[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.G. v. Leneghan [2004] IEHC 65 (19 April 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/65.html Cite as: [2004] IEHC 65

[New search] [Printable RTF version] [Help]

 


HC 166/04

THE HIGH COURT

RECORD NO. 2004 8 EXT

BETWEEN

THE ATTORNEY GENERAL

APPLICANT

AND

BRENDAN JOSEPH LENEGHAN

RESPONDENT

Judgment of Finnegan P. delivered on the 19th day of April 2004

The authorities in England and Wales seek the extradition of the Respondent on foot of two warrants. The charges detailed in the warrants against the Respondent are as follows –

(1) Jane Marie Eyre and Brendan Joseph Leneghan on a day between the 30^th day of January 2003 and the second day of February 2003 being persons who had attained the age of sixteen years and having the responsibility for Hannah Eyre a child under that age wilfully assaulted, ill-treated, neglected, abandoned or exposed the said Hannah Eyre in a manner likely to cause the said Hannah Eyre unnecessary suffering or injury to health.

Contrary to section 1(1) of the Children and Young Persons Act 1933.

(2) Brendan Joseph Leneghan on a day between the 30^th day of January 2003 and the 2^nd day of February 2003 assaulted Hannah Eyre thereby occasioning her actual bodily harm.

Contrary to section 47 of the Offences Against The Person Act 1861.

The following issues arose on the hearing before me:-

(1) An issue as to correspondence in relation to the warrant mentioned at (1) above only.

(2) An issue on the European Arrest Warrant Act 2003 section 50

The First Issue

The Applicant relies on the Children's Act 2001 Section 246 as an offence corresponding to that specified in the warrant. The Children's Act 2001 section 246 provides as follows:-

246.—(1) It shall be an offence for any person who has the custody, charge or care of a child wilfully to assault, ill-treat, neglect, abandon or expose the child, or cause or procure or allow the child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child's health or seriously to affect his or her wellbeing.

(2) A person found guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding £10,000 or imprisonment for a term not exceeding 7 years or both.

(3) A person may be convicted of an offence under this section—

(a) notwithstanding the death of the child in respect of whom the offence is committed, or

(b) notwithstanding that actual suffering or injury to the health of the child, or the likelihood of such suffering or injury, was obviated by the action of another person.

(4) On the trial of any person for the murder of a child of whom the person has the custody, charge or care, the court or the jury, as the case may be, may, if satisfied that the accused is guilty of an offence under this section in respect of the child, find the accused guilty of that offence.

(5) For the purposes of this section a person shall be deemed to have neglected a child in a manner likely to cause the child unnecessary suffering or injury to his or her health or seriously to affect his or her wellbeing if the person—

(a) fails to provide adequate food, clothing, heating, medical aid or accommodation for the child, or

(b) being unable to provide such food, clothing, heating, medical aid or accommodation, fails to take steps to have it provided under the enactments relating to health, social welfare or housing.

(6) In subsection (1) the reference to a child's health or wellbeing includes a reference to the child's physical, mental or emotional health or wellbeing.

(7) For the purposes of this section ill-treatment of a child includes any frightening, bullying or threatening of the child, and "ill-treat" shall be construed accordingly.

Having regard to the decision in The Attorney General v Scot Dwyer Supreme Court 16^th January 2004 Unreported my enquiry is into the correspondence in terms of the legal elements of the offences created under the laws of the respective jurisdictions. I am not concerned to construe the foreign law although I may receive evidence of the same: in this case no evidence of foreign law was tendered to me. Accordingly I examine the documents set before me in order to see whether there is a sufficient statement of the particulars of the ingredients of the offence alleged to enable me to bring to bear on them my knowledge of the laws of this State and to determine whether the acts alleged against the Applicant would constitute an offence under the laws of this State. The exercise which I have to perform was dealt with by Walsh J. in The State (Furlong) v Kelly 1971 I.R. 132 at 143 –

"The function of the District Judge is to examine the documents set before him to see whether there is a sufficient statement of the particulars of the ingredients of the offence alleged to enable him to bring to bear on them his knowledge of the law of this State so that he may determine whether the acts alleged against the prisoner would constitute an offence under the laws of this State. It appears to me to be necessary that, before a District Justice can enter upon his determination of this matter, either the warrant itself must contain sufficient particulars of a factual nature setting out the ingredients of the offence alleged or it should be accompanied by an Affidavit by the prosecuting authority or a duly authorised officer of the prosecuting authority, setting out the particulars of the facts complained of – somewhat as the particulars of offences appear in a count on an indictment under our law."

