Minister for Justice and Equality -v- Doyle [2012] IEHC 451 (26 October 2012)

Judgment Title: Minister for Justice and Equality -v- Doyle

Neutral Citation: 2012 IEHC 451

High Court Record Number: 2011 252 EXT

Date of Delivery: 26/10/2012

Court: High Court

Composition of Court:

Judgment by: Edwards J.

Status of Judgment: Approved

Neutral Citation Number: [2012] IEHC 451

THE HIGH COURT

Record No: [2011 No. 252 EXT]

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT 2003,

AS AMENDED

BETWEEN

THE MINISTER FOR JUSTICE AND EQUALITY

APPLICANT

- AND -

YVONNE DOYLE

RESPONDENT

JUDGMENT of Mr. Justice Edwards delivered on the 26th day of October, 2012

Introduction
The respondent is the subject of a European arrest warrant issued by the United Kingdom of Great Britain and Northern Ireland (hereinafter “the U.K.”) on the 27th June, 2011. The warrant was endorsed for execution in this jurisdiction by the High Court (Peart J.) on the 15th July, 2011. The respondent was arrested on the 8th January, 2012, and brought before the High Court in accordance with s. 13 of the European Arrest Warrant Act 2003, as amended, (hereinafter referred to as “the Act of 2003”) when a date was fixed for the purposes of s.16 of the Act of 2003. Thereafter, the matter was adjourned from time to time, mostly upon the application of the respondent, until it came on for a surrender hearing spread across various dates in July 2012.

The U.K. seeks the rendition of the respondent for the purposes of conducting a criminal prosecution in respect of the eighteen offences the subject matter of the warrant. The underlying domestic warrant is a warrant of arrest dated the 28 January, 2011 issued at Milton Keynes Magistrates Court for failing to answer bail in respect of those eighteen offences, which consist of:

• five offences of possessing false identity documents with intent

• five offences of dishonesty of obtaining services by deception

• one offence of fraud by false representation

• one offence of obtaining and money transfer by deception

• six offences of cheating the revenue

The respondent does not consent to her surrender to the U.K. Accordingly, this Court is now being asked by the applicant to make an order pursuant to s. 16 of the Act of 2003 directing that the respondent be surrendered to such person as is duly authorised by the issuing state to receive her.

The Court must consider whether the requirements of s. 16 of the Act of 2003, both controversial and uncontroversial, have been satisfied. Before considering the specific objections raised by the respondent, it is appropriate to identify those matters that are uncontroversial.

Uncontroversial s. 16 issues
The Court has received an affidavit of Garda Gary Gordon sworn on the 20th March, 2012 and has also received and scrutinised a copy of the European arrest warrant in this case. Moreover, the Court has also inspected the original European arrest warrant which is on the Court’s file and which bears this Court’s endorsement. In addition, counsel for the respondent has confirmed that no issue arises as to identity. The Court is satisfied following its consideration of these matters that:

(a) the European arrest warrant was endorsed for execution in this State in accordance with s. 13 of the Act of 2003;

(b) the warrant was duly executed;

(c) the person who has been brought before the Court is the person in respect of whom the European arrest warrant was issued;

(d) the warrant is in the correct form;

(e) no issue arises as to trial in absentia as it is not a conviction type warrant, and no undertaking can therefore be required under s. 45 of the Act of 2003;

(f) the High Court is not required, under s. 21A, s.22, 23, or 24 (inserted by ss. 79, 80, 81 and 82 of the Criminal Justice (Terrorist Offences) Act 2005), to refuse to surrender the respondent under the Act of 2003.

In addition, the Court is satisfied to note the existence of the European Arrest Warrant Act 2003 (Designated Member States) Order 2004, S.I. 4/2004 (hereinafter referred to as “the 2004 Designation Order”), and duly notes that by a combination of s. 3(1) of the 2003 Act, and article 2 of, and the schedule to, the 2004 Designation Order, the “United Kingdom of Great Britain and Northern Ireland” is designated for the purposes of the Act of 2003 as being a state that has under its national law given effect to the Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1 18.7.2002 (hereinafter “the Framework Decision”).

The Points of Objection
Points of Objection were filed by or on behalf of the respondent on the 20th June, 2012. The document contained six points. Of these three of them (no.s 1, 2 and 6, respectively) could be characterised as general non-specific objections variously asserting that the applicant was being put on proof; that the warrant was bad on its face (without specifying precisely in what manner); and reserving the respondent’s right to rely on “such further points of objection as may be permitted by this Honourable Court”. The other three (no.s 3, 4 & 5, respectively) were substantive and were the grounds in fact relied upon at the hearing (at the outset at least). These were pleaded in the following terms:

“3. The offence of 'Cheating the Revenue' is not an offence under Irish law. The issuing authority erred in certifying it as the offence of fraud for the purpose of the list in Article 2.2 of the Framework Decision and the surrender of the applicant in respect of the said charges is prohibited.

4. The offence of 'Possessing False Identity Documents with Intent' is not an offence under Irish law and correspondence is not made out. The surrender of the applicant in respect of the said charges is prohibited for this reason.

5. The applicant is put on proof that the conduct are set out on the said warrant corresponds with the particulars of the offences for which surrender is sought. In particular, the conduct particularised at 12, 13, 14, 18 in the list offences does not correspond with the facts as set out in the warrant, as there is no allegation therein of misconduct or criminality before 2000 and the date of commencement of the alleged criminality in 2000 is not given.”

