|Attorney General -v- Lee|
| IESC 68|
Supreme Court Record Number:
Court of Appeal Record Number:
|164 2015 COA|
Date of Delivery:
Composition of Court:
|Clarke C.J., O'Donnell Donal J., MacMenamin J., Dunne J., O'Malley Iseult J.|
THE SUPREME COURT
[Appeal No: 2016/57]
In the Matter of an application pursuant to part II of the Extradition Act, 1965, as amended
Judgment of the Chief Justice delivered the 24th October, 2017.
1.1 In very general terms the criminal law of most states is concerned with offences said to have been committed within the territory of the state concerned. While there are exceptions to that general proposition it is not normally the case that a person commits an offence contrary to the criminal law of one state where the acts or omissions giving rise to the offence take place elsewhere. It is also a typical feature of many extradition treaties or extradition legislation that surrender to another state is excluded in respect of offences alleged to have been committed in the state to whom the request for surrender is made. The obvious inference to be drawn from such a provision is that it is intended, at least as a default position and in most normal circumstances, that offences should be prosecuted where they are committed.
1.2 This appeal raises questions concerning the interaction between those two general propositions and, in particular, the proper interpretation in that context of s.15 of the Extradition Act, 1965 (“the 1965 Act”). The United States of America sought the extradition of the respondent/appellant (“Mr. Lee”) to stand trial in respect of 51 alleged offences. The offences concerned are alleged to have been committed between the 20th February, 2006, and the 4th May, 2007 and involve allegations of Wire Fraud, Unlawful Monetary Transactions and Aggravated Identity Theft. The sets of offences are said to be connected for the allegation of unlawfulness in respect of the relevant monetary transactions concerned the alleged wire fraud and the allegation of identity theft is also said to be related to the same wire frauds. It is also important to note that the offences are all alleged to have been committed in the United States of America.
1.3 The High Court (Edwards J.), on the 23rd March, 2015, made an order under s.29 of the 1965 Act committing Mr. Lee to prison to await the order of the Minister for Justice for his extradition. (See Attorney General v. Patrick Lee (2015) IEHC 340). Mr. Lee appealed that decision to the Court of Appeal. The appeal was dismissed with both Peart and Hogan JJ. delivering judgments with which the third member of the Court, Costello J., agreed. (See Attorney General v. Patrick Lee (2016) IECA 115). Thereafter, Mr. Lee sought leave to appeal to this Court and was granted leave to appeal on the following terms:-
In order to understand the particular issues which, therefore, arises on this appeal it is necessary to consider s.15 of the 1965 Act.
“…whether the Court of Appeal erred in deciding that:
This Court will also consider whether:
(a) there was a distinction to be made between an offence which was regarded as having been committed within the State, and an offence committed in another state, over which extraterritorial jurisdiction is claimed under Irish Law?
(b) in determining that, in the latter case, such an offence could not be said to be an offence which “is regarded under the law of the State as having been committed in the State”, for the purposes of s.15 of the Extradition Act, 1965?
(See Attorney General v. Lee (2016) IESC DET 93)
(c) the judgment of this Court in Attorney General v. Pocevicius  IESC 59 was correctly decided?”
2. Section 15 and the Issues
2.1 In its original form s.15 was in the following terms:-
2.2 As a result of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act, 2012 a new s. 15 was inserted in place of the original. The text of the new s.15 is as follows:-
2.3 Counsel for Mr. Lee accepted that the argument which he wished to make might not be sustainable were this case to be governed by s. 15 in its current form. As can be seen, the amended form of the section is both conditional and is also discretionary so far as the Minister is concerned. However, s. 15 in its original form is clearly mandatory in that it provides that extradition “shall not” be granted where the condition specified is met.
“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.”
2.4 However, it is common case that this application for extradition is governed by s. 15 in its original form and the issue therefore turns on whether the extradition requested in respect of Mr. Lee is prohibited by the section in that original form.
