Attorney General v Martin Wall

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 24 February 2022
• Neutral Citation: [2022] IECA 42
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2021/264

Between/

Attorney General

Respondent

and

Martin Wall

Appellant

[2022] IECA 42

Birmingham P.

Edwards J.

Donnelly J.

Record No.: 2021/264

THE COURT OF APPEAL

Extradition – Correspondence – Inhuman and degrading treatment – Appellant appealing against extradition – Whether in respect of one of the offences for which the appellant’s extradition was sought, there was correspondence with an offence in Ireland’s jurisdiction

Facts: The High Court, on the 11th October, 2021, made an order for the extradition of the appellant, Mr Wall, following an extradition request from the Attorney General of the United States of America (the USA) dated the 22nd November, 2020 and accompanied by the Diplomatic Note from the Embassy of the USA dated the 2nd January, 2020. The appellant appealed to the Court of Appeal against that decision. The parties agreed that only two issues arose on the appeal: (a) whether in respect of one of the offences for which his extradition was sought, there was correspondence with an offence in Ireland’s jurisdiction; and (b) whether the decision of the High Court Judge was correct, based upon a number of arguments of fact and law, with regard to his findings that the appellant would not be subjected to inhuman and degrading treatment within a probation regime when extradited.

Held by Donnelly J that, regarding the appellant’s submission that the High Court Judge erred in finding correspondence with an offence under s. 8(1) of the Criminal Law (Sexual Offences) Act 2017, the appellant communicated with another person for the purpose of facilitating the sexual exploitation of a child. Donnelly J accepted that the trial judge was correct in ruling that s. 8(1) does not require or specify that it has to be a specific or particular child in order that this is the purpose of the communication; it is the communication, with the stated purpose of exploiting a child, which forms the basis of the offending behaviour.

Donnelly J held that the matters that ought to be addressed in further submissions by the parties were as follows: (a) The extent to which the presumption of good faith might preclude a court from going beyond the fact that the appellant will spend at least some time in custody prior to any final decision. (b) The extent to which the measurement of future risk is affected by the remoteness of the feared result together with the presumption of good faith on behalf of the requesting State. (c) Whether the Court of Appeal can, of its own motion, seek further information (or assurances) from the requesting State as to future risk of the appellant facing inhuman and degrading conditions if extradited? (d) If the Court may seek such information (or assurances), ought the Court to seek the following information: (i) What level of risk is there that this appellant would be released from custody to undergo further service of his sentence on Probation and subject to the Sex Offenders’ Register? (ii) Will he be free to leave Georgia if he is sentenced to a period on Probation and subject to the Sex Offenders’ Register? (iii) Could further information be provided as to the restrictions he will be required to abide by? (iv) To what extent may these restrictions be said to cause the circumstances of homelessness and poverty experienced by the appellant previously? (e) If the Court is precluded from seeking such information (or assurances), does the Court have jurisdiction to remit the case to the High Court for the purpose of seeking these? If so, (f) ought the Court to so remit in the circumstances?

Appeal on-going.

UNAPPROVED

Preliminary Ruling of Ms. Justice Donnelly delivered this 24 ^th day of February, 2022

Introduction

1 . One the 11 ^th October, 2021, the High Court made an order for the extradition of the appellant, following an extradition request from the Attorney General of the United States of America (“the USA”) dated the 22 ^nd November, 2020 and accompanied by the Diplomatic Note from the Embassy of the USA dated the 2 ^nd January, 2020. The appellant appeals against that decision. The parties agree that only two issues arise on this appeal:

• a) whether in respect of one of the offences for which his extradition is sought, there is correspondence with an offence in this jurisdiction; and

• b) whether the decision of the High Court was correct, based upon a number of arguments of fact and law, with regard to his findings that the appellant would not be subjected to inhuman and degrading treatment within a probation regime when extradited.

2 . This judgment will deal conclusively with the issue of correspondence but will not, for the reasons stated herein, conclude this appeal on the second ground.