The Offences Particularised at Part E of the Warrant
Eighteen separate offences are particularised at Part E of the warrant as follows:

1. Possessing identity documents with intent -- Identity Cards Act 2006

On 8th December 2009, as Milton Keynes in the county of Buckinghamshire, Yvonne Doyle had in her possession an identity document, namely a driving licence in the name of Ann Carden (xJGM/4/1/3), which was improperly obtained and which she knew or believed to have been improperly obtained with the intention of using it for establishing registrable facts about herself.

Contrary to section 25 (1) Identity Cards Act 2006.

2. Possessing identity documents with intent -- Identity Cards Act 2006

On 8th December 2009, as Milton Keynes in the county of Buckinghamshire, Yvonne Doyle had in her possession an identity document, namely a driving licence in the name of Ann Carden (xJGM/4/1/4), which was improperly obtained and which she knew or believed to have been improperly obtained with the intention of using it for establishing registrable facts about herself.

Contrary to section 25 (1) Identity Cards Act 2006.

3. Cheating the Revenue -- contrary to Common Law

Between 26th of January 2004 and 2nd August 2004 at Milton Keynes in the county of Buckinghamshire, Yvonne Doyle with intent to defraud and to the prejudice of Her Majesty the Queen and the Secretary of State for the Department of Work and Pensions, entered into a course of conduct in which she obtained for herself £1,982.05 in payments of Carers Allowance benefit, whereas she was not so entitled to such payments as she claimed using a false identity of Ann Marie Carden.

Contrary to Common Law (Cheating the Revenue).

4. Obtaining Services by Deception -- Theft Act 1978

Between 1st April 2005 and 12th April 2005, at Milton Keynes in the county of Buckinghamshire, Yvonne Doyle dishonestly obtained services, namely a credit card account with Monument credit card business, by deception namely by falsely representing that she was Ann Carden.

Contrary to section 1 (1) Theft Act 1978.

5. Obtaining Services by Deception -- Theft Act 1978

Between 1st March 2005 and 17th March 2005, at Milton Keynes in the county of Buckinghamshire, Yvonne Doyle dishonestly obtained services, namely a credit card account with Marbles credit card business, by deception namely by falsely representing that she was Ann Carden.

Contrary to section 1 (1) Theft Act 1978.

6. Obtaining Services by Deception -- Theft Act 1978

Between 1st April 2005 and 23rd April 2005, at Milton Keynes in the county of Buckinghamshire, Yvonne Doyle dishonestly obtained services, namely a credit card account with Home Retail Group credit card business, by deception namely by falsely representing that she was Ann Carden.

Contrary to section 1 (1) Theft Act 1978.

7. Obtaining Services by Deception -- Theft Act 1978

Between 1st May 2005 and 31st May 2005, at Milton Keynes in the county of Buckinghamshire, Yvonne Doyle dishonestly obtained services, namely a credit card account with Egg credit card business, by deception namely by falsely representing that she was Ann Carden.

Contrary to section 1 (1) Theft Act 1978.

8. Obtaining a Money Transfer by Deception -- Theft Act 1968

Between 1st May 2005 and 31st May 2005, at Milton Keynes in the county of Buckinghamshire, Yvonne Doyle dishonestly obtained for herself a money transfer in the sum of £25,000 by deception namely by falsely representing that she was Ann Carden.

Contrary to section 15A Theft Act 1968.

9. Possessing identity documents with intent -- Identity Cards Act 2006

On 8th December 2009, as Milton Keynes in the county of Buckinghamshire, Yvonne Doyle had in her possession an identity document, namely a driving licence in the name of Angela Carden (xJGM/4/1/19), which was improperly obtained and which she knew or believed to have been improperly obtained with the intention of using it for establishing registrable facts about herself.

Contrary to section 25 (1) Identity Cards Act 2006.

10. Possessing identity documents with intent -- Identity Cards Act 2006

On 8th December 2009, as Milton Keynes in the county of Buckinghamshire, Yvonne Doyle had in her possession an identity document, namely a UK passport in the name of Bridgette Meally (xJGM/4/1/9), which was improperly obtained and which she knew or believed to have been improperly obtained with the intention of using it for establishing registrable facts about herself. Contrary to section 25 (1) Identity Cards Act 2006.

11. Possessing identity documents with intent -- Identity Cards Act 2006

On 8th December 2009, as Milton Keynes in the county of Buckinghamshire, Yvonne Doyle had in her possession an identity document, namely an Irish passport in the name of Bridgette Meally (xJGM/4/1/8), which was improperly obtained and which she knew or believed to have been improperly obtained with the intention of using it for establishing registrable facts about herself. Contrary to section 25 (1) Identity Cards Act 2006.

12. Cheating the Revenue -- contrary to Common Law

Between 8th of May 2000 and 26th December 2002 at Milton Keynes in the county of Buckinghamshire, with intent to defraud and to the prejudice of Her Majesty the Queen and the Secretary of State for the Department of Work and Pensions, entered into a course of conduct in which she obtained for herself £10,202.35 in payments of Carers Allowance benefit, whereas she was not so entitled to such payments as she claimed using a false identity of Bridgette Meally.

Contrary to Common Law (Cheating the Revenue).

13. Cheating the Revenue -- contrary to Common Law

Between 7th of January 1997 and the 17th October 2008 at Milton Keynes in the county of Buckinghamshire, with intent to defraud and to the prejudice of Her Majesty the Queen and the Secretary of State for the Department of Work and Pensions, entered into a course of conduct in which she obtained for herself £19,143.86 in payments of Income Support, whereas she was not so entitled to such payments as she claimed using a false identity of Carol Naylor who was deceased.

Contrary to Common Law (Cheating the Revenue).

