Attorney General v Davis

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 12 August 2016
• Neutral Citation: [2016] IEHC 497
• Court: High Court
• Docket Number: [2014 No. 3 EXT.]
• Date: 12 August 2016

[2016] IEHC 497

THE HIGH COURT

McDermott J.

[2014 No. 3 EXT.]

BETWEEN

ATTORNEY GENERAL

APPLICANT

AND

GARY DAVIS

RESPONDENT

Extradition – The Extradition Act, 1965 as amended by s.26 of the Extradition (European Union Conventions) Act 2001 – Arts. 3 and 8 of the European Convention on Human Rights (ECHR) – Medical condition

Facts: The extradition of the respondent was sought by the requesting state pursuant to the execution of the European Arrest Warrant (EAW) for committing conspiracies to distribute narcotics, computer hacking and money laundering. The respondent objected to his surrender on the basis of lack of corresponding offences in the jurisdiction of Ireland, duplicity, specialty, and health issues. The respondent, who suffered from Asperger's Syndrome, claimed that he would be imprisoned in intolerable conditions, which would cause serious damage to his mental health and thus, there would be contravention of his human rights as enshrined under arts. 3 and 8 of the European Convention on Human Rights (ECHR).

Mr. Justice McDermott granted an order for the extradition of the respondent. The Court held that the three offences of conspiracy with which the respondent was charged were covered under s. 15 of the Misuse of Drugs Act 1977 (as amended). The Court held that in order to ascertain correspondence, the Court must examine the acts alleged and should not limit itself to the narrow definition of the offence of the laws of the requesting state. The Court observed that although there was no duplicity of charges, assuming that there had been, there were enough safeguards in place in the criminal justice system of the requesting state which would take care of the procedural lapses if any. The Court found that the medical condition of the respondent namely, Asperger's Syndrome, would be no bar for his surrender given the fact that appropriate measures were already in place in the prison system of the requesting state to take care of persons like the present respondent. The Court held that there was no evidence that the respondent would be exposed to inhuman and degrading prison conditions in the requesting state. The Court found that there were sufficient guidelines in place in the requesting state which a sentencing judge must keep in mind before sentencing a person suffering from Asperger's Syndrome.

JUDGMENT of Mr. Justice McDermott delivered on the 12th day of August, 2016

1 On 13th January, 2014 Sergeant Martin O'Neill arrested Gary Davis pursuant to a warrant issued by the High Court under s. 26(1)(b) of the Extradition Act, 1965 dated 9th January, 2014. Sergeant O'Neill having arrested Mr. Davis showed him the original arrest warrant, the original extradition request, the original diplomatic note and the original ministerial certificate in respect of same and explained the purpose of the arrest warrant. He was served with a copy of the original warrant and the other documents. He was conveyed to Bray Garda Station where he was processed. The sergeant explained to him the offences contained in the arrest warrant. Mr. Davis accepted that the passport photograph attached to the warrant identified him. Mr. Davis was then brought before the High Court sitting at Court 21 in the Criminal Courts of Justice, Dublin. The warrant was endorsed as executed and it, together with the original extradition request, the original diplomatic note and the original ministerial certificate are part of the proofs submitted in this case. No issue arises in these proceedings concerning the arrest and detention of Mr. Davis pursuant to the terms of the warrant or his identity.

The Warrant

2 A warrant for the arrest of Mr. Davis was issued by United States Magistrate, Judge James C. Francis IV of the United States District Court for the Southern District of New York on 5th December 2013 alleging that Mr. Davis committed the following offences:

i. Count 1: Conspiracy to distribute narcotics in violation of 21 U.S.C. §841(h), 812, 841(a)(1), 841(b)(1)(A) and 846, which carries a maximum penalty of life imprisonment;

ii. Count 2: Conspiracy to commit computer hacking in violation of 18 U.S.C. §1030(a)(2) and 1030(b), which carries a maximum penalty of five years imprisonment; and

iii. Count 3: Conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 1956(h), which carries a maximum penalty of twenty years imprisonment.

3 An indictment in case number 13 CRIM 950 had been filed in the United States District Court for the Southern District of New York on 5th December 2013 charging the respondent with these offences. The warrant for Mr. Davis's arrest issued based on that indictment and remains valid and executable. It is the basis of this request for extradition which was made pursuant to a diplomatic note dated 3rd January, 2014.

