Attorney General v Davis

JurisdictionIreland
JudgeMr. Justice Mahon
Judgment Date28 February 2017
Neutral Citation[2017] IECA 50
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2017] IECA 50 RECORD NO. 2016/419
Date28 February 2017

[2017] IECA 50

THE COURT OF APPEAL

(CIVIL)

Mahon J.

Birmingham J.

Mahon J.

Edwards J.

Neutral Citation Number: [2017] IECA 50

RECORD NO. 2016/419

IN THE MATTER OF THE EXTRADITION ACT 1965, AS AMENDED

BETWEEN/
ATTORNEY GENERAL
RESPONDENT
- AND–
GARY DAVIS
APPELLANT

Extradition – Surrender – Human rights – Appellant seeking to appeal against an order of the High Court directing his surrender to the United States – Whether trial judge erred in deciding that surrender of the appellant for extradition did not give rise to a real risk of a violation of his Article 40.3 rights under the Constitution

Facts: The appellant, Mr Davis, by order of the High Court (McDermott J) on the 12th August 2016, was directed to be surrendered to the United States after the expiration of fifteen days, subject to a stay in the event of an appeal to the Court of Appeal. The appellant filed a Notice of Appeal against the said order and judgment. The appellant limited the appeal to the third of three grounds stipulated in the Notice of Appeal. That ground was as follows: The effects of incarceration in the US, both pre-trial and following sentence if convicted, upon the appellant as a person with Asperger’s Syndrome suffering from depression and anxiety. The appellant submitted that the trial judge erred in deciding that surrender of the appellant for extradition did not give rise to a real risk of a violation of his Article 40.3 rights under the Constitution, his rights under Article 3 ECHR, his rights under Article 8 ECHR and his rights under Article 40.3.2 of the Constitution to the integrity of the human mind and personality.

Held by Mahon J that the decision of the trial judge (in so far as it related to the ground of appeal pursued) was based on a fact or facts found by him following a detailed and thorough consideration of evidence and information, including medical evidence and evidence relating to the US federal prison system. Mahon J held that the appeal sought to review the judgment and order of the High Court in a manner which was not permitted in law; the subject matter of the appeal was not based upon a point of law.

Mahon J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Mahon delivered on the 28th day of February 2017
1

By order of the High Court (McDermott J.) on the 12th August 2016 the appellant was directed to be surrendered to the United States of America (‘U.S.’) after the expiration of fifteen days, subject to a stay in the event of an appeal to this Court which said stay remains operative pending the conclusion of this appeal.

2

The appellant filed a Notice of Appeal against the said order and the entire of the judgment of the learned High Court judge of the said date. At the opening of the appeal before this Court Mr. O'Kelly S.C. on behalf of the appellant limited the appeal to the third of three grounds stipulated in the Notice of Appeal. That ground is as follows:-

The effects of incarceration in the U.S., both pre trial and following sentence if convicted upon the appellant as a person with Asperger's Syndrome suffering from depression and anxiety.

(i) The learned trial judge erred in deciding that surrender of the appellant for extradition did not give rise to a real risk of a violation of his Article 40.3 rights under the Constitution and of his rights under Article 3 ECHR.

(ii) The learned trial judge erred in deciding that the surrender of the appellant for extradition did not give rise to a real risk of a violation of his rights under Article 8 ECHR and his rights under Article 40.3.2 of the Constitution to the integrity of the human mind and personality.

3

The U.S. has sought the extradition of the appellant to stand trial in that country on very serious offences, namely, count one, (Narcotics, Trafficking Conspiracy), count two, (Computer Hacking, Conspiracy) and count three, (Money Laundering, Conspiracy). The relevant indictment was filed in the United States District Court for the Southern Capital District of New York on the 5th December 2013. All the offences carry guideline prison sentences upon conviction of up to (in the case of count three), a potential prison sentence of nineteen years and seven months. If extradited to the U.S. it is probable that the appellant will be incarcerated pending his trial.

4

The appellant was arrested on foot of the Extradition Request from the U.S. on the 13th January 2014 and conveyed to Bray garda station where he was processed in the usual way. He was granted bail on certain conditions, and remains on bail pending the conclusion of this appeal or other order of this Court.

5

It is alleged that the appellant was an administrator of a website called ‘Silk Road’, using the pseudonym ‘Libertas’. The website is said to have facilitated the sale of illicit drugs including cocaine, crack cocaine, crystal and other illegal goods. Purchasers of illicit drugs from the website paid in ‘Bitcoins’ and Silk Road's revenue was based on a commission of between 10% and 15% of sales revenue. Commissions earned by Silk Road are said to run to tens of millions of dollars. It is alleged the appellant was paid $1,500 per week for his services. In the course of its investigation of the Silk Road website, the FBI arrested a U.S. citizen, Ross William Ulbricht, whom it is believed is the owner and operator of the website. He stands charged with serious criminal offences in the U.S.. It is alleged that the appellant's involvement was identified from information extracted from Mr Ulbricht's seized computers.