14. Cheating the Revenue -- contrary to Common Law

Between 21st of May 1990 and the 3rd August 2010 at Milton Keynes in the county of Buckinghamshire, with intent to defraud and to the prejudice of Her Majesty the Queen and the Secretary of State for the Department of Work and Pensions, entered into a course of conduct in which she obtained for herself £125,280.48 in payments of Disability Allowance and Severe Disablement Benefit, whereas she was not so entitled to such payments as she claimed using a false identity of Carol Naylor who was deceased.

Contrary to Common Law (Cheating the Revenue).

15. Cheating the Revenue -- contrary to Common Law

Between 10th December 2001 and the 1st January 2005 at Milton Keynes in the county of Buckinghamshire, with intent to defraud and to the prejudice of Her Majesty the Queen and the Secretary of State for the Department of Work and Pensions, entered into a course of conduct in which she obtained for herself £7,095.40 in payments Carers Allowance Benefit, whereas she was not so entitled to such payments as she claimed using a false identity of Yvonne Malone whilst also claiming benefits in other identities.

Contrary to Common Law (Cheating the Revenue).

16. Obtaining property by Deception – contrary to Theft Act 1968

Between 1st November 2005 and 14th January 2007, at Milton Keynes in the county of Buckinghamshire, Yvonne Doyle dishonestly obtained from Milton Keynes Council property, namely housing and council tax benefits to the value of £39,148.74 with the intention of permanently depriving Milton Keynes Council thereof by deception namely by falsely representing that she was Carol Naylor who was deceased.

Contrary to section 15 Theft Act 1968.

17. Fraud by false representation -- contrary to Fraud Act 2006

Between 15 January 2007 and 6th September 2009 at Milton Keynes in the county of Buckinghamshire, Yvonne Doyle committed fraud in that she made a false representation, namely that she was Carol Naylor who was in fact deceased, and entitled to make a claim for Housing and Council tax benefits of £20,410.70, intending to make gain for herself.

Contrary to sections 1 and 2 Fraud Act 2006.

18. Cheating the Revenue -- contrary to Common Law

Between 15th May 2000 and 16th January 2005 at Milton Keynes in the county of Buckinghamshire, with intent to defraud and to the prejudice of Her Majesty the Queen and the Secretary of State for the Department of Work and Pensions, Yvonne Doyle entered into a course of conduct in which she obtained for herself £10,345.00 in payments of Carers Allowance benefits, whereas she was not so entitled to such payments as she was unable to provide care to Grace Doyle due to her own disability.

Contrary to Common Law (Cheating the Revenue).

Description of the circumstances contained in the warrant
The following description of the circumstances in which the offences were committed, including the time, place and degree of participation in the offences by the requested person, is also contained within Part E:

“Between 2000 and the offending being discovered in December 2009 the defendant assumed the identity of a number of different people both living and dead and in those assumed details obtained credit from banks in the form of loans and credit card agreements as well as claiming welfare support from the state. To support those false identities the defendant obtained identity documents e.g. driving licences and passports in the false details using improperly obtained birth certificates. These offences were all committed from the defendant's various homes in Milton Keynes.

In committing these offences the defendant assumed the identity of Carol Naylor born 18/10/43 using a birth certificate in those details. The real Carol Naylor however had died at age of four. Using these details the defendant claimed income support, disability allowance, severe disablement allowance and mobility allowance from the state receiving in excess of £200,000.

The defendant assumed the identity of Bridgette Meally born 08/04/48 using an Irish passport in those details but bearing a photograph of the defendant. The real Bridgette Meally however was deceased by this time. Using these details the defendant claimed carers allowance from the state receiving in excess of £10,000.

The defendant assumed the identity of Yvonne Malone born 03/04/1950 using a UK driving licence in those details but bearing a photograph of the defendant. Using these details the defendant claimed carers allowance from the state receiving in excess of £7,000.

The defendant assumed the identity of Ann Carden born 17/04/48 using an original UK birth certificate, marriage certificate and driving licence in those details but bearing a photograph of the defendant. The real Ann Carden is alive, living in the Republic of Ireland and has, as a result of this offending, received visits from debt collectors. Using these details the defendant claimed carers allowance from the state in excess of £1,000. Using the same details of the defendant also obtained three credit cards accruing debts in excess of £11,000 which she did not pay. Using the same details the defendant took out a loan in the sum of £25,000 which has not been repaid.

The defendant assumed the identity of Angela Carden born 17/02/47 of obtaining an Irish driving licence in those details but bearing a photo of the defendant. The real Angela Carden is alive and living in Leeds.

The false identity documents (passports, driving licences etc) in the various different names were recovered when the police searched the houses of the defendant and her daughter who lived next door to her. When the police seized the various documents they were each given upon seizure a unique exhibit reference. The exhibit reference for each of the false identity documents which give rise to the charges are included in the charges in the following format (x JMG/*/*/*).

When interviewed the defendant answered no comment to all questions she was asked.”

Correspondence and Minimum Gravity
The issuing judicial authority has sought to invoke para. 2 of article 2 of the Framework Decision in respect of certain of the offences. The box in relation to fraud is ticked in Part E I of the warrant. Moreover, it is indicated in Part E II that the offences not covered by the ticking of the box relating to Fraud are those relating to possessing false identity documents with intent. In summary, para. 2 of article 2 is ostensibly being invoked in respect of offences 3, 4, 5, 6, 7, 8, 12, 13, 14, 15, 16, 17 & 18, respectively. It is not being invoked in respect of offences 1, 2, 9, 10 & 11, respectively.