2.5 It should also be noted that what has often been described as a territoriality exception or a territoriality bar, such as that provided for in s.15, is common in international extradition treaties. In that context Art.7 of the European Convention on Extradition, 1957 provides that “the requested party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory”.
2.6 The offences alleged against Mr. Lee in this case are, of course, said to have been committed in the United States of America so that, prima facie, it might be said that s.15 would not appear to have any application. However, the section speaks of offences “regarded” as having been committed in the State.
2.7 In that context Mr. Lee suggests that, on the same facts as those alleged against him in the United States, he could be prosecuted in this State for an offence contrary to s.71 of the Criminal Justice Act, 2006 (“the 2006 Act”) which provides that, subject to certain exceptions, a person who conspires, “whether in the State or elsewhere” to do an act in a place outside the State which constitutes a serious offence under the law of that place and which would, if done in the State, constitute a serious offence is to be guilty of an offence irrespective of whether such act actually takes place or not.
2.8 Thus, it is argued that the various wire fraud and connected offences alleged against Mr. Lee could be prosecuted in Ireland under s.71 of the 2006 Act. I am prepared, for present purposes, to operate on the assumption that that is so. The key issue is as to what follows.
2.9 The essential argument put forward on behalf of Mr. Lee is that the fact that he could be prosecuted in Ireland for an offence arising out of the facts alleged against him in the United States means that the offence in question must be taken as being “regarded under the law of the State as having been committed in the State” for the purposes of s.15 so as to exclude his extradition.
2.10 In substance that is the net question which arises under grounds “a” and “b” referred to in the determination of this Court as a result of which leave to appeal was granted.
2.11 In reality, the question comes down to a very simple one. There is no doubt but that certain offences in Irish law can be said to be extraterritorial. Indeed, at least in general terms, it can be said that an offence under s.71 of the 2006 Act is one such, for it is clear that an offence, for the purposes of Irish criminal law, can be committed contrary to that section where a person conspires outside the State to do an act which constitutes a serious offence under the law of the place where the act is intended to be committed. Therefore, in principle, s.71 contemplates that one may commit an offence contrary to Irish criminal law by conspiring outside the State to carry out acts outside the State.
2.12 There are, of course, other statutes and provisions of common law which create offences under Irish criminal law even though the acts or omissions constituting the offence occur outside of the State. The real question is as to whether such extraterritorial offences can be said to give rise to the exclusion from extradition provided for in section 15. There are a number of legs to the argument. These issues mainly stem from the response to the arguments addressed by Mr. Lee.
2.13 First, the applicant/respondent (“the Attorney”) argues that, even if it is the case that the acts alleged to have been committed by Mr. Lee would constitute an offence in Irish law under s.71 despite their being carried out in the United States, nonetheless “the offence” for which Mr. Lee’s extradition is sought is in each case a particular statutory offence under United States law. The fact that the same acts might also constitute a different offence under Irish law (being an offence contrary to s.71) does not, on the Attorney’s argument, mean that the US offences for which his extradition is sought could be said to be regarded under the law of Ireland as having been committed in the State. The argument under this heading is about whether the fact that the same set of acts, committed outside the State, may be an offence under the laws of a requesting state and may also be an offence which could be prosecuted in Ireland, means that the Irish offence is necessarily the same offence such as to engage section 15.
2.14 The second leg of the argument concerns the meaning of the phrase “regarded by the law of the State as having been committed in the State”. Under that heading the Attorney contends that the fact that Irish criminal law may permit the prosecution of an offence in Ireland where the acts or omissions which constitute the offence in question occur outside the State does not mean that Irish law regards the offence as having been committed in the State. Rather, it is said, there is a distinction between the concept of an extraterritorial offence, on the one hand, and an offence which is considered by Irish law to have been committed in Ireland, on the other hand.
2.15 The third leg of the argument which arises under this heading concerns the provisions of s.74 of the 2006 Act which provides:-
On that basis it is argued on behalf of Mr. Lee that, whatever may be the general situation concerning extraterritorial offences, the offence which it is said could be prosecuted in Ireland in this case is one which is, by virtue of that section, regarded as a matter of Irish law as having actually been committed within the State. For reasons which I hope will become apparent I propose first turning to the second and third legs of the argument.