There is in terms of content remarkable similarity between the Children's Act 2001 section 246 and the statement of the offence in respect of which extradition is sought. Thus I am satisfied that there is sufficient correspondence in terms of the phrases looked at as non technical language contained in each insofar as the phrases "wilfully to assault, ill-treat, neglect, abandon or expose the child, or cause or procure or allow the child to be assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child's health or seriously to affect his or her well being" in the Irish Statute and "wilfully assaulted, ill-treated, neglected, abandoned or exposed the said Hannah Eyre in a manner likely to cause the said Hannah Eyre unnecessary suffering or injury to health in the offence charged". Each word, both in the Statute and in the offence charged, is an ordinary English word to which there is no difficulty assigning a meaning.

There are however some differences between section 246 and the offence charged. The Irish offence is committed by a person who has "the custody and charge of a child". The offence charged is "having a responsibility for … a child". "Responsibility" is a perfectly ordinary word in use in the English language. In the present context I can see no difference in meaning between "responsibility" and "care".

The offence charged relates to a child under the age of 16 years. Section 246 of the Children's Act 2001 refers simply to a child: however the Act defines child in section 3 as a person under the age of 18 years.

Having regard to the foregoing I am satisfied that the factual basis of the offence charged set out in the warrant giving the words therein their ordinary and natural meanings corresponds with an offence in Irish law created by the Children's Act 2001 section 246.

The Second Issue

The European Arrest Warrant Act 2003 repealed Part III of the Extradition Act 1965. I sub-section (2) thereof it provides as follows –

(2) Where, before the commencement of this Act, a warrant issued by a judicial authority in a place in relation to which Part III of the Act of 1965 applies was –

(a) produced to the Commissioner of the Garda Siochana for the

purposes of section 43 of the Act of 1965, or

(b) endorsed for execution under that Part,

then, notwithstanding the repeal of the said Part III effected by sub-section (1), that Part shall, on and after the said commencement, continue to apply in relation to that warrant and the person named in that warrant shall be dealt with under and in accordance with that Part.

From the evidence adduced on Affidavit before me I am satisfied and I find as a fact that –

(1) The two warrants the subject matter of this application were produced to the Commissioner of the Garda Siochana (as defined in the 1965 Act at section 42 thereof) on the 23^rd December 2003.

(2) The said warrants were endorsed for execution on the 2^nd January 2004.

Counsel on behalf of the Applicant argues that in section 50(2) the word "or" must be read conjunctively so that in order for the transitional provisions of that section to apply a warrant must have been both produced and endorsed if, after the commencement of the 2003 Act, they are to continue to be dealt with in accordance with Part III of the 1965 Act.

I have considered this argument. I have had regard to the provisions of section 43 and 44 of the 1965 Act and I am satisfied that there can be a lapse of time between the production of a warrant and the endorsement of the same. In these circumstances I am satisfied that "or" should be read disjunctively. I can find nothing in the context in which the word is used to suggest otherwise.

This being so the warrant in this case having been produced to the Commissioner prior to the commencement of the European Arrest Warrant Act 2003 on the 1^st January 2004 Part III of the 1965 Act continued to apply to the same and the warrant falls to be dealt with under and accordance therewith.

In these circumstances I am satisfied

(i) that there is the necessary correspondence between the offence alleged in the warrant and an offence under Irish law and

(ii) that the Applicant's extradition is appropriately dealt with under the provisions of Part III of the Act of 1965.