Murray C.J.
Geoghegan J.
Macken J.
BETWEEN/


JUDGMENT of Mr. Justice Geoghegan delivered the 31st day of July 2008


I have had the opportunity of reading the judgments of the Chief Justice and of Macken J. and they are substantially to the same effect. As there are slight nuances of difference on two aspects, I would like to clarify my own position in respect of each of them.

On the question of whether the second alternative under section 38(1)(b) is workable or viable, I am in agreement with the Chief Justice. Understandably, a court or judge would want, if possible, to discern an operative meaning in any piece of legislation enacted by the Oireachtas. In this instance, however, I have reluctantly come to the conclusion that it is not possible. I consider that I am particularly entitled to take that view having regard to the established principle referred to in the judgment of the Chief Justice that the Act must be interpreted in the light of the Framework Decision. Section 38(1)(b) refers to “an offence that consists of conduct specified in that paragraph”, that paragraph, of course, being paragraph 2 of Article 2 of the Framework Decision. But this is where the faulty draftsmanship arises. That paragraph in the Framework Decision is intended as a list of “offences” not a list of categories of “conduct”. If the offence is considered by the requesting state to come within that list, it must give the executing state that information. The method of conveying that information is by the ticking of the boxes. The Irish courts cannot adjudicate on what courses of conduct might be criminal offences or particular types of criminal offences under Lithuanian law. If there is no correspondence therefore in the traditional sense, there cannot be extradition unless the offence has been ticked off in the appropriate box.

I rather doubt that there could be some hypothetical case with which the court is not now dealing in which that second alternative under paragraph (b) could properly arise.

The second matter relates to the sentencing issue. This was the subsidiary argument in the case. At first sight, it might be tempting to assume that Lithuanian sentencing principles were similar to Irish sentencing principles and, therefore, to interpret the sentence still to be served as being the same sentence for each of the three offences but intended to run concurrently. However, on reflection, any such inference would seem to be unjustified. The information which has been given to the Irish courts by the Lithuanian authorities is that the sentence is a combined sentence. That being so, the court cannot adjudicate as to whether the conditions under section 38 of the 2003 Act are complied with.

Otherwise, I am in complete agreement with both judgments.




MJELR v. Ferenca