Damache v DPP and Others (No.2)
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 28 February 2014 |
| Neutral Citation | [2014] IEHC 139 |
| Court | High Court |
| Date | 28 February 2014 |
[2014] IEHC 139
THE HIGH COURT
Between:
AND
AND
AND
AND
EXTRADITION ACT 1965 S26
EXTRADITION ACT 1965 PART II
EXTRADITION ACT 1965 S29
DAMACHE v DPP & ORS UNREP EDWARDS 31.1.2014 2014 IEHC 114
RSC O.84
EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8
CONSTITUTION ART 40.3
CONSTITUTION ART 38.1
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13
OFFENCES AGAINST THE STATE ACT 1939 S29(1)
CRIMINAL JUSTICE ACT 2006 S71
CRIMINAL JUSTICE (TERRORIST OFFENCES) ACT 2005 S6
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5
PROHIBITION OF INCITEMENT TO HATRED ACT 1989 S2
POST OFFICE (AMDT) ACT 1951 S13
CRIMINAL LAW ACT 1976 S5
EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) BILL 2011 S25
EXTRADITION ACT 1965 S15
EUROPEAN ARREST WARRANT (APPLICATION TO THIRD COUNTRIES & AMDT) & EXTRADITION (AMDT) ACT 2012 S27
DAMACHE v DPP & ORS 2012 2 IR 266 2012 2 ILRM 153 2012/9/2413 2012 IESC 11
AG v DAMACHE UNREP EDWARDS 31.7.2013 (EX TEMPORE)
PROSECUTION OF OFFENCES ACT 1974 S4(3)(B)
H (H) v DPP & CMSR OF AN GARDA SIOCHANA UNREP PEART 31.1.2012 2012/17/4834 2012 IEHC 41
MCCORMACK, STATE v CHIEF SUPERINTENDENT CURRAN & ORS 1987 ILRM 225
AG v MARTIN UNREP EDWARDS 2.10.2012 2012 IEHC 442
AG v O'GARA UNREP EDWARDS 1.5.2012 2012 IEHC 179
HARKINS & EDWARDS v UNITED KINGDOM 2012 6 COSTS LO 733 2012 55 EHRR 19
AHMAD v UNITED KINGDOM 2013 56 EHRR 1 2012 AER (D) 148 (APR)
G v DPP & DISTRICT JUDGE KIRBY 1994 1 IR 374 1994/3/724
INLAND REVENUE CMRS v NATIONAL FEDERATION OF SELF-EMPLOYED & SMALL BUSINESSES LTD 1982 AC 617 1981 2 WLR 722 1981 2 AER 93
A (O) & ORS v MIN FOR JUSTICE 2007 1 ILRM 58 2006/2/237 2006 IEHC 56
C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77
DAMACHE v DPP & ORS UNREP EDWARDS 31.1.2014 2014 IEHC 114
H v DPP & CMSR OF AN GARDA SIOCHANA 1994 2 IR 589
EVISTON v DPP 2002 3 IR 260
EXTRADITION ACT 1965 S15(1)(A)
CONSTITUTION ART 41
Application for leave to apply for judicial review - Extradition - Terrorism - Decision not to prosecute - Prosecutorial discretion - Change in law - Territorial bar - Arguability threshold
This was an application for leave to apply for judicial review arising out of extradition proceedings pending before the High Court. The applicant, Ali Charaf Damache, was before the High Court on foot of an arrest warrant under section 26 of the Extradition Act 1965, as amended. This arose out of a request by the United States of America dated the 27 th of February 2012 which sought the extradition of the applicant for his alleged involvement in a ‘terrorism-related conspiracy’ orchestrated from this State. The warrant was executed and a committal hearing was adjourned pending the outcome of related proceedings including these proceedings.
The applicant sought a number of reliefs including an order of certiorari quashing the decision of the first named respondent, the Director of Public Prosecutions (DPP), whereby she refused to reconsider her decision not to prosecute the applicant in this jurisdiction.
The applicant contended that a change in the relevant extradition law rendered it incumbent on the DPP reconsider this decision. The Court, however, held that the ‘absolute territoriality bar’ to extradition being replaced had no bearing whatsoever on the original decision not to prosecute. The Court rejected the suggestion that because the applicant was now the recipient of an extradition request, the DPP ought to reconsider the decision not to prosecute ‘just to assist the requested person in avoiding extradition’. The Court noted that nothing was advanced to challenge the probability that the decision was valid. Moroever, it was found that no changes in circumstances occurred which related to the correctness of the decision. The Court determined that there was ‘simply no basis’ for arguing that refusing to reconsider the decision was irrational or unreasonable.