“ (1) Proceedings for an offence under section 71 or 72 in relation to an act committed outside the State may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.”
2.16 Finally, it is necessary briefly to note the issue permitted to be pursued by reason of the determination of this Court which concerns the question of whether the judgment of this Court in Attorney General v. Pocevicius  IESC 59 was correctly decided.
2.17 Essentially the point made on behalf of Mr. Lee under this heading is that the decision of this Court in Pocevicius was wrongly decided by virtue of the fact that the Court was not asked to, and therefore did not, consider the arguments about statutory interpretation which are now sought to be advanced on behalf of Mr. Lee on this appeal. In those circumstances it seems to me to be appropriate to first consider the questions of interpretation advanced on behalf of Mr. Lee. If, applying appropriate principles of interpretation, the arguments advanced do not avail Mr. Lee then the question of whether Pocevicius was correctly decided could not arise for they could not lead to a different result to that which occurred in Pocevicius in any event.
2.18 I would propose, therefore, only to return to Pocevicius in the event that it is appropriate to conclude that the questions of interpretation advanced on behalf of Mr. Lee might have merit. It is only in that eventuality that an issue might arise as to whether those arguments might come into conflict with some of the more general observations which are to be found in the judgment of McKechnie J., speaking for this Court in Pocevicius.
2.19 Against that background I now turn to the decisions of the High Court and the Court of Appeal insofar as they are relevant to the issues which I propose first to address.
3. The High Court and the Court of Appeal
3.1 It should be noted that, at various earlier stages of these proceedings, a wider range of issues than those which are currently before this Court were canvassed on behalf of Mr. Lee. It is unnecessary, therefore, to deal with those aspects of the judgments of the High Court and the Court of Appeal which dealt with issues which are no longer relevant to the questions which this Court has to decide.
3.2 Furthermore, as noted earlier, I propose to deal first with those aspects of the arguments which concerned whether the fact that it might be said that the acts alleged to constitute a criminal offence in the United States would also, potentially, constitute an extraterritorial offence known to Irish law engages s. 15 of the 1965 Act, either as a matter of general principle or because of the specific wording of the legislation governing the relevant Irish criminal offence in this case (in particular s. 74 of the 2006 Act).
3.3 In those circumstances it is appropriate, at this stage, to deal only with those aspects of the judgment of the High Court and the two judgments delivered by the Court of Appeal insofar as they dealt with those issues.
3.4 The Court of Appeal (Peart, Hogan and Costello JJ.) upheld each of the conclusions reached by the High Court on those issues. In respect of the offences under the 2006 Act, the Court took the view that the fact that an Irish citizen may be charged with the offence of conspiracy to commit a criminal act in a place outside the State under s. 71 does not mean that the State enjoys a jurisdiction to try the substantive offences with which Mr. Lee is charged where, although he is an Irish citizen, all the acts constituting the offences were allegedly committed only in the United States. The Court also held that Mr. Lee could not be charged under s. 72 with doing in the State any act for the purpose of enhancing the ability of any other person to commit or facilitate a serious offence in a place outside the State, as no such act was alleged against him. The Court also upheld the trial judge’s analysis of s. 74 holding that proceedings for an offence under ss. 71 or 72 which “may for all incidental purposes be treated as having been committed” in any place in the State related to the procedural step of commencing a criminal prosecution in the District Court.
3.5 Against that background it is next necessary to turn to the interpretation of section 15.
4. Where is an Extraterritorial Offence “Regarded” as having been committed
4.1 Much of the submissions on behalf of Mr. Lee in this connection were concerned with establishing that, as a matter of common law, criminal courts only have jurisdiction to try offences committed within their designated areas and have no jurisdiction to try offences allegedly committed outside the relevant territory. Much historical analysis and commentary was directed towards establishing that proposition. For present purposes I am prepared to accept that the proposition thus advanced is correct.
