Ali Charaf Damache v DPP and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 31 January 2014
• Neutral Citation: [2014] IEHC 114
• Court: High Court
• Date: 31 January 2014

[2014] IEHC 114

THE HIGH COURT

Record No: 670 J.R./2013

Damache v DPP & Ors

JUDICIAL REVIEW

APPROVED

Mr. Justice Edwards

JUDGMENT

Between:

ALI CHARAF DAMACHE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

IRELAND

AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

NOTICE PARTY

AG v DAMACHE UNREP 11.2.2013 [TRANSCRIPT NOT AVAILABLE]

EXTRADITION ACT 1965 S26

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S29

RSC O.84

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 40.3

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EXTRADITION ACT 1965 S15

EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) ACT 2012 S27

OFFENCES AGAINST THE STATE ACT S29(1)

CRIMINAL JUSTICE ACT 2006 S71

CRIMINAL JUSTICE ACT 1976 S71

CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S6

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

PROHIBITION OF INCITEMENT TO HATRED ACT 1989 S2

POST OFFICE (AMDT) ACT 1951 S13

CRIMINAL LAW ACT 1976 S5

EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) BILL 2011 S25

DAMACHE v DPP & AG 2012 2 IR 266

PROSECUTION OF OFFENCES ACT 1974 S4(3)(B)

AG v GARLAND UNREP EDWARDS 27.1.2012 2012/3/541 2012 IEHC 90

DAMACHE v DPP & ORS UNREP 2012 2 IR 266 2012 2 ILRM 153 2012 IESC 11

CONSTITUTION ART 34.1

G v DPP 1994 1 IR 374

R v INLAND REVENUE COMMISSIONERS, EX PARTE NATIONAL FEDERATION OF SELF-EMPLOYED & SMALL BUSINESSES LTD 1982

AGBONLAHOR v MIN FOR JUSTICE 2007 1 ILRM 58

C (D) v DPP 2005 4 IR 281

G v DPP 1994 1 IR 374

EXTRADITION ACT 1965 S15(2)

EXTRADITION ACT 1965 S15(1)

STATE (KILLIAN) v AG 1957 92 ILTR 182

JUDGE v DPP 1984 ILRM 224

SAVAGE v DPP 1982 ILRM 385

STATE (MCCORMACK) v CURRAN & ORS 1987 ILRM 225

H v DPP 1994 2 ILRM 285

INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE 1989 IR 149

H (LG) v MIN FOR JUSTICE UNREP EDWARDS 30.1.2009 2009/24/5913 2009 IEHC 78

HUSSAIN v MIN FOR JUSTICE UNREP HOGAN 13.4.2011 2011/26/6875 2011 IEHC 171

EVISTON v DPP 2002 3 IR 260

E (G) v DPP 2009 1 IR 801

RAWSON v MIN FOR DEFENCE UNREP SUPREME 1.5.2012 2012/40/11874 2012 IESC 26

MALLAK v MIN FOR JUSTICE 2012 3 IR 297

EVISTON v DPP 2002 3 IR 260

CRIMINAL LAW AMDT ACT 1935 S2(2)

C (C) v IRELAND 2006 4 IR 1

O'DONOGHUE v BORD PLEANALA 1991 ILRM 750

STATE (SWEENEY) v MIN FOR THE ENVIRONMENT 1979 ILRM 35

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

SHUM v IRELAND 1986 ILRM 593

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41

STATE (LYNCH) v COONEY 1982 IR 337

STATE (DALY) v MIN FOR AGRICULTURE 1987 IR 165

INTERNATIONAL FISHING VESSELS LTD v MIN FOR THE MARINE 1989 IR 149

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD 1997 2 IR 489

STATE (CREEDON) v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

JORDAN v UK 2003 37 EHRR 52

H v DPP 1994 2 IR 589

S (N) v ANDERSON & ORS 2008 3 IR 417

SIRITANU v DPP UNREP DUNNE 2.2.2006 2005/55/11472 2006 IEHC 26

UN CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 ART 31

MACCURTAIN, IN RE 1941 IR 83

STATE (BOLLARD) v GOVERNOR OF PORTLAOISE PRISON UNREP KENNY 4.12.1972

KAVANAGH v IRELAND 1996 1 IR 321

BYRNE v GOVERNMENT OF IRELAND UNREP SUPREME 7.12.1999

DPP v QUIGLEY UNREP CHARLETON 14.3.2007 2007/20/4140 2007 IEHC 92

DUNPHY (A MINOR) v DPP 2006 1 ILRM 241 2005/18/3760 2005 IESC 75

CARLIN v DPP 2010 3 IR 547

WARD v DPP UNREP SUPREME 18.12.1997 1998/33/13054

H (H) v DPP & COMMISSIONER OF AN GARDA SIOCHANA UNREP PEART 31.1.2012 2012/17/4834 2012 IEHC 41

EXTRADITION ACT 1965 S15(1)(B)

EXTRADITION ACT 2003 (UK) S19(B)

EXTRADITION ACT 2003 (UK) S83(A)