The applicant contended that the change to the law meant that ‘forum issues’ were relevant in the decision making process of the DPP. The Court found this suggestion to be ‘unarguable’ as the duty of the DPP was simply to decide either to prosecute or not to prosecute in the jurisdiction. At the time of the original decision not to prosecute on the 16 th of March 2011, the territoriality bar existed and therefore, forum considerations could not have been a factor. Even if the decision were to be reconsidered, such issues ‘could not conceivably tip the scales’ in favour of domestic prosecution. The Court determined that if it was not appropriate to prosecute the applicant in Ireland when the territoriality bar existed and extradition was not possible, the fact that extradition was now possible could not in any way change that. It was finally noted that it remained possible for the applicant to raise forum issues in his extradition case but that such issues would never be a relevant concern for the DPP.
The Court concluded that the applicant failed to meet the threshold of arguability required to grant leave to apply for judicial review on any of the grounds raised. The application was therefore refused.
Judgment of Mr Justice Edwards delivered the 28th day of February 2014
1. The Court is concerned with an application on notice to the respondents and notice party named above for leave to apply for various reliefs and remedies by way of judicial review. It arises in the context of extradition proceedings pending before the High Court entitled, The Attorney General -v- Ali Charaf Damache (Record No. 2013/51 EXT), in which the applicant is before the Court pursuant to a warrant of arrest issued by the High Court on the 15 th February, 2013, under s. 26 of the Extradition Act 1965 as amended by the Extradition (Amendment) Act 1994, the Extradition (European Union Offences) Act 2001 and the European Arrest Warrant(Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012, on foot of a request dated the 27 th February 2012 made by the United States of America in accordance with Part II of the Extradition Act of 1965 as amended (hereinafter "the Act of 1965 as amended") and the Treaty on Extradition between Ireland and the United States of America signed on the 14 th July 2005, seeking the extradition of the applicant in respect of the applicant's alleged involvement in a terrorism-related conspiracy which he is said to have orchestrated from within this State. That warrant was duly executed on the 27 February 2013 and a committal hearing under s. 29 of the Act of 1965 as amended is currently pending. The said committal hearing was formally opened on the 10 th September 2013, but presently stands adjourned pending the outcome of related proceedings including, inter alia, this application.
2. The present application for leave to apply for judicial review is made against the background of the applicant having made an earlier, but unsuccessful, application for leave to apply for judicial review in proceedings entitled Damache v. Director of Public Prosecutions and others (Unreported, High Court, Edwards J., 31 st January, 2014) (hereinafter "the first judicial review proceedings"). The issues raised in the present proceedings are not identical, but are in very many respects similar, to those raised in the first judicial review proceedings; the most significant differences being: (a) there is a further alleged decision of the first named respondent now being challenged and this decision post-dates the hearing in the first judicial review proceedings, and (b) the applicant now has available to him, to rely upon in these new proceedings, certain evidence that was not available to him to rely upon in the first judicial review proceedings.
3. The draft "Statement Required to Ground Application for Judicial Review" to be filed by the applicant in accordance with Order 84 of the Rules of the Superior Courts in the event of leave to apply being granted to him, claims the following relief:
(i) An order of certiorari quashing the decision of the first named respondent, communicated on the 31 st January, 2014, refusing to reconsider her decision taken on 16 th March, 2011 not to prosecute the applicant.
(ii) A declaration that the failure of the first named respondent to reconsider her 16 th March, 2011 decision not to prosecute the applicant, after notification of an extradition request by the United States and after the applicant had raised new considerations relevant to the original decision not to prosecute, amounted to an abdication of her responsibilities as a prosecutor.
(iii) A declaration that the decision of the first named respondent that the extradition request made by the United States and the request for reconsideration made by the applicant on the 18 th October, 2013 did not provide any basis for her to reconsider her 16 th March, 2011 decision was unreasonable, disproportionate and amounted to a failure to vindicate the constitutional and European Convention on Human Rights and Fundamental Freedoms rights of the applicant.
(iv) An order of certiorari quashing the decision of the first named respondent communicated on the 31 st January, 2014. refusing to provide the applicant with...
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Attorney General v Damache
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