4.2 A second aspect of that argument, building on that first proposition, suggested that, in order for an offence to be capable of being prosecuted in Ireland even though the acts or omissions which constituted the elements of the offence occurred elsewhere, statutory authority was required. Again, for the purposes of this case, I am prepared to accept that proposition. It seems to logically follow from the first proposition. If the common law operates on a presumption that offences can only be prosecuted in Ireland if the acts or omissions which constitute the offence concerned occurred in Ireland, then it would follow that it would need either an established common law exception or alternatively statutory authority in order for there to be jurisdiction to prosecute such a “foreign” offence in this jurisdiction.
4.3 However, there was a third proposition advanced which was said to flow from the first two. It was said that it followed that any legislation permitting the prosecution of an offence in Ireland, even though the acts or omissions which constituted the elements of the offence occurred abroad, must necessarily be taken to deem the offence in question to have been committed in Ireland. I do not accept that this final proposition is well founded. The fact that the Irish Legislature decides to confer on the Irish courts a jurisdiction to consider criminal prosecutions arising out of facts or omissions which occur extraterritorially does not, in and of itself, mean that the relevant offences must be deemed to have been committed in Ireland. It simply means that, even though such offences were not alleged to have been committed in Ireland, they may nonetheless be prosecuted in this jurisdiction. The third proposition seems to rely on an assumption that it is not possible to create an offence which is prosecutable in Ireland, but which concerns acts or omissions occurring abroad, without deeming that offence to have been committed in Ireland. This is said to be necessary so as to confer legitimate jurisdiction on the Irish courts to entertain a relevant prosecution. However, it does not seem to me that the asserted consequence follows. There is no reason in principle why Ireland, or indeed any other country, cannot create extraterritorial offences without deeming the relevant offence to have been committed in the jurisdiction concerned. It may well be that in the past states rarely did create such truly extraterritorial offences. It may also be that, as a matter of practicality, states might sometimes encounter difficulty, at least in certain circumstances, in prosecuting extraterritorial criminal offences. But to acknowledge those propositions is not to say that a state is incompetent to create an extraterritorial offence without also deeming that offence to have been committed within its territory.
4.4 There may be some limitations on the extent to which it may be either permissible or appropriate for a state to create such extraterritorial offences. However, no such question arises in the circumstances of this case. But, for reasons which I will explain further, I do not agree with the proposition which is implicit in the argument put forward on behalf of Mr. Lee, which asserts that a state is incompetent to create an extraterritorial offence without at the same time deeming the offence concerned to have been committed within its territory.
4.5 Against that background it is appropriate to turn to the particular offence relied on in this case to suggest that Mr. Lee can be said to be sought to be extradited to the United States for an offence “regarded” as having been committed in Ireland. That is the offence of conspiracy under s. 71 of the 2006 Act.
4.6 The particular provision of the section relied on (being subs. (1)(b)) does not require, for an offence to be committed, that the relevant conspiracy must take place in any particular location for it is clear that the conspiracy can occur “in the State or elsewhere”. However, in the context of subs. (b), the act to which the conspiracy relates must be intended to take place outside the State and constitute a serious offence under the law of the place outside the State where it is intended that it occur.
4.7 It is illustrative that there is nothing in the wording of that section which suggests that Irish law regards an offence under s.71 as necessarily being committed in the State. Clearly it is possible that the entire conspiracy could take place in the State even though the act in respect of which the conspiracy lay might be intended to take place outside the State. In such a case it might well be said that Irish law would consider that the offence of conspiracy was committed in this State.
4.8 However, where the conspiracy takes place outside the State, there is nothing in the wording of the section to suggest that the offence is considered to have been committed in the State. Rather, it is simply the case that Irish criminal law extends jurisdiction to an offence contrary to s.71 even though the conspiracy alleged occurs outside the State.
4.9 In order to deal with that potential difficulty counsel for Mr. Lee argues that the creation of an extraterritorial offence necessarily carries with it a consequence that Irish law regards the offence as having been committed in Ireland. As already noted that submission is based on an assertion that states do not extend their criminal law beyond their borders so that, it is said, the enactment of a criminal law with extraterritorial effect necessarily carries with it a deemed implication that Irish law considers or deems the offence to have been committed in Ireland rather than in the place where the acts constituting the alleged offence actually occur.