The Ticked Box Offences

If para. 2 of article 2 is validly invoked then it will not be necessary for the Court to be satisfied as to correspondence in regard to those offences in respect of which it has been invoked. For para. 2 of article 2 to be properly invoked in respect of any particular offence it must be established that under the law of the issuing state the offence is punishable by imprisonment for a maximum period of not less than 3 years (s. 38(1)(b) of the Act of 2003). In that regard, it is stated in Part C 1 of the warrant that the offences of dishonestly obtaining services by deception are punishable in the issuing state by up to 5 years imprisonment in each case; that the offence of fraud by false representation is punishable in the issuing state by up to 10 years imprisonment; that the offence of obtaining a money transfer by deception is punishable in the issuing state by up to 10 years imprisonment, and that the maximum sentence that might be imposed in the issuing state for each offence of cheating the revenue is imprisonment for life. In those circumstances the minimum gravity threshold is clearly met in respect of all of the offences in regard to which para. 2 of article 2 of the Framework Decision has been invoked.

An issue was raised by the respondent in point no. 3 of his Points of Objection in relation to the offences of cheating the revenue. It was asserted, in effect, that the issuing judicial authority was not entitled to tick the box relating to fraud in respect of those offences. However, it was indicated at the hearing by senior counsel for the applicant that that point was no longer being maintained. The Court would simply remark that it would have been a very difficult point to sustain had it been proceeded with in light of remarks by the Supreme Court in Minister for Justice, Equality and Law Reform v Ferenca [2008] 4 IR 480 and also in Minister for Justice, Equality and Law Reform v Desjatnikovs [2009] 1 IR 618.

The Court is satisfied that para. 2 of article 2 has been validly invoked in respect of offences 3, 4, 5, 6, 7, 8, 12, 13, 14, 15, 16, 17 & 18, respectively (which includes the offences of cheating the revenue), and that correspondence does not require to be demonstrated in respect of those offences.

The Non Ticked Box Offences

In regard to the five offences relating to possessing false identity documents with intent the Court must be satisfied both as to correspondence and minimum gravity. The Court has been invited by counsel for the applicant to find correspondence with the offence in Irish law of having custody or control of a false instrument without lawful authority or excuse, contrary to s. 29(2) of the Criminal Justice (Theft and Fraud Offences) Act 2001 (hereinafter “the Act of 2001”). It is appropriate at this point to set out the relevant statutory provisions, and also relevant definitions.

The relevant statutory provisions

The relevant provisions are ss. 24, 29(2) and 30, respectively, of the Act of 2001 and they are all to be found within Part 4 of that Act.

Section 29(2) of the Act of 2001 is in the following terms:

“A person who, without lawful authority or excuse, has an instrument which is, and which he or she knows or believes to be, a false instrument in his or her custody or under his or her control is guilty of an offence.”

Sections 24 and 30, respectively, of the Act of 2001 provide relevant definitions. Section 24 is in the following terms:

“In this Part—

“false” and “making”, in relation to an instrument, have the meanings assigned to these words by section 30 ;

“instrument” means any document, whether of a formal or informal character (other than a currency note within the meaning of Part 5) and includes any—

(a) disk, tape, sound track or other device on or in which information is recorded or stored by mechanical, electronic or other means,

(b) money order,

(d) postage stamp issued or sold by An Post or any mark denoting payment of postage which is authorised by An Post to be used instead of an adhesive stamp,

(e) stamp of the Revenue Commissioners denoting any stamp duty or fee, whether it is an adhesive stamp or a stamp impressed by means of a die,

(f) licence or certificate issued by the Revenue Commissioners,

(g) cheque, including traveller's cheque, or bank draft,

(h) charge card, cheque card, credit card, debit card or any card combining two or more of the functions performed by such cards,

(i) share certificate,

(j) certified copy, issued by or on behalf of an tArd-Chláraitheoir, of an entry in any register of births, stillbirths, marriages or deaths or in the Adopted Children Register,

(k) certificate relating to such an entry,

(l) a certificate of insurance,

(m) passport or document which can be used instead of a passport,

(n) document issued by or on behalf of a Minister of the Government and permitting or authorising a person to enter or remain (whether temporarily or permanently) in the State or to enter employment therein,

(o) registration certificate issued under Article 11(1)(e)(i) of the Aliens Order, 1946 ( S.I. No. 395 of 1946 ),

(p) public service card,

(q) ticket of admission to an event to which members of the public may be admitted on payment of a fee;

“prejudice” and “induce”, in relation to a person, have the meanings assigned to those words by section 31 ;

“share certificate” means a document entitling or evidencing the title of a person to a share or interest—

(a) in any public stock, annuity, fund or debt of the Government or the State or of any government or state, including a state which forms part of another state, or

(b) in any stock, fund or debt of a body (whether corporate or unincorporated), wherever established.”

It has been urged upon the Court by counsel for the applicant that, in relation to the definition of “instrument” set out in s. 24 of the Act of 2001, the most relevant subpara. is subpara. d.

Turning then to s.30 of the Act of 2001, that section provides:

“(1) An instrument is false for the purposes of this Part if it purports—

(a) to have been made in the form in which it is made by a person who did not in fact make it in that form,

(b) to have been made in the form in which it is made on the authority of a person who did not in fact authorise its making in that form,

(d) to have been made in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms,

(e) to have been altered in any respect by a person who did not in fact alter it in that respect,

(f) to have been altered in any respect on the authority of a person who did not in fact authorise the alteration in that respect,

(g) to have been made or altered on a date on which, or at a place at which, or otherwise in circumstances in which, it was not in fact made or altered, or

(h) to have been made or altered by an existing person where that person did not in fact exist.

(2) A person shall be treated for the purposes of this Part as making a false instrument if he or she alters an instrument so as to make it false in any respect (whether or not it is false in some other respect apart from that alteration).”

