Attorney General v Wall

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 31 May 2022
• Neutral Citation: [2022] IECA 125
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2021/264

Between/

Attorney General

Respondent

and

Martin Wall

Appellant

[2022] IECA 125

The President

Edwards J.

Donnelly J.

Record No.: 2021/264

THE COURT OF APPEAL

CIVIL

Extradition – Correspondence – Inhuman and degrading treatment – Appellant appealing against extradition – Whether the appellant would be subjected to inhuman and degrading treatment within a probation regime when extradited

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. On the 24th February, 2022, the Court gave a preliminary ruling in which the appellant’s first ground of appeal on the issue of correspondence of offences was rejected, but further submissions were sought on his second ground concerning an alleged risk to the appellant of inhuman and degrading treatment if he was to be surrendered to the USA. The Court received further written and oral submissions and thereafter reserved judgment.

Held by Donnelly J that in the preliminary ruling, the question as to where real risk ends and speculation begins was raised as an issue for the Court to address; that question raised the issue of how to measure risk. She held that the Rettinger principles, per The Minister for Justice, Equality and Law Reform v Rettinger [2010] IESC 45, form the bedrock of that analysis. She held that the tools for measuring risk include the presumption of good faith and the imposition of a burden on the person sought to be returned to establish on substantial/reasonable grounds that a real risk of being subjected to prohibited treatment on return exists at the time of the first instance decision-making. She held that a possibility of ill treatment is not sufficient. She held that the appellant had not demonstrated that the trial judge was in error in finding that the appellant was not at real risk of being subjected to inhuman and degrading treatment if he was returned to the USA for the purpose of a hearing into whether he has violated his parole. She held that the impugned risk was a risk that, at the end of any period in custody to which the appellant may be sentenced, he would be required to remain in Georgia under probation supervision, and would, as a consequence of the conditions of parole, end up living in squalor and fear in a tent in a campground. Even if it was accepted that living in a camp ground in the circumstances in which the appellant found himself is inhuman and degrading (and the Court expressed no conclusion on that), she held that the risk that he might end up in such a similar situation was too remote from the return by way of extradition to demonstrate substantial/reasonable grounds for believing that there was a real risk that he would be subjected to inhuman and degrading treatment on his return. She held that, in those circumstances, it was not necessary to answer the further questions that were raised in the preliminary ruling.

Donnelly J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Donnelly delivered the 31st day of May, 2022

Introduction

1 . On the 24 ^th February, 2022, this Court gave a preliminary ruling in which the appellant's first ground of appeal on the issue of correspondence of offences was rejected, but further submissions were sought on his second ground concerning an alleged risk to the appellant of inhuman and degrading treatment if he was to be surrendered to the United States of America (“the USA”). The Court received further written and oral submissions and thereafter reserved judgment.

2 . The facts of the case are set out in the preliminary ruling and will not be repeated here (save where context requires). That ruling referred to the decision of the Court of Justice of the European Union (“the CJEU”) in ML and Generalstaatsanwaltscaft Bremen (Case C-220/18 PPU) EU:C:2018:589 (“ ML”). In that case, the CJEU addressed the issue of the extent to which a court executing a European Arrest Warrant (“EAW”) had to assess conditions in all prisons in the issuing State in which the requested person might be detained (emphasis added). The present appeal concerns an extradition request made under the provisions of the Extradition Act, 1965 as amended (“the 1965 Act”). Undoubtedly, there is a difference in the presumption of good faith that operates in respect of extradition under Part II of the 1965 Act, and surrender under the European Arrest Warrant Act 2003 as amended (“the 2003 Act”). The Supreme Court in Attorney General v. Davis [2018] 2 IR 357 at p. 401 citing Attorney General v. O'Gara [2012] IEHC 179, confirmed that the presumption of good faith is weaker in extradition requests under the 1965 Act. In EAW cases, mutual trust and mutual recognition entail a high presumption of good faith in the requesting State's commitment to the common values on which the European Union (“EU”) is founded, as stated in Article 2 of the Treaty on EU.

3 . In the preliminary ruling, I said that the question of how far the presumption of good faith must be taken into account in measuring the risk of an event that may occur at an unspecified time in the future would benefit from further submissions by the parties. I stated that other issues might also arise thereafter, depending on the view the Court might take, and for reasons of good case management, submissions were sought on a number of additional matters. At the end of the preliminary ruling I outlined the following as matters upon which the Court required submissions:

• a) The extent to which the presumption of good faith might preclude a court from going beyond the fact that this 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 the State of Georgia (“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 this 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 present circumstances?

4 . In this judgment, I propose to commence by addressing those questions in the order listed, but I will only answer those questions necessitated by the conclusions reached on the earlier questions. At first it is necessary to address a point raised by the appellant at the continued hearing of this matter.

The appellant's submission that the appeal must be allowed based upon the preliminary ruling

5 . Counsel for the appellant's overarching submission at the continued hearing was that, resulting from the Court's findings in the preliminary ruling, the appeal had to be allowed. He placed reliance on the dicta at para. 33 of the ruling where the following was stated: “[it was] difficult to see the evidential basis for the trial judge's finding that [there being no requirement for him to remain in Georgia] was the most likely outcome”. Counsel submitted that this was the basis on which the trial judge had made his decision and that this required that the appeal be allowed. This, he submitted, was the appellant's argument in the Court below and the argument he had made at the original hearing of the appeal. Counsel submitted that all he had to demonstrate was that there was a real risk that he would suffer inhuman and degrading treatment, and he had established that because it could not be said that it was most likely he would not be required to remain in Georgia.

6 . This submission of the appellant can be rejected by recalling the central issue before the High Court and thus the issue on the appeal. That issue was whether the appellant was at real risk of being exposed to inhuman and degrading treatment should he be extradited to the USA for the purpose of a hearing on whether he has violated a “special condition” of his probation. It was not about whether he was likely to be required to stay in Georgia to serve time on probation there. A requirement to stay in Georgia to serve probation was however a necessary factor in the chain of events through which the appellant contended that he might be subject to inhuman and degrading treatment. It was only if he was required to serve probation time in Georgia that the chain of events, which the appellant submits would result in him being exposed to inhuman and degrading treatment, would all be able to occur. He would have to have no accommodation in which to live and be unable to find work. The Court would also have to adjudicate on whether the particular conditions to which he says he would be exposed in fact amount to inhuman and degrading circumstances.

7 . At para. 37 of the preliminary ruling, the...