not utilised in prosecutions over the last 100 years. Nor has it been the subject of academic analysis. Consequently, its constituent parts are not clear. This is a critical factor.

          In Criminal Law the constituent parts of an offence should be clear. The law must be certain. If there is ambiguity, it is rendered to the advantage of an accused. It is a fundamental principle that the Criminal Law must be clear and certain. The constituents of an offence must be clear and certain. The possibility that such an offence exists in our Common Law is insufficient clarity of the situation. The ambiguity as to its constituent parts is relevant. These are most relevant factors…

          It has been the practice that offences of this type have been prosecuted by way of statutory offences. This is the modern practice. This is a relevant factor.”

I would respectfully adopt the foregoing observations of Denham J. cited above from Hilton.

Moreover, the parameters of the offence of cheating the Public Revenue in the United Kingdom itself are notably vague and obscure. In this country, of course, it is a constitutional imperative that the definitions of a crime be sufficiently precise and certain: see
DPP v. Cagney and McGrath [2008] 2 I.R. III, which referred to a very broadly drafted statutory offence, Reckless Endangerment.
In that case, the Court said, at p.34:
          “From a legal and constitutional point of view, it is of fundamental value that a citizen should know, or at least be able to find out, with some considerable measure of certainty, what precisely is prohibited and what is lawful. Thus in Attorney General v. Cunningham [1932] IR 28 O’Byrne J. said at p.32 in the Court of Criminal Appeal:
          ‘The offence as charged in the indictment is one of maliciously firing into the dwelling house of one William O’Donoghue and it seems to us that the proper question for our determination is whether that is, at Common Law, an indictable offence. In considering that question the Court must have regard to the fundamental doctrine recognised in these courts that the criminal law must be certain and specific, and that no person is to be punished unless he has been convicted of an offence recognised by law as a crime and punishable as such’. [35]

          Equally in King v. The Attorney General [1981] IR 233 Kenny J. said, at p.263:

          ‘It is a fundamental feature of our system of government by law (not by decree or diktat) that citizens may be convicted only of offences which have been specified with precision by the judges who made the common law, or of offences which, created by statute, are expressed without ambiguity… in my opinion both governing phrases, “a suspected person” and “reputed thief” are so uncertain that they cannot form the foundation for a criminal offence’.”

It may indeed be relevant to quote a passage appearing later in Cagney judgment, at p.37. There it is said that considerations relating to the need for certainty and clarity in criminal statutes or law:
          “… make it undesirable that so vague and open ended a section should be used in circumstances such as those of the present case where the actions of applicants as alleged by the prosecution would clearly constitute and established and recognised criminal offence viz assault in one or other of its variance. In those circumstances, in my view, it is desirable that the obvious offence should be charged.”

There are, of course, both in Ireland and in the United Kingdom specific statutory offences relating to the Income Tax code, including an offence of not making a return of income if one is obliged to do so. It may be that the extremely severe penalty said to be available at Common Law is a great attraction to prosecutors.

I have gained much from a reading of an illuminating article “Cheating the Public Revenue” by David Ormerod in [1998]
Criminal Law Review, I. The author is now Professor of Criminal Justice in Queen Mary College, University of London.

Under the heading “The Scope of the Offence”, the learned author says:
          “It is essential to the proper administration of the Criminal Law that it is capable of being known by all citizens subject to its jurisdiction. With most criminal offences it is possible to identify a clear source, whether a statute or decided case, which provides an accepted definition of the offence. The definition of cheating is less clear than many offences, in part owing to the heavy reliance, even in relatively modern cases, on the ancient definitions of the offence.”

The truth of Professor Ormerod’s observation is justified by a reading of the reasonably modern cases cited. Thus, R.v. Hudson [1956] QBD 252, a case often cited for the proposition that the offence of cheating the Revenue continues to exist, takes as its starting point the case of R.v. Bembridge [1783] 22 State Trials I, and also refers to East’s Pleas of the Crown, [1803] and Hawkins Pleas of the Crown, which went through eight editions, between 1716 and 1824. The learned and redoubtable Lord Goddard LCJ adopted the following approach:
          “Are there any cases where it is decided that the propositions of Hawkins and East are no longer good law? If it is still good law that cheating the public is indictable, then caedit questio.”

However, very relevantly to the present discussion, even Lord Goddard stopped short of the lengths to which the Common Law of England has been taken in more recent times. In the next sentence after that quoted above he said:
          “The proposition that all transactions which defraud the Crown are indictable is too wide.”

The Common Law conception of cheat required some form of fraud or deceit: to quote the above cited Hawkins, cheating was
“… deceitful practices, in defrauding or endeavouring to defraud another of his own right by means of some artful device, contrary to the plain rules of common honesty”. Equally, the ordinary meaning of the word cheat, as it appears from the Concise Oxford Dictionary entry quoted in Charleton is “deceive or to trick a person into or out of a thing”.