The respondent’s submissions on correspondence

Counsel for the respondent submitted to this Court that the question as to what constitutes an instrument for the purposes of s. 29(2) of the Act of 2001 is a critical one. He referred to the specific wording of s. 24 of the Act of 2001 which defines it as “any document, whether of a formal or informal character (other than a currency note within the meaning of Part 5) and includes [the items listed (a) to (q) inclusive.] He points out that the list of items from (a) to (q) does not include a driving licence. In response to a challenge from the bench suggesting that by virtue of the use of the word “includes” items (a) to (q) cannot be regarded as constituting an exhaustive list, and must be regarded as being indicative or illustrative only and capable of being added to, counsel for the respondent raised what he characterised as “a point of statutory interpretation” and invoked the Latin maxim expressio unius est exclusio alterius; the express mention of one thing excludes all others. He submitted that if the Oireachtas had intended that the provision should be interpreted in the manner suggested by the Court, it would have adopted a standard formula used by parliamentary draftspersons whenever that is the legislator’s intention (such as the words italicised in the next sentence). In that event, the provision might have read “...any document, whether of a formal or informal character (other than a currency note within the meaning of Part 5) and without prejudice to the generality of the foregoing, includes [the items listed (a) to (q)]” (the Court’s emphasis). Counsel for the respondent stressed that no such formula or similar form of wording was employed in s.24 and that, absent the employment of some such formula, the maxim expressio unius est exclusio alterius must apply. Counsel for the respondent submitted that if the definition of instrument was intended to include any form of document there would have been no need for listing and particularising the very significant list of items at (a) to (q) inclusive. He asks rhetorically why, if the definition of instrument was intended to include any form of document, was it not left at “any document, whether of a formal or informal character”. It was urged that the Court must approach the matter on the basis that there is a presumption against the legislature legislating in vain.

The applicant’s submissions on correspondence

Counsel for the applicant submitted in response that a driving licence is an instrument for the purposes of s.24 of the Act of 2001, as a driving licence is a document, and more particularly a document of a formal nature. The definition of “document” in the Concise Oxford English Dictionary, 10th Ed., revised is:

“a piece of written, printed, or electronic matter that provides information or evidence or that serves as an official record.”

It was urged upon the Court that the primary rule of statutory interpretation is the plain meaning or literal rule. The Court should attempt to ascertain the true intention of the Oireachtas from the plain meaning of the words used. In Maguire v. DPP [2004] 3 I.R. 260 the Supreme Court considered the interpretation of ss. 2 and 3 of the Bail Act 1997. Hardiman J. described what he characterised as “the very basic canon of construction” by quoting from Bennion on Statutory Interpretation, (4th ed., London, 2002), wherein it was stated (at p.260)

“‘Prima facie, the meaning of an enactment which was intended by the legislator (in other words its legal meaning) is taken to be that which corresponds to the literal meaning.’

The learned author notes that the literal meaning corresponds to the grammatical meaning unless that meaning, deduced in the relevant context, is ambiguous. In that event, then any of the possible grammatical meanings may be described as the literal meaning. Authorities in several different centuries are cited for those basic propositions.”

Counsel for the applicant submitted that the rationale for the plain meaning rule was explained by Henchy J. in Wilson v. Sheehan [1979] 1 I.R. 423, at p.429:

“The reason for that rule is that, when statutes or other public or formal documents directed to the public at large, or to any member of the public at large, are being interpreted, it is to be assumed, in the absence of a counter-indication, that the words used in such document have been used in their popular rather than in any specialised or technical sense.”

It was further submitted that the fact that an alternative choice of words may exist, or that a statutory provision could have been expressed more clearly does not give rise to the inference that there is an ambiguity. In EMS v. Minister for Justice [2004] 1 IR 536 Hardiman J. held that even if the wording used in s.5 of the Illegal Immigrants (Trafficking) Act, 2000 were to be regarded as deficient or open to improvement, which he did not accept, that it would not avail the applicant as the words were clear and unambiguous. He stated:

“Considerable ingenuity was deployed by counsel for the applicant in suggesting alternative forms of words but these all beg the question, is the form of words actually used ambiguous or such as leads to an absurd result? It is not disputed here that the relevant word, in its ordinary and natural meaning is clear and unambiguous. No basis has been advanced for giving the word anything other than its ordinary and natural meaning. In these circumstances, it is immaterial that another form of words might have more clearly expressed the same thought.

In further support of his view Hardiman J. went on to refer to Hanafin v. Minister of Environment [1996] 2 IR 321 in which case Hamilton C.J. had said:

“The Attorney General has submitted that the Oireachtas in enacting legislation should not be restricted to the use of any particular formula or combination of words to give effect to its intention, and that provided the intention is clearly and unambiguously expressed, the failure to use words contained in other Acts is of no significance, that what was of importance was the intention expressed in the use of such words.

I agree with the submission of the Attorney General in this regard.”

Counsel for the applicant submitted that the words used in s.24 are clear and unambiguous – “an instrument is a document…. and includes any….”. A driving licence clearly comes within the plain and ordinary meaning of the word “document” and is not excluded from the plain meaning of the word by the express inclusion of certain other items as documents.

Counsel for the applicant contended that it is clear from O’H v. O’H [1990] 2 I.R. 558 and Royal Dublin Society v. Revenue Commissioners [2000] 1 IR 270 that it is only where the application of the literal or plain meaning rule gives rise to an ambiguity that statutory presumptions or maxims become relevant. In O’H v. O’H, Barron J. referred to Powys v. Powys [1971] 3 All E.R. 116 where Brandon J. (at p. 350) stated that:

“the true principles to apply are in my view, these; that the first and most important consideration in construing a statute is the ordinary and natural meaning of the words used; that, if such meaning is plain, effect should be given to it; and that it is only if such meaning is not plain but obscure or equivocal that resort should be had to presumptions or other means of explaining it.”

