Attorney General v Marques

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 16 December 2015
• Neutral Citation: [2015] IEHC 798
• Court: High Court
• Docket Number: [2013 No. 198 EXT]
• Date: 16 December 2015

BETWEEN

ATTORNEY GENERAL

APPLICANT

AND

ERIC EOIN MARQUES

RESPONDENT

AND

[2014 No. 166 JR]

BETWEEN

ERIC EOIN MARQUES

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND

AND THE ATTORNEY GENERAL

RESPONDENTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

NOTICE PARTY

[2015] IEHC 798

Donnelly J.

[2013 No. 198 EXT]

THE HIGH COURT

International Law – Extradition – The Extradition Act 1965 – The Extradition (European Union Conventions) Act 2001 – The Child Trafficking and Pornography Act 1998 – Art. VIII (7) of the integrated Washington Treaty – Admissibility of documents for extradition – Provisional arrest – Urgency – De facto life sentence – Fair procedures – Art. 8 of the European Convention on Human Rights.

Facts: The applicant in the first named proceedings sought an order for the extradition of the respondent to the United States of America for alleged offences in relation to the advertising and distribution of child pornography upon request for provisional arrest of the said respondent made by USA under s. 27 of the Extradition Act 1965. The said respondent also initiated judicial review proceedings against the State defendants on the issue of whether the decision of the Department of Public Prosecution (DPP) for not prosecuting the applicant under the jurisdiction of Ireland was reviewable. The said respondent alleged that the sentencing regime in USA would be in breach of his fundamental rights as it took into account previous acquittal, uncharged conduct and the conduct of co-conspirators while deciding the quantum of sentence. The said respondent also contended that he could face de facto life sentence, which was contrary to fair procedures.

Ms. Justice Donnelly granted an order for the surrender of the respondent in the first named proceedings to the jurisdiction of USA. The Court in the second named judicial review proceedings held that the decision of the DPP for not prosecuting the applicant was not reviewable. The Court observed that the sentencing regime in USA taking note of uncharged conduct and prior acquittal seemed to be harsh yet, the wide discretion conferred upon the judge with mandate not to exceed statutory maximum punishment would not amount to a denial of fair trial. The Court opined that disproportionate interference with right to family life under art. 8 of ECHR must be balanced against the public interest that favoured punishment for a person alleged to have been involved in grave crime. The Court in consonance with the decision of the Supreme Court in Murphy v Ireland & Ors [2014] IESC 19 held that the decision of the DPP was amenable to review only if it was made mala fides or with ulterior motives. The Court held that there was no mandatory duty on the DPP to disclose reasons for refusal for not charging the respondent in the public interest.

JUDGMENT of Ms. Justice Donnelly delivered the 16th day of December 2015.

1. INTRODUCTION AND BACKGROUND

1.1 Eric Eoin Marques is sought by the United States of America (‘the USA’) for prosecution in respect of four alleged offences relating to the advertising and distribution of child pornography. The Attorney General seeks from the court an order for his extradition to the USA. Mr. Marques contests his extradition on a wide variety of grounds, Mr. Marques has also bought judicial review proceedings against the Director of Public Prosecutions (‘the DPP’) and has named the Minister for Justice and Equality (‘the Minister’) as a Notice Party. The same counsel represented all the State defendants at the hearing of both applicants and the State defendants will be identified as ‘the State’ throughout this judgment except where otherwise specifically indicated. In view of this joint judgment disposing of both the application for extradition by the State and the application for judicial review by Mr. Marques, the latter shall be referred to by his name throughout.

1.2 The aim of Mr. Marques in the judicial review proceedings is to force the DPP to prosecute him in this jurisdiction for those alleged offences upon which his extradition is sought. He has offered to plead guilty to the offences and to have the extradition proceedings adjourned to ensure that he keeps this promise. If he is prosecuted in this jurisdiction, regardless of the outcome, he cannot be extradited to the USA in relation to the same offences. If he is extradited he faces the possibility of maximum sentences of greater length than he would face in this jurisdiction, served far from his home and family and perhaps in conditions of greater severity than would be experienced in custody in this jurisdiction.