But in the case of R.v. Mavji [1987] WLR 1388 the Court of Appeal in England held that the offence could be committed by omission and did not require a positive act of deceit or misrepresentation. This is a major, and recent, extension of the scope of the offence.

The Mavji formulation clearly contradicts Lord Goddard’s observation that it is too much to say that “all transactions which defraud the Crown” are criminal. It would appear, therefore, that the Common Law of England has changed significantly in this regard between 1956 and 1987. Bearing in mind the decision of this Court in Hilton, this is a further reason to conclude that there is no basis whatever for saying that the Common Law offence of cheating the Public Revenue as it is found in England (and, as far as I am aware, only in England) has any equivalent whatever in Ireland.
It thus appears that, though the Common Law offence
is still extant in the U.K. and indeed is said in the old books to have existed since the 14th century and perhaps before, it is still capable of evolution and has in fact evolved, uniformly in a manner favourable to the Crown and unfavourable to the individual. These transformations are all very significant, and a court in 1987 went markedly further, in relation to the conduct captured by the offence, than a great if somewhat uncompromising exponent of the Common Law had felt able to go thirty years earlier. Accordingly, this “cheating the Public Revenue” does not seem to me to be an offence which would meet the requirements, which exist in Ireland, that an alleged criminal offence should be certain and specific in its definition.

In light of the foregoing, it is perhaps unsurprising that Professor Ormerod ends his learned article by recommending the abolition of the offence in the United Kingdom. He says:
          “There has been considerable pressure to abolish the Common Law offences which still exist in English law. The arguments usually on the absence of a maximum sentence, the breadth of the offences, and the existence of specific statutory prohibitions which criminalise the conduct in question. All of these points apply to cheating, and create at least as compelling an argument for reform as in the case of conspiracy to defraud. The abolition of cheating is long overdue. It satisfies neither the Revenue lawyers keen desire for certainty (preferably in a statutory form) nor the Criminal lawyers desire for maximum certainty in the Criminal law.”
But this, of course, can be of academic interest only in Ireland.

___________________________________________________________

However, in considering three of the four offences in question here, it may not be necessary to debate the question of correspondence, because correspondence is not relied upon in the warrant. On the contrary, it is certified that these three offences are within the list of criminal conduct in the Framework Decision and then, later in the warrant, that they are not. In my view it is uniquely for the issuing State to say whether and if so where in the list of actions set out in the Framework Decision the offence for which they want to put a person on trial is to be found. The decision to charge conspiracy in this case was that of the United Kingdom Revenue Authorities and both the conflicting certifications, that conspiracy is/is not an offence within the Framework Document list, is also of their making.

I would decline to order the delivery of the applicant on these charges.



The fourth charge.
The fourth charge, described at reference 3 in the list set out above, is that of “Cheating the Public Revenue contrary to Common Law”.

By virtue of s.11 of the Act of 2003 as substituted by s.72 of The Criminal Justice (Terrorist Offences) Act, 2005, a European Arrest Warrant must set out:
“The circumstance in which the offence was committed or was alleged to have been committed including the time and place of its commission or alleged commission and the degree of involvement… of the person in the commission of the offence”.


In relation to this offence, the only particulars given are that the appellant “between 1 January 1997 and 31 December 2005 cheated the Public Revenue by failing to disclose his income to the Inland Revenue”.

In this case, the warrant does not at all specify the circumstances in which this offence is alleged to have been committed. The contents of the warrant insofar as this offence is concerned, is found at the end of p.4 and the beginning of p.5 and consist entirely of a number of statements of law. There is no statement whatever specific to the accused in respect of this offence. Remarkably, it is not even asserted that he was obliged to disclose his income to the United Kingdom Revenue Commissioners, in the first place.

Unlike the other offences this is a charge of a substantive, rather than an inchoate, offence. Whether an offence corresponds to an offence in Ireland depends on whether the acts constituting the offence, as disclosed in the warrant or associated material, correspond to an offence in this country. This charge is one which has been held not to exist as, or correspond to, an offence in Ireland (see Hilton above). The particulars given in the warrant are entirely silent on any question of fraud, or any specific deception or misrepresentation. The entirely negative offence of failing to make a disclosure of one’s income does not fit at all obviously within any of the headings in the Framework Document, and certainly not either of the two headings which have been ticked. “Fraud” is not specified as an ingredient of the offence (presumably, as we have seen above, because the U.K. Courts have held that fraud is unnecessary to constitute it) and no information as to the “circumstances” of the offence are given which would allow one to conclude either that it corresponds to any other offence actually existing in Ireland or that it is within the conduct described in the Framework Document list.


Conclusion.
I would refuse to order the delivery of the appellant on foot of the arrest warrant in this case.








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