In Royal Dublin Society v. Revenue Commissioners [2000] 1 IR 270, Keane J. adopted the reasoning of Asquith J. in Allen v. Emmerson [1944] K.B. 362 including his reference to the speech of Rigby L.J. in Anderson v. Anderson [1895] 1 QB 749 wherein it was stated:

“The main principle upon which you must proceed is, to give all the words their common meaning: you are not justified in taking away from them their common meaning, unless you can find something reasonably plain upon the face of the document itself to show that they are not used with that meaning, and the mere fact that general words follow specific words is certainly not enough.”

The Court’s attention was further drawn to McDermott (Inspector of Taxes) v. McGrath [1988] I.R. 258 wherein Finlay C.J. noted:

“The function of the courts in interpreting a statute of the Oireachtas is, however, strictly confined to ascertaining the true meaning of each statutory provision, resorting in cases of doubt or ambiguity to consideration of the purpose and intention of the Legislature to be inferred from other provisions of the statute involved, or even of other statutes expressed to be construed with it. The courts have not got a function to add to or delete from express statutory provisions so as to achieve objectives which to the courts appear desirable. In rare and limited circumstances words or phrases may be implied into statutory provisions solely for the purpose of making them effective to achieve their expressly avowed objective.”

In counsel for the respondent’s submission, the respondent has sought to argue that the definition of “instrument” is limited to the documents listed at paras. (a) to (q) in s. 24 of the Act of 2001. It was submitted by counsel for the applicant that to interpret the section in that manner is to fail to have regard to the plain meaning of the words contained in the section. Moreover, it was submitted by counsel for the applicant, that subparas.(a) to (q) include items which may not be commonly regarded as coming within the meaning of the word document, such as a stamp.

The Court was further referred to O’Connell v. An tÁrd Chláraitheoir [1997] 1 IR 377. Counsel for the applicant submitted that, unlike the situation in that case, the present case is not one involving a word (in this instance “document”), the meaning of which was expanded by the inclusion of additional items which would not come within the plain and ordinary meaning of the word. In O’Connell v. An tÁrd Chlaraitheoir, the interpretation of the word “occupier” in s.38 of the Births and Deaths Registration (Ireland) Act, 1880 fell to be considered. S.38 provided:

"The term 'occupier' includes the governor, keeper, master, matron, superintendent, or other chief resident officer of every public institution, and where a house is let in separate apartments or lodgings includes any person residing in such house who is the person under whom such lodgings or separate apartments are immediately held or his agent, and by such term shall all the persons above mentioned be described when acting as informants."

It was held by Laffoy J. that:

“It is obvious that the draftsman doubted that the word "occupier" in its ordinary meaning would include the various officials of public institutions mentioned in s. 38 and he expressly included them in the definition. The draftsman having expressly included the named officials, it must be implied that other officials and employees of such public institutions are excluded.”

Counsel for the applicant submitted that O’Connell v. An tÁrd Chlaraitheoir can be distinguished on the basis that the words which followed “includes” in s. 38 are words which would not be regarded as coming within the ordinary meaning of the word occupier. For example, the occupier of a hospital would more usually be regarded as being the HSE, or limited liability company running a private hospital and not the matron. On that basis, Laffoy J. held that the Oireachtas intended only to expand the definition of occupier to the extent stated. In contrast, the submission of the respondent, to the effect that a driving licence does not come within the definition of “instrument” would require the Court to restrict the meaning of the word “document” to the matters expressly referred to as being included in the definition thereof, to the exclusion of other documents, including driving licences.

The Court was further referred to M v. D [1998] 3 I.R. 175, in which Moriarty J. held that to apply the maxim of statutory interpretation, expressio unius exclusio alterius est, to s. 9 of the Proceeds of Crime Act 1996 would be to frustrate the intention of the Oireachtas. (It has since been held that the Proceeds of Crime Act 1996 is a penal statute: McK. v. D. [2004] 2 ILRM 419).

The Court was also referred to Inspector of Taxes v Arida Ltd [1992] 2 I.R. 155 in which the expression “any proceeding" in O. 58, r. 1 of the Rules of the Circuit Court was considered and in which that rule was interpreted by reference to the intention of the Rules Committee. Murphy J. went on to refer to The State (Minister for Lands & Fisheries) v. Judge Sealy [1939] I.R. 21 where Byrne J. at p.34 concluded that “taking the Rules as a whole, the expression 'any proceeding in the Court' must be held to include all proceedings of a civil or criminal nature which the Court has power to entertain . . .". It was further held by Murphy J. that:

“the words "any proceeding" contained in O. 58, r. 1 of the Circuit Court Rules were of wide import and the inclusion of the power to award costs in one statutory provision and its exclusion in another did not warrant an inference, on the basis of the maxim

expressio unius

, that the legislature intended that the extensive power of the Circuit Court should be curtailed.”

Counsel for the applicant submitted that in the present case the clear intention of the Oireachtas was to define instrument by reference to “any document, whether of a formal or informal character” and to expand the definition to “include any” of the items listed at (a) to (q), e.g. “disk, tape, sound track or other device on or in which information is recorded or stored by mechanical, electronic or other means” and a “stamp”, items which might not generally be regarded by the public as coming within the definition of “a document” (the Court’s emphasis).

Counsel for the applicant agreed with counsel for the respondent on one point, namely that the Oireachtas must be presumed not to have legislated in vain. The Court was referred to County Council of the County of Cork v. Whillock [1993] 1 I.R. 231, wherein it was stated:

“There is abundant authority for the presumption that words are not used in a statute without a meaning and are not tautologous or superfluous, and so effect must be given, if possible, to all the words used, for the legislature must be deemed not to waste its words or say anything in vain.”