1.3 The points of objection in the extradition proceedings were twenty-nine paragraphs in length. The court requested an issue paper so that the hearing could be focused on more particularised points of contention. Unfortunately, that only reduced the points of objection to twenty-seven paragraphs while introducing a further preliminary issue; however, the actual issues raised in the objections to extradition were limited in number and can be dealt with under the headings set out in the next paragraph. Counsel on behalf of Mr. Marques identified those areas where the decision of this Court in Attorney General v Damache, [2015] IEHC 339, represented binding authority against him. Counsel maintained those arguments but recognised that this Court would be bound to hold against Mr. Marques on those issues.

1.4 This judgment will address the following issues:

1. Introduction and Background

2. Required proofs for extradition

3. Correspondence of Offences and Minimum Gravity

4. Federal Guidelines and Disproportionate Disregard for Character of the Accused

5. Speciality

6. Sentencing Provisions: Sentencing for the Relevant Conduct of Co-Conspirators and for Uncharged and Acquitted Conduct on the basis of the Preponderance of the evidence

7. De Facto Life Sentence and Irreducible Life Sentence

8. Coercive Plea Bargaining

9. Prison Conditions and Mr. Marques' Asperger's condition

10. Right to respect for personal and family life, including questions of proportionality of the extradition

11. The Judicial Review

12. Conclusion

1.5 The relevant background and facts are set out in detail in the judgment of Edwards J, [2014] IEHC 443, in which he refused leave to apply for judicial review to Mr. Marques. It is unnecessary to set out all those details again. In synopsis, it is alleged against Mr. Marques that, on dates between 24th July, 2008, through on or about 29th July, 2013, in Ireland, and the United States, he committed the following four offences:

Count 1: Conspiracy to advertise child pornography, in violation of 18 USC §§ 2251(d)(1) and (e), which carries a maximum of 30 years' imprisonment;

Count 2: Conspiracy to distribute child pornography, in violation of 18 USC §§ 2252A (a)(2) and (b)(1), which carries a maximum of 20 years' imprisonment;

Count 3: Advertising child pornography and aiding and abetting, in violation of 18 USC §§ 2251 (d)(1) and 2, which carries a maximum of 30 years' imprisonment; and

Count 4: Distribution of child pornography and aiding and abetting, in violation of 18 USC §§ 2252A (a)(2) and 2, which carries a maximum of 20 years' imprisonment.

1.6 It is alleged against Mr. Marques that he was the administrator of an anonymous web hosting service (referred to as ‘AHS’ in the documentation and in this judgment) which operated on a computer network allowing users to communicate and to host entire websites anonymously. This network protects users' privacy online by bouncing their communications around a distributed network of relay computers run by volunteers all around the world. These websites are alleged to all be located on a single server.

1.7 As of July, 2013, it is alleged that more than one hundred and thirty child pornography related websites (‘the Target Websites’) were operating on the AHS wherein users could upload and download content from anywhere in the world. Collectively these websites have thousands of members who have posted millions of images or videos of child pornography, some of which depict minors as young as infants engaged in graphic sexual acts with adults. Details are given in the extradition documentation of the contents of three of these websites which are alleged to be representative of same.

1.8 The documentation deals with the alleged identification of Mr. Marques as the administrator of the AHS. Some of this material results from the search of Mr. Marques' home by members of An Garda Síochána on the 29th July, 2013.

1.9 The documentation in the extradition request alleges that U.S. law enforcement agents determined that the Target Websites advertised and distributed child pornography by openly displaying images of child pornography that were available for download or instructing users about how to gain access to site sections where child pornography could be viewed and downloaded. Details of the advertisements and content available on some of the Target Websites are set out in the supplemental affidavit of Ms. LisaMarie Freitas, a Special Assistant United States Attorney, who is familiar with the charges and evidence in the case against Mr. Marques.

1.10 It is further of some relevance to the issues raised that the Gardaí also played a role in the investigation of Mr. Marques in relation to possession of child pornography and that Gardaí were in communication with the FBI. According to the evidence of Detective Inspector Declan Daly, the Gardaí conducted a search of Mr. Marques' apartment on the 29th July, 2013, having obtained a search warrant issued under s. 7 of the Child Trafficking and Pornography Act 1998. Mr. Marques was present and it is alleged that he ran towards the computer which was located in a corner of the room when they entered. The computer was seized and Mr. Marques was...