4.10 However, as I have already suggested, there is no reason in principle why Ireland, or indeed any other state, cannot, consistent with its own constitutional architecture, create criminal offences in respect of acts committed outside of their territory. There may, in some circumstances, be practical questions concerning the enforcement of such criminal laws. If a person alleged to have committed an extraterritorial offence does not come to Ireland then there will be no practical way in which they might be prosecuted for the offence in question unless they can be extradited to Ireland. However, even if there are extradition arrangements between Ireland and the country where that person might be found, an extradition request might run into difficulties if the law of the requested state has a provision similar to s.15, and the requested state was the place where the extraterritorial offence was said to have been committed.
4.11 But these are just practical difficulties. They do not alter the legal position. If the person can be found and arrested in Ireland then there is no reason why the offence cannot be prosecuted. Likewise, if the person is found in a state which either does not have a restriction on extradition similar to s.15 or, perhaps more likely, in a state which might be considered to be a third country not being either Ireland or the country in which the offences are alleged to have been committed, then extradition may be possible. In any event once it proves practically possible to prosecute a person in Ireland for an extraterritorial criminal offence known to Irish law, the legal position remains clear. The offence is not deemed or regarded as having been committed in Ireland. Rather it is simply an offence known to Irish law which can be committed either anywhere in the world or, in accordance with the terms of the relevant law, in an appropriate location.
4.12 Much of the written submissions filed on behalf of Mr. Lee were concerned with establishing that the default position, both at common law and in respect of statutory offences, was that offences are confined to those committed either in Ireland or, perhaps, in places, such as on ships or aeroplanes, which might be deemed to be part of Ireland for legal purposes. There is little doubt but that the general proposition thus advanced is correct. An Irish offence where the statute is silent as to where the offence can be committed will be taken to be an offence which can only be committed in the State.
4.13 However, it is accepted that there were a very limited number of common law exceptions to that rule and that, so far as statute law is concerned, a statute may either extend extraterritoriality to a common law offence or, in creating a statutory offence, may provide that such an offence is to be extraterritorial.
4.14 But it does not necessarily follow that the fact that it requires an express statutory provision to create an Irish criminal offence which can be prosecuted in respect of acts committed outside the State means that the same statutory provision deems those acts to have been committed in the State. There is no reason in logic why a legislative measure which extends Irish criminal jurisdiction to certain specified acts committed outside the State must be taken to, at the same time, deem those acts to have been committed inside the State.
4.15 The Court of Appeal took the view that there was a distinction, therefore, between extraterritoriality, on the one hand, and the location where an offence might be said to have been committed so far as Irish law was concerned, on the other hand. In my view the Court of Appeal were entirely correct in coming to that conclusion.
4.16 Before leaving this issue it is also necessary to consider one final argument made on behalf of Mr. Lee on this aspect of the case. It is said that it is necessary to give some meaning to that aspect of the terms of s.15 which refers to the offence as being “regarded” in Irish law as having been committed in the State. Attention is drawn to the fact that the section does not speak of an offence simply having been committed in the State but rather as being regarded in accordance with Irish law as having been so committed. It is argued, correctly so far as it goes, that the Court should attempt to give some meaning to that phrase for it must be assumed that it was not included in the section for no purpose.
4.17 However, it does seem to me that there is a clear and obvious purpose for the inclusion of the phrase in question in section 15. While the place at which an offence may be said to have been committed may be clear in very many cases, that will not always be so. In the ordinary way, for example, the location of an offence of assault or murder will be the place where the physical events occurred. An armed robbery on a bank will take place where the bank in question is located. No question of determining the place at which the offence is alleged to have been committed will arise in such cases.