POLICE & JUSTICE ACT 2006 (UK) S42

POLICE & JUSTICE ACT 2006 (UK) SCHED 13

CRIME & COURTS ACT (UK) 2013 S50

CRIME & COURTS ACT (UK) 2013 S20

EXTRADITION ACT 2003 (UK) S83(A)(3)

EXTRADITION ACT 2003 (UK) S83(B)

EXTRADITION ACT 2003 (UK) S83(C)

EXTRADITION ACT 2003 (UK) S83(D)

DAMACHE v DPP & ORS 2012 2 ILRM 153

SPILIADA MARITIME v CANSULEX 1987 AC 460

EXTRADITION ACT 1965 S17(1)

EUROPEAN ARREST WARRANT ACT 2003 S41

R (BERMINGHAM) v DIRECTOR OF THE SERIOUS FRAUD OFFICE 2007 QB 727

MIN FOR JUSTICE v E(T) UNREP EDWARDS 19.6.2013 2013 IEHC 323

MIN FOR JUSTICE v E(T) UNREP EDWARDS 24.1.2014 2014 IEHC 51

EXTRADITION ACT 2003 (UK) PART 2

Judicial review - Criminal law - Terrorism offences - Extradition – Decision not to prosecute - Reasons for decision - Reasonability - Proportionality - Impact on Constitutional and convention rights - Fair procedures - Right of access to the courts - Certiorari - Constitution of Ireland - European Convention on Human Rights - Extradition Act 1965

Facts: This matter concerned an application for leave to apply for various reliefs and remedies by way judicial review. The application was brought in the context of extradition proceedings in which the applicant was before the Court pursuant to a warrant of arrest issued by the High Court on the 15th February 2013, on foot of a request made by the United States of America in accordance with Part II of the Extradition Act of 1965 (‘the 1965 Act’). The extradition was sought in respect of the applicant”s alleged involvement in a terrorism-related conspiracy which he was said to have orchestrated from within Ireland. At the time of this judgment, the warrant of arrest had been executed and the committal hearing under s. 29 of the 1965 Act was pending.

The applicant sought, inter alia, an order of certiorari quashing the decision of the first named respondent not to prosecute the applicant in respect of the alleged offences for which his extradition was sought by the United States and an order of certiorari quashing the decision of the first named respondent refusing to give reasons for declining to prosecute. Various declaratory reliefs to this effect were also sought. It was argued that the first named respondent”s refusal to prosecute was unreasonable, disproportionate and made without proper regard to the impact that the extradition of the applicant would have on his constitutional and Convention rights. In regard to the refusal to give reasons for declining to prosecute the applicant, it was argued that this was a breach of his right to fair procedures as protected by Article 40.3 of the Constitution of Ireland and had unduly hindered his right of access to the courts, as protected by Article 38.1 of the Constitution.

The respondents argued that in making a decision whether or not to prosecute the applicant, there was no obligation on the part of the first named respondent to take into account a number of extraneous considerations that were raised by the applicant. For instance, the applicant had argued that the first named respondent was compelled to consider the trial process and penal conditions in the United States of America, but this contention was rejected by the respondents. The respondents also argued that first named respondent was under no obligation to provide reasons for refusing to prosecute the applicant due to its unique position in relation to the institution of criminal proceedings. In this regard, it was pointed out that the relevant case law made it clear that there is no obligation on the first named respondent to give reasons when issuing certificates directing trial before the Special Criminal Court.

Held by Edwards J. that for leave to apply for judicial review to be granted, the applicant had to demonstrate an arguable case.

It was held that the applicant”s contention that the refusal to prosecute him within Ireland was unreasonable, disproportionate and made without proper regard to the impact that the extradition of the applicant would have on his constitutional and Convention rights, was unstateable. It was said that this decision was one that entirely benefited the applicant, not least because there was no possibility that he could then be extradited under the law as it was at the time. It was also noted that this decision was taken at a time when there was no indication that the law of extradition would shortly be amended. In regards to the first named respondent”s decision not to give reasons for refusing to give reasons for its refusal to prosecute, it was held that the relevant case law made it clear that there was no such obligation unless there was evidence of mala fides, abdication of functions or impropriety. It was also said that even if that was not the case, the applicant could only be compelled to give reasons where there was a legitimate basis for complaint. Such a basis did not exist, however, because it had already been found that the decision not to prosecute the applicant was one that was to his benefit. There was, therefore, no arguable case advanced in this regard

Application for leave refused.

1 JUDGMENT of Mr. Justice Edwards delivered on the 31st day of January 2014

Introduction:

2 1.The Court is concerned with an application, on notice to the respondents and notice party named above upon the direction of the High Court, (White (Michael) J.) to whom the matter was initially mentioned ex parte, for leave to apply for various reliefs and remedies by way judicial review. It arises in the context of extradition proceedings pending before the High Court and entitled The Attorney General v, AH Charaf Damache (Record No. 2013/51 EXT), in which the applicant is before the Court pursuant to a warrant of arrest issued by the High Court on the 15 ^th of February, 2013, under s. 26 of the Extradition Act 1965 as amended by the Extradition (Amendment) Act 1994, the Extradition...