The offences for which extradition is sought

3 . The appellant's extradition has been ordered in respect of three offences committed on or about the 12 ^th January, 2011. These three offences were (i) utilising a computer on-line service to entice another person believed to be a child to engage in sexual conduct, (ii) of obscene internet contact with another person believed to be a child, and (iii) of criminal attempt to commit enticing a child for indecent purposes.

4 . These offences were committed in the State of Georgia and were prosecuted by the relevant authorities in that state. The appellant had pleaded guilty to the offences in what is termed in the extradition request as a negotiated plea. He received a sentence of 15 years, which sentence was suspended on a number of conditions, one of which was that he attend at a Probation Detention Centre and carry out a minimum number of 240 days up to a maximum of 365 days there which he served. When released he was required to report to the probation officer, and on the 21 ^st January, 2014 following the failure of the appellant to report as directed the arrest warrant was issued.

5 . The extradition of the appellant has been ordered so he can be brought before a court in Georgia in relation to a hearing as to whether on the preponderance of the evidence he has violated a “special condition” of his probation. If he has, the court may, according to the extradition request, “revoke any portion of the remaining probation and sentence him to serve that period of time [12 years, 6 months and 11 days] in prison. The Court would also have the authority, even if it determined a probation violation had occurred, to return him to probation.”

6 . The facts on which the appellant was convicted reveal that he had not actually been in communication with a child, although he believed he was in such contact. He was in contact with an undercover police officer who posed as a 13 year old female child. This Court is not concerned with an issue of entrapment.

Correspondence of Offences

7 . Before a person can be extradited under the provisions of the Extradition Act, 1965 as amended (“the 1965 Act”), the act which constitutes the offence for which extradition is sought must correspond with an offence in this jurisdiction. The law on corresponding offences was not at issue in the appeal. The issue was solely whether the act which constituted the offence in the USA would “if committed in the State […], would constitute an offence” (as per s. 10(3) of the 1965 Act).

8 . In the High Court, the appellant argued that none of the offences corresponded with offences in this jurisdiction. On the appeal however, the appellant confirms that his only argument was that the first offence of utilising a computer on-line service to entice another person believed to be a child to engage in sexual conduct does not correspond to an offence in this jurisdiction. In particular, the appellant submits that the High Court Judge erred in finding correspondence with an offence under s. 8(1) of the Criminal Law (Sexual Offences) Act, 2017 (“the 2017 Act”). That offence provides as follows:

“8. (1) A person who by means of information and communication technology communicates with another person (including a child) for the purpose of facilitating the sexual exploitation of a child by that person or any other person shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding 14 years.”

9 . The High Court held as follows on this issue at para. 19:-

“I am satisfied that had the respondent in this jurisdiction communicated with another person, whether a child or adult, by the same means and communicating the same content as he did when communicating with the detective on 12 ^th January 2011, that would constitute an offence contrary to s. 8(1) of the Act of 2017. It is not a prerequisite to an offence under s. 8(1) of the Act of 2017 that the communication be with a child. It is sufficient that the communication is with another person provided that the purpose of the communication is to facilitate the exploitation of a child. I have no doubt that the purpose of the communications from the respondent to the detective were for the purpose of facilitating the sexual exploitation of a child by the respondent. It is not necessary for the purposes of s. 8(1) of the Act of 2017 that sexual exploitation of a child be directed towards any named or particular child.”

10 . The appellant accepts that s. 8 of the 2017 Act provides that “ it is not necessary […] that sexual exploitation of a child be directed towards any named or particular child”. Instead, he argues that this does not alter the requirement under s. 8(1) of the 2017 Act that the communication be directed at the sexual exploitation of a child. As there was no child on the present facts, the appellant could not have sexually exploited ‘a child’ and there was no offence committed on those facts in this jurisdiction.

11 . I agree however, with the submission by counsel on behalf of the Attorney General that a communication which takes place between adults (such as in this case) is sufficient to establish...