4 The background circumstances said to provide probable cause to believe that Mr. Davis committed the crimes with which he is charged are set out in the request as follows:

'The Silk Road website provided an online anonymous marketplace for illegal drugs and other illegal goods and services, including computer hacking services. The investigation by U.S. authorities has revealed that the website began operating in or about January 2011 and that the website provided a forum through which many types of illegal drugs, including heroin, cocaine, methamphetamine, ecstasy, and LSD, were sold. The website provided an infrastructure similar to well known online marketplaces such as Amazon Marketplace or e-Bay, allowing sellers and buyers to conduct transactions online. However, unlike such legitimate websites, Silk Road was designed to facilitate illegal commerce by ensuring absolute anonymity on the part of both buyers and sellers.

Through their investigations, U.S. authorities were able to identify the owner and operator of Silk Road as a U.S. citizen named Ross William Ulbricht ('Ulbricht'). U.S. authorities have learnt through their investigation that Davis was a member of Ulbricht's support staff and specifically operated as one of two Silk Road site administrators.

From in or about January 2011 up to and including in or about October 2013 Davis and other members of the conspiracy both known and unknown intentionally and knowingly conspired to violate the narcotics laws of the United States, to wit distribute and possess with intent to distribute controlled substances. In addition to providing a platform for the purchase and sale of illegal narcotics, the Silk Road website also provided a platform for the purchase and sale of malicious software designed for computer hacking such as password stealers, key loggers, and remote access tools.

Additional confirmation of Davis's role as a member of the Silk Road was uncovered from the computer seized in connection with Ulbricht's arrest. Ulbricht's computer was found to contain a folder named 'Ids' where he stored copies of identification documents he required his employees to provide to him in order to get paid. Included within the folder was an image file titled 'libertas.jpg'. The file is an image of an Irish passport held in the name of Gary Davis with a date of birth of February 27, 1988'.

5 Further details of the alleged involvement of Mr. Davis in these offences are set out in the affidavit of Serrin Turner, Assistant United States Attorney for the Southern District of New York in support of the extradition request.

6 The investigators in the United States are said to have discovered that transactions carried out on the Silk Road website were concluded using 'Bitcoin' accounts. On making a purchase on 'Silk Road' the purchaser made a Bitcoin payment to a Silk Road Bitcoin account which was held in escrow in a 'wallet' maintained by Silk Road pending the completion of the transaction. The Bitcoins were then transferred to the Silk Road Bitcoin address of the vendor and could be withdrawn by sending them to the vendor's Bitcoin address outside Silk Road. They could then be encashed for real currency. Silk Road charged a commission of 10-15% for each transaction. Silk Road also advertised and used a process known as a 'tumbler' which sought to obscure the link between the parties involved and effectively assist in the laundering of criminal proceeds. The total revenue earned by Silk Road between 6th February, 2011 and 23rd July, 2013 was said to be $79.8million by way of commission.

7 Mr. Davis is said to be an administrator of the Silk Road site known as 'Libertas'. His involvement is said to be evidenced by messages found on the site. He is alleged to have commenced working for the site on 6th June, 2013 having provided services at a lesser level for one month before that date. The messages are said to provide evidence of his knowledge of the transactions which he was alleged to have facilitated and advised upon and their illegality. His weekly salary is said to have been $1500. It is claimed that private messages from Libertas concern efforts he made as site administrator to organise the listing of drugs and other items on Silk Road under specific categories to render its operation more efficient and establish that he was well aware of the illegal nature of the commerce conducted on the site. This included work on listings concerning cocaine, crack cocaine, crystal, and other drugs. Other references concern the categorisation of various items as 'weaponry'.

The Offences

8 Count 1 charges Mr. Davis with conspiracy to distribute narcotics. Mr. Turner's affidavit outlines that the Government's evidence will establish that from in or about June to October 2013 Mr. Davis served as a site administrator on Silk Road and as such knowingly worked with others to facilitate the illegal distribution of narcotics through the Silk Road website. It is said that the evidence will show that narcotics were distributed through the...