4.18 However, there can be other cases where there might be some legitimate debate about the location of an offence. A person who fires a gun across a border killing a victim who is situated in another state is likely to be regarded as having committed the offence of murder in both states. However, there might be a real question as to the state in which it might be said the offence was committed. Is it where the perpetrator fires the gun? On the other hand it might be said that an offence of murder is not complete until the victim is injured such that they die, so that, on that argument, it might be said that the offence was committed where the victim was located. But there could be further complications. What if the offence is one of attempted murder in circumstances where a shot is fired but the intended victim is missed? In such a case the offence of attempted murder would be complete once the shot was fired with intent to kill. Doubtless very many more examples could be given.
4.19 However, the essential point is that these can be debateable questions and the laws of different jurisdictions may give different answers to them. It might, for example, be the case that, in a situation such as the cross border shooting and killing which I have described, the laws of both jurisdictions would deem the offence to have been committed on their own territory. The purpose of the precise phraseology of s.15 is, therefore, to make clear that the place in which an offence is actually held to have been committed is to be determined in accordance with Irish law rather than the law of any other relevant jurisdiction. If Irish law regards a particular offence as having been committed in Ireland then s.15 is engaged even though, on the same facts, the law of another relevant jurisdiction might regard the offence as having been committed in that other jurisdiction rather than in Ireland. It would clearly be wholly unsatisfactory if there were confusion as to which law was to apply for the purposes of determining whether s.15 was engaged. It is for that reason that the section makes clear that the location at which an offence is committed is to be considered as a matter of Irish law rather than the law of any other state. It follows that the phrase in question does make a significant contribution to the overall meaning and application of s.15 without necessarily having to go so far as suggesting that the phrase in question implies that any offence over which Ireland claims extraterritorial jurisdiction must be “regarded” as having been committed in Ireland.
4.20 I am satisfied, therefore, that it is generally the case that extraterritorial offences, which are offences contrary to Irish criminal law even if not actually committed in Ireland, are not deemed to have been committed in Ireland simply by virtue of the fact that such an extraterritorial offence has been brought into being in Irish criminal law. However, this general proposition does not mean that other statutory provisions might not, in particular circumstances, and having regard to a particular legislative regime, deem or “regard” a particular offence in specified circumstances to have actually been committed in Ireland. That leads to the s.74 question.
4.21 In that context it is necessary to look at s. 74 of the 2006 Act which relates to proceedings relating to offences under s. 71 or s. 72 of that Act. In particular s. 74(1) is relevant and, as has already been noted, provides that proceedings for such offences which relate to acts “committed outside the State may be taken in any place in the State and the offence may for all incidental purposes be treated as having been committed in that place.”
4.22 On the basis of that provision it is argued that, whatever may be the general position in respect of extraterritorial offences, an offence under s. 71 of the 2006 Act is “treated as having been committed” in “any place in the State” being a place where proceedings for such an offence are taken.
4.23 It is important to emphasise that the terms of s. 74(1) are designed principally to govern the commencement of proceedings for offences under s. 71 or s. 72. In that context it must be recalled that most serious crimes (with very limited exceptions) are prosecuted in the Circuit Court, although the proceedings will normally commence in the District Court. The jurisdiction of the Circuit Court to entertain criminal proceedings is governed by s. 25 of the Courts (Supplemental Provisions) Act, 1961 which provides as follows:-
4.24 Similar provisions exist in respect of summary prosecutions in the District Court and the commencement of potentially indictable prosecutions in that Court.
4.25 Thus, for practical purposes, it is essential that there be clarity about which District or Circuit Court has jurisdiction to entertain any particular charge on indictment. It seems to me to follow that at least the principal purpose of s. 74 is to confer on the relevant prosecuting authorities an entitlement to bring proceedings under s. 71 or s. 72, which relate to acts committed outside the State, in any District Court area or circuit of the Circuit Court, for without such a provision there might well be difficulty in determining that any particular district of the District Court or any particular circuit of the Circuit Court would have jurisdiction to entertain such proceedings.