The appellant's personal circumstances and medical history
6

The appellant is a twenty eight year old single man living with his parents at Willow House, Johnstown Court, Kilpedder in Co. Wicklow. He is the youngest of five children. The appellant has a poor employment history, is obsessed with computers and is described as a loner, naïve and immature.

7

In his report of the 21st January 2014 Prof. Michael Fitzgerald, Consultant Psychiatrist diagnosed Asperger's Syndrome depressive disorder and generalised anxiety disorder. In his view Asperger's Syndrome has been evident since childhood.

8

Prof. Simon Baron-Cohen, Professor of Development Psychopathology at Trinity College, Cambridge, confirmed Prof. Fitzgerald's diagnosis of Asperger's Syndrome. Prof. Barron-Cohen rated the appellant's Asperger's Syndrome as being very severe. He stated:-

‘In my opinion, his Asperger Syndrome is very severe in that he struggles to live independently, depends to a great extent on his family, particularly his sister, and his Asperger Syndrome affects his social judgment so that he ends up in situations that could be misinterpreted by others to his determent. Most worrying are his levels of depression that as mentioned earlier are not uncommon secondary consequences of his Asperger Syndrome. This is not just at ordinary levels of sadness but are signs of serious mental ill health. As for how this might affect his ability to be extradited, it is clear that he feels extradition would be impossible and that extradition could precipitate a suicide attempt.’

9

The diagnosis of Asperger's Syndrome made by Prof. Fitzgerald and Prof. Baron-Cohen is disputed by Prof. Harry Kennedy, Consultant Forensic psychiatrist and Executive Clinical Director of the Central Mental Hospital who examined the appellant on behalf of the Chief State Solicitor.

Discussion
10

In the course of his judgment the learned trial judge considered in a very comprehensive manner the various medical opinions before declaring himself satisfied that a diagnosis of Asperger's Syndrome was appropriate. He stated (at p. 69):-

‘I am satisfied having considered the evidence and the reasons set out in their respective reports to accept the evidence of Prof. Fitzgerald and Prof. Baron-Cohen, notwithstanding the misgivings of Prof. Kennedy, that a diagnosis of Asperger's Syndrome is appropriate. I accept this evidence in the knowledge that most of the material is self-reported and a number of unexplained inconsistencies have been identified by Prof. Kennedy.’

11

The learned trial judge did however note that there was a lack of any recorded medical history or medical treatment for Asperger's Syndrome or indeed any other mental illness prior to the commencement of these extradition proceedings. There was no evidence that the appellant was under the active treatment of a psychiatrist or a psychologist.

12

The learned trial judge commented as follows at p. 70 in his judgment:-

‘I am not satisfied that the medical evidence establishes as a matter of probability that Mr. Davis presently suffers from depression accompanied by suicidal ideation of such a level and intensity that his trial on offences similar to the alleged offences could be stayed or prevented in this jurisdiction. He is not ‘unfit to plead’. He pleaded guilty to a very serious offence in 2015 and faced the prospect of a lengthy custodial sentence in the Circuit Court without any dramatic deterioration in his mental health. It is not claimed that he does not comprehend the charges or is unable to give instructions in these proceedings or in respect of the charges laid in the United States. The respondent's case essentially is that if the Court makes an order extraditing him to the United States he will not be able to cope by reason of Asperger's Syndrome and because of depression and severe anxiety with pre-trial and post conviction incarceration and has expressed the view that he will choose to commit suicide in those circumstances.’

13

The focus of this appeal is on the appellant's condition of Asperger's Syndrome and the contention that as a person suffering from this condition and associated mental illness he was at risk of being subjected to inhuman and degrading treatment if incarcerated within the...

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2 cases
  • The Attorney General v Davis
    • Ireland
    • Supreme Court
    • 27 June 2018
    ...the ECHR. 17 The judgment of the Court was delivered by Mahon J. (Birmingham and Edwards JJ. concurring) on the 28th February, 2017 ( [2017] I.E.C.A. 50). Much of the judgment is given over to recitation of the evidence given before the High Court and the trial judge's findings in relation ......
  • The Attorney General v Davis
    • Ireland
    • Supreme Court
    • 13 March 2017
    ...a decision of the Court of Appeal made on the 28th day of February 2017; judgement of Mahon J, Birmingham and Edwards JJ concurring [2017] IECA 50. On that appeal only one point was argued on behalf of Gary Davis, the applicant for leave, and that was the point which sought to reverse the d......

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