However, it was urged upon the Court by counsel for the applicant that if the submission of the respondent, that a document which is not included in the list of documents at para. (a) to (q) is not “an instrument”, it follows that the phrase, “any document, whether of a formal or informal character (other than a currency note within the meaning of Part 5) and includes any - ” contained in s. 24 is superfluous and was inserted by the Oireachtas in vain. The only “document” as interpreted by its plain and ordinary meaning which is excluded from the definition of “an instrument” in s. 24 of the Act of 2001, is “a currency note within the meaning of Part 5” (the Court’s emphasis).

In conclusion, Counsel for the applicant contends that the definition of “an instrument” within s. 24 of the Act of 2001 must be interpreted according to the plain and ordinary meaning of the word and that it includes a driving licence (the Court’s emphasis).

The Court’s decision on correspondence

The Court is not persuaded that counsel for the respondent is correct in suggesting that in the circumstances of this case resort must be had to the maxim expressio unius est exclusio alterius in the interpretation of s. 24 of the Act of 2001. Certainly, where the maxim applies, items not on a list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative or indicative, and not exclusionary. This is usually indicated by a word such as "includes" or "such as", and in this case the “includes” is to be found.

The Court agrees with counsel for the applicant that there is no need to have recourse to the expressio unius est exclusio alterius maxim where the literal meaning of the Act is plain and unambiguous. The Court further agrees that in the specific case of s. 24 the meaning of the provision is plain and unambiguous. “Instrument” means “any document, whether of a formal or informal character (other than a currency note within the meaning of Part 5) and includes [the Court’s emphasis] any …” of the items listed (a) to (q).

It is, however, necessary to address the question asked rhetorically by counsel for the respondent, namely why, if the definition of instrument was intended to include any form of document (other than a currency note within the meaning of Part 5), was it not left at “any document, whether of a formal or informal character (other than a currency note within the meaning of Part 5)?” The suggested answer was, it will be recalled, that there is a presumption against the legislature legislating in vain.

The Court does not agree that the list (a) to (q) is redundant if it was indeed the intention of the Oireachtas, as this Court believes it to have been, to include within the definition any document, whether of a formal or informal character (other than a currency note within the meaning of Part 5). In the modern age within which we live there are many forms of “record” or “recording” that might not immediately occur to one as constituting a document in the traditional sense of paper or parchment, e.g., a “disk, tape, sound track or other device on or in which information is recorded or stored by mechanical, electronic or other means” [item (a)], or “a public service card” [item p] which nowadays is likely to be credit card sized and made of plastic, or indeed “a charge card, cheque card, credit card, debit card or any card combining two or more of the functions performed by such cards” [item h] which, again, are invariably small pieces of plastic. In addition, one often finds in modern life that even paper documents bear enhancements or embellishments or physical attachments or modifications in the form of ink brands, or seals, or certificates, or stamped impressions or adhesive stamps, that might not in themselves immediately occur to the man in the street as being either documents in their own right, or as forming an integral part of another document to which they are applied. For example, a modern passport or identity document which may be used instead of a passport may be not just a paper record but may also contain embedded electronic data including bio-metric data. Moreover, in modern society money may be held or transferred in so many ways other than in banknotes that there might well be uncertainty as to whether certain financial type records come within the definition of currency notes e.g. a “cheque, including traveller's cheque, or bank draft” [item g].

Of course, it is not appropriate for this Court to speculate as to the precise rationale for the inclusion of each and every item on the list (a) to (q). The examples given represent reasonable, and immediately obvious possibilities and are suggested for the sole purpose of demonstrating that the inclusion of a list such as (a) to (q) in this case can serve a definite purpose, namely the dispelling of doubt, even if preceded by a general definition which embraces or includes the items on the list. If, as the Court believes, the inclusion of the list (a) to (q) is intended to dispel doubts or possible doubts, then it is certainly not redundant and the legislature has not legislated in vain.

In arriving at this conclusion I have considered the provision in question first in its own stead, then within its context in Part 4 of the Act of 2001, and then having regard to the Act of 2001 read as a whole. I can find not basis or rationale for believing that the legislature intended to confine the definition of instrument to the documents listed (a) to (q) respectively, and that, for example, forgery itself, or the possession of a forgery or (adopting the old language) the “uttering” of a forgery of a will, or of a contract, or, as in the present case, of a driving licence, could not be prosecuted under the Act of 2001.

In regard to the suggestion that significance should be attached to the non-user of a formula such as that suggested, i.e., “without prejudice to the generality of the foregoing”, I respectfully agree with, and adopt, the approach of Hardiman J in EMS v. Minister for Justice [2004] 1 IR 536 and hold that even if the wording used in s.24 of the Act of 2001 were to be regarded as in some respect deficient or open to improvement, it does not matter in circumstances where the words actually used are nonetheless clear and unambiguous. I regard s. 24 as being clear and unambiguous in its meaning. Instrument includes any document, whether of a formal or informal character (other than a currency note within the meaning of Part 5) and therefore must include a driving licence. The fact that a driving licence does not appear in the list (a) to (q) is immaterial in this Court’s view.

In all the circumstances of the case, the Court is disposed to find correspondence in the case of offences 1, 2, 9, 10 & 11, respectively, with the offence in Irish law of having custody or control of a false instrument without lawful authority or excuse, contrary to s. 29(2) of the Act of 2001.

Minimum Gravity

In so far as offences 1, 2, 9, 10 & 11, respectively, are concerned the threshold for the purposes of minimum gravity is that provided for in s. 38(1)(a)(i) of the Act of 2003 namely that under the law of the issuing state the offence is punishable by imprisonment or detention for a maximum period of not less than 12 months. The Court notes from Part C of the warrant that under the law of the issuing state the offence is punishable by imprisonment for up to ten years. The minimum gravity threshold is therefore comfortably met in the case of these offences.

