The matter came before the High Court this Tuesday
THE extradition of a man who acted as the “controlling mind” in a “multimillion-euro fraud” perpetrated against the UK is of very significant public interest, the High Court has heard.
Daniel O’Connell, aged 65, with an address at Ballybrack, Clonlara, Co Clare and Roseneath, Corbally, Limerick was arrested in 2017 on foot of a European Arrest Warrant (EAW) issued by UK authorities.
A sentence of imprisonment was imposed on Mr O’Connell for non-payment of a confiscation order imposed as an integral part of a sentence for five offences of being knowingly concerned in the fraudulent evasion of Value Added Tax, contrary to Section 72(1) of the Value Added Tax Act 1994, in August 2000 at the Crown Court sitting at Middlesex Guildhall.
A confiscation order may be made when the defendant is found to have benefited from his criminal conduct.
The warrant which was issued by Westminster Magistrates Court in London in 2016 outlined Mr O'Connell involvement with five companies all of which became “missing traders” and for all of which he was acting as the “controlling mind”.
The warrant states that the five companies all failed to submit a VAT return and/or failed to account for any VAT to Her Majesty’s Customs & Excise during periods when their respective trading was substantial.
The five “missing trader” companies made sales of over £119 million on which the VAT due would have been over £20 million from 1997 to 1999. However, the companies accounted for only £17,086.00 in VAT during the relevant period.
Mr O’Connell was sentenced to eight years imprisonment for these offences in August 2000 but was released on licence in March 2003.
However, as part of his overall sentence, Mr O’Connell was also made subject to a confiscation order for almost £6 million for which an additional sentence of 7 years’ imprisonment in default of payment was imposed in January 2003.
To date £354,407.41 has been paid towards Mr O'Connell's confiscation order.
By September 2016 this confiscation order had a balance outstanding of nearly £6 million plus accrued interest of over £5.8 million.
The High Court heard, this Tuesday, that under English law, this sentence is an integral part of the overall sentence imposed upon Mr O’Connell in respect of these offences, and it runs consecutively to the original sentence because the confiscation order remained outstanding.
The arrest warrant states that because Mr O’Connell failed to pay the confiscation order in full by May 2004, his default sentence was activated and his extradition is sought so that he can be returned to prison in order to serve this part of the overall sentence.
Dr Michael Forde SC, for Mr O’Connell, has been outlining to the court objections to the surrender of his client to the UK. The barrister submitted there was a 17-year gap between his client’s conviction and arrest and therefore the confiscation order was invalid because of undue delay.
This, he submitted, breached Article 6.1 Article 8 and in particular Article 49.3 of the European Convention on Human Rights which required penalties not to be disproportionate.
The lawyer called it “inexplicable” why the UK authorities with the assistance of Irish authorities could not locate his client when his licence expired in 2007 as he had lived openly in Clare during this time and had made no attempt to hide his identity.
Dr Forde called this “bureaucratic inertia at its worse”.
There was not “a snowballs” chance on the evidence that his client could make any payment on the confiscation amount, he said. “The £13 million that he is now expected to pay and the detention for failure to pay it is grossly disproportionate,” he said.
Mr O’Connell was being imprisoned because he did not have money, Dr Forde said, adding that it was discrimination on the basis of wealth and his surrender should be refused in these circumstances.
Ronan Kennedy BL, Counsel for the Minister for Justice, said that the High Court as an executing court cannot refuse to execute the EAW and the respondent had not identified a right he was at risk of being deprived of if he was surrendered.
Mr O’Connell was being sought by the UK for the purpose of a custodial sentence and was not facing trial.
He emphasised that there was a huge public interest that people who had benefited from financial crime should be brought to justice and be required to serve the sentences lawfully imposed upon them under the law of other member states.
Mr Kennedy submitted that this was a multimillion-euro fraud perpetrated against another member state where Mr O’Connell was the controlling mind behind that fraud.
Even though this was not a crime of violence, there was still a very significant public interest in Mr O'Connell been extradited back to the UK, he said.
In conclusion, Mr Kennedy said it must have been obvious to the respondent that the UK authorities had a strong interest in bringing him to justice and questioned whether it was really acceptable that he thought the proceedings had come to a conclusion.
The hearing continues on Friday before Ms Justice Aileen Donnelly who remanded Mr O’Connell on continuing bail until then.