ANALYSIS:WHILE MANY arguments were put forward why former Workers' Party president Seán Garland should not be extradited to the US, the High Court only considered one – that he should be prosecuted in Ireland instead.
The conclusion of the High Court reflects Mr Justice John Edwards’s view that in this age of modern communications, where much serious fraud is transnational, the common law must evolve to reflect the need to be able to prosecute in the jurisdiction where a substantial portion of the crime is committed.
This could be necessary to defeat a procedural argument, for example, that because the money at the centre of fraud allegations ended up in a bank account abroad, that is where the alleged offence occurred and it should not be prosecuted where some or all the deception took place.
Counsel for Garland had argued his extradition was prohibited under section 15 of the 1965 Extradition Act, which states: “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.”
Mr Justice Edwards found that Garland lived in Ireland while the alleged conspiracy was being conducted, many of the alleged transactions took place in Ireland, non-Irish alleged co-conspirators travelled to Ireland, and one of the alleged objectives of the conspiracy was to make money for the Official IRA, a proscribed organisation in Ireland.
Therefore the alleged offence for which extradition was sought was committed in Ireland and would be prosecutable here.
The US authorities had argued the conspiracy was against the integrity of its currency, which was not disputed. This illustrates the fact that crimes involving currency, and financial transactions in general, are increasingly transnational. A deception can take place in one country with the funds withdrawn in another. In his judgment Mr Justice Edwards drew heavily on English judgments that are grappling with this new reality. “Questions of jurisdiction, although involving substantive law, contain a strong procedural element and the court must recognise the need to adopt its approach to such questions in the light of developing and advancing communications technology,” he said.
“The Irish courts should, as a matter of good sense in the times in which we live, be entitled to assert jurisdiction in respect of a conspiracy formed in Ireland to effect harm by means of an unlawful act or acts to be committed principally in, or against, another state, where it can be reasonably asserted that the conspiracy, if carried into effect, would be harmful, or potentially harmful, either directly or indirectly, to the interests of this State,” he said.
In opposing the extradition, Seán Garland’s counsel, Michael Forde SC, argued that his fundamental rights would be violated in that he would be imprisoned with little prospect of bail, exposed to a harsh prison regime and treated as an enemy alien; that the alleged offences were political offences arising from the partition of Korea and its consequences, and therefore not extraditable; that the relevant article of the extradition treaty was void, in that it did not require the establishment of a prima facie case against the accused; and that he had been prejudiced by excessive delay. In the event the judge did not rule on these arguments, which now remain to be considered another day.