4.26 Notwithstanding that general observation, it is still argued on behalf of Mr. Lee that the wording of s. 74 is clear and that it also deems such offences to be committed within the State so that they must be “regarded” as having been committed within the State for the purposes of section 15. In that context it is important to emphasise that the wording of s. 74(1) refers to relevant offences as having been committed in a place in the State “for all incidental purposes”. It is important to note that the section does not speak of “for all purposes” but rather qualifies that phrase by the use of the term “incidental”. It does not seem to me that that use of language is accidental or superfluous. Rather it is intended to convey that the purposes for which the offence is to be regarded as having been committed in the place in which proceedings are “taken” are purposes incidental to the fact that the proceedings have been “taken” in that place. The meaning of the section is, therefore, clear. It is not designed to deem such extraterritorial offences to have been committed in the State or any particular part of the State. Rather it is intended to ensure that, for procedural purposes, no jurisdictional difficulty will lie in prosecuting proceedings within any particular district of the District Court or on any particular circuit of the Circuit Court notwithstanding the normal jurisdictional limits which apply to the District and Circuit Courts by reason of the Court concerned being courts of local and limited jurisdiction under the Constitution.
4.27 I would emphasise that it does not seem to me to be impossible, at the level of principle, that there might be a legislative provision which treats a particular type of offence as being actually committed in Ireland even though some (or perhaps even all) of the acts or omissions which constitute the offence in question occurred to a greater or lesser extent in a different jurisdiction. Indeed, the importance of such deeming provisions may loom all the larger in the virtual age where it may be extremely difficult to determine with any great precision where the acts or omissions constituting an alleged offence might have taken place. If the wording of a relevant legislative provision treats an offence as having actually been committed in Ireland, even though some of the conduct which may give rise to the offence in question may take place in other jurisdictions, then it may well be that such an offence engages section 15.
4.28 However, it does not seem to me that s. 74(1) is such a deeming provision. Rather it is a provision which is designed to, and achieves the object of, simply ensuring that there are no jurisdictional issues encountered in determining which District or Circuit Court within Ireland may have jurisdiction to entertain prosecutions under ss. 71 and 72 of the 2006 Act.
4.29 For those reasons I am not satisfied that this is a case where it can be said that a potential offence under s. 71 is regarded, for the purposes of engaging s. 15, as having been committed in Ireland.
4.30 For those reasons it seems to me that s.15 was not engaged in the circumstances of this case and that the Court of Appeal (and indeed the High Court) was correct so to hold. I propose to add some brief comments on the other argument raised under this general heading which is concerned with whether the offences for which Mr. Lee is sought to be extradited (being the various offences under US law earlier referred to) could be said to be an offence under Irish law at all. However, as that issue is potentially of some importance and is not, given the views I have already expressed on the second and third legs of the argument, decisive, I propose to limit myself to some observations rather than suggesting any final determination.
5. Some Observations
5.1 These observations relate to the first point mentioned earlier in this judgment which derives from the wording of s. 15 itself. As will be recalled, the surrender of a person whose extradition is sought is excluded under that section where the offence in respect of which the extradition request is made is regarded as having been committed in Ireland.
5.2 However, that provision speaks of “the” offence being one which is regarded as having been committed in this State. That in turn raises a question as to how one is to assess whether “the offence” in respect of which extradition is sought is the same offence as one which might be said to have been committed in Ireland.
5.3 On the one hand, there is a sense in which every offence is defined by the laws of the country in which it is intended that a person might be prosecuted. Even offences which, at least in general terms, form part of the law of all or almost all countries are defined, as to their specific elements, by the law of the country concerned. While all countries are likely to have a law which creates a serious criminal offence of murder or homicide the precise parameters or elements of the offence may differ to some extent from one jurisdiction to another. Even where the parameters of a relevant offence are the same it might be said that that is so only because the law of the two jurisdictions concerned happens to define the offence in the same terms. In that way it might be possible to argue that there is an offence of murder as known to Irish law and there may also be an offence of murder as known to the law of any other relevant jurisdiction, but that the two offences are not, strictly speaking, the same offence because the parameters of the offence are defined by the law of the respective jurisdictions.