Alleged contradictions / insufficient particularity in the warrant
These are the subject of the complaints made in point no. 5 of the respondent’s Points of Objection. The complaints made are referable to the obligations upon an issuing State per s. 11(1A) of the Act of 2003 as amended, and in particular the requirement in subpara.(f) thereof that the warrant should specify the circumstances in which the offence was committed or is alleged to have been committed, including the time and place of its commission or alleged commission, and the degree of involvement or alleged degree of involvement of the person in the commission of the offence. Moreover, the factual basis on which these complaints are made are:

(i) although in relation to offences 1 & 2, respectively, the actual description of the charges in the warrant suggests that two different driving licences in the name of Ann Carden were used, the description of the circumstances in which the offences were committed that appears later in Part E refers to a “driving licence” (singular) in the name of Ann Carden.

(ii) although in relation to offences 12, 13, 14 and 15 the conduct complained of is alleged to have occurred between certain dates, the time frame alleged in the actual description of the charges in the warrant does not exactly correspond with the that set out in the description of the circumstances in which the offences were committed that appears later in Part E. In particular, in so far as charges 13 & 14 are concerned the date range is wider than the description of the circumstances suggests it should be.

A similar point to (ii), though not specifically pleaded, is raised in relation to the dates set out in charge 18.

Counsel for the respondent, while not abandoning the point in relation to offences 12, 15 and 18 conceded that the point was very much stronger in relation to offences 13 & 14.

(iii) It is further complained, and again this is not specifically pleaded, but the Court nevertheless allowed it to be ventilated, that there was also uncertainty in relation to offences 10 and 11 as to exactly what passports in the name of Bridgette Meally are referred to, and in particular whether she had both an Irish and U.K. passport, and as to whether charges 10 and 11 correctly relate to an Irish passport (in the case of offence 10 and a U.K. passport (in the case of offence 11) in the name of Bridgette Meally.

Counsel for the respondent submitted that his client is entitled to know precisely the offences for which she is being surrendered, and the circumstances in which they were committed, including the times and dates concerned, and he relies upon s. 11(1A)(f) of the Act of 2003 and also upon this Court’s judgment in Minister for Justice, Equality and Law Reform v Baron [2012] IEHC 180 (unreported, High Court, Edwards J., 4th May, 2012) in support of that.

The Court is completely satisfied that there is nothing in the first point relating to offences 1 & 2, respectively. Additional information, arising out of a s. 20(1) request made by this Court, was received from the issuing state dated the 20th July, 2012 which confirms that there are indeed two false UK driving licences in the name of Ann Carden, and that they are the subject of separate charges, i.e. charges 1 & 2 respectively. The charges are correct and they contain different exhibit tracking references which enables the two incidents to be discriminated. It is conceded that the description of the circumstances that appears later in Part E should refer to “two driving licences”. The Court considers that the position is quite clear at this stage and there is adequate compliance in terms of the s.11(1A)(f) requirement. To the extent that the original warrant was inaccurate and contained the discrepancy in question the Court would in any event have been prepared to regard it as the omission of a non-substantial detail, alternatively a technical failure to comply with the Act, which it could overlook under s.45C of the Act of 2003 in circumstances where it is satisfied that no injustice would be caused to the respondent. However, in circumstances where, as I have said, I consider that the position has now been clarified and there is in fact compliance with s. 11(1A)(f) it is not in fact necessary to have recourse to section 45C.

Counsel for the applicant contended in response to the date discrepancies that the Court could and should rely on the actual description of the charges, rather than the explanatory material that follows later in Part E. Whatever about the force of her eloquent arguments in support of that contention, which the Court considers it unnecessary at this point to rehearse in circumstances where events have overtaken them, the position has been clarified and the matter put beyond doubt by the receipt of additional information from the requesting state dated the 20th July, 2012. This information clarifies,in relation to offences 13 & 14, that the date ranges in the charges are correct, and that those in the description of the circumstances are incorrect and should be read as “Between 1990 and the offending being discovered in December 2009 the ..etc”. While the additional information does not specifically address the complaint in so far as charges 12, 15 and 18 are concerned, the date range in the description of the circumstances in the warrant does at least embrace the date ranges in the actual description of the charges, though there is not an exact correlation. However, I am satisfied that the discrepancy is non-substantial and that it can be overlooked under s. 45C, in circumstances where I am satisfied that no injustice would be caused to the respondent. Nothing has been suggested, in any concrete way, to suggest that these minor discrepancies have caused, or might in the future cause, the respondent any prejudice in terms of raising issues such as specialty, ne bis in idem or any other defence that might have been open to her in resisting her surrender before this Court, or in defending the proceedings in the issuing state in the event of her surrender.

In relation to the complaints based on counts 10 and 11, once again the position has been clarified by additional information dated the 20th July ,2012 and it is confirmed that the actual description of the charges is correct and that the description of the attendant circumstances should have referred to “an Irish passport and a UK passport in those details”. In all the circumstances there is in the Court’s view sufficient compliance with s. 11(1A)(f) at this stage

The Court is not therefore disposed to uphold point of objection no. 5 either in whole or in part.

Conclusion
It is appropriate that the respondent should be surrendered on all eighteen offences covered by the European arrest warrant, and the court will make an order to that effect under s. 16(1) of the Act of 2003.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Minister for Justice and Equality -v- Doyle [2012] IEHC 451 (26 October 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H451.html Cite as: [2012] IEHC 451

High Court of Ireland Decisions