5.4 However, to take such a narrow interpretation of the meaning of “the offence” as that term is used in s. 15 would have the effect of rendering the section meaningless for it could never be the case that a foreign offence could be regarded as having been committed in the State precisely because that foreign offence would be a creation of the criminal law of the relevant foreign jurisdiction and that foreign offence would not be, therefore, strictly speaking, an offence in Irish law at all.
5.5 Nonetheless, on the other hand, some meaning must be given to the requirement which is to be found in s. 15 that it is “the” offence in respect of which extradition is sought which must be regarded as having been committed in Ireland as a matter of Irish law. The section does not suggest that the exclusion for which it provides is to apply simply because, on the same facts, a person might be taken to have committed “an” offence in Ireland even though the Irish offence might be significantly different in its character to the offence in respect of which extradition is sought.
5.6 There is, therefore, a significant question which arises as to the extent to which there must be a similarity between the offence in respect of which extradition is sought, on the one hand, and the offence which, on the same facts, it is said is regarded, as a matter of Irish law, to have been committed in Ireland, so as to engage the prohibition on extradition contained in section 15. It should be emphasised that the answer to that question is not necessarily the same as the answer to the question which often arises in extradition proceedings concerning whether the offence in respect of which extradition is sought has a sufficient counterpart in Irish law.
5.7 However, it does not seem to me that it is necessary to answer this potentially difficult question in the circumstances of this case. For the reasons which I have already sought to analyse, I am of the view that s. 71 of the 2006 Act creates an extraterritorial offence as a matter of Irish criminal law without deeming that offence to have been committed in Ireland. On the facts alleged against Mr. Lee in the United States proceedings, the alleged offences are said to have actually been committed in the United States. It follows that, unless there were a provision of Irish law which deemed any relevant offence to have been committed in Ireland even though the acts or omissions constituting the offence alleged took place outside Ireland, the offences concerned could not be said to be “regarded” as having been committed in Ireland for the purposes of Irish law. In those circumstances, the question of whether there might or might not be a sufficient similarity between the offences for which Mr. Lee’s extradition is sought and any potential Irish offence does not arise.
5.8 Having regard to the importance of the question thus raised, I would not propose to resolve the issue in a case where it did not properly arise and I would confine myself to the observations earlier made which seek to identify the question. I have also come to that view in part because the issue was not as fully explored at the oral hearing as might have been necessary to reach a robust conclusion on the general issue of principle.
6.1 For the reasons analysed earlier I am of the view that it does not necessarily follow from the fact that Irish statute criminal law creates an offence which can involve acts or omissions solely arising outside of the jurisdiction, means that any such offence must be deemed, for the purposes of s. 15 of the 1965 Act, to be “regarded” as having been committed in Ireland as a matter of Irish law.
6.2 Furthermore I am satisfied that the terms of s. 74 of the 2006 Act do no more than provide for incidental, and therefore principally procedural, purposes that offences under ss. 71 or 72 of that Act are taken for those purposes to have been committed in any place in which criminal proceedings are commenced thus ensuring that any relevant District or Circuit Court has jurisdiction. On that basis I am not satisfied that s. 74 has the effect of deeming offences under ss. 71 or 72 to have been committed in Ireland so that such offences must be “regarded” as having been committed in Ireland as a matter of Irish law.
6.3 Having come to that view it does not seem to me that the question of whether Pocevicius was correctly decided arises for the argument under that heading was based on the interpretation of the relevant legislation and in particular s. 15 of the 1965 Act and s. 74 of the 2006 Act which was urged on behalf of Mr. Lee. Having concluded that the interpretation thus urged was not correct then the question of whether Pocevicius was incorrectly decided, because that question of interpretation was not raised, becomes irrelevant.
6.4 For those reasons I am satisfied that the Court of Appeal was correct to uphold the decision of the High Court and I would propose that this Court should, therefore, dismiss the appeal and affirm the order of the High Court. I would propose that counsel be heard further on the precise form of order which should now be made to facilitate Mr. Lee’s extradition.