Marques v DPP

JurisdictionIreland
JudgeMR JUSTICE MICHAEL PEART
Judgment Date12 December 2016
Neutral Citation[2016] IECA 373
Date12 December 2016
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2016] IECA 373 RECORD NUMBER: 19/2016

[2016] IECA 373

COURT OF APPEAL

Peart J.

PEART J.

BIRMINGHAM J.

SHEEHAN J.

Neutral Citation Number: [2016] IECA 373

RECORD NUMBER: 19/2016

BETWEEN:
ERIC EOIN MARQUES
APPELLANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY
NOTICE PARTY
AND
THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION
AMICUS CURIAE

Judicial review – Extradition – Child Trafficking and Pornography – Appellant seeking reliefs by way of judicial review – Whether the particular decision by the respondent in this case not to prosecute the appellant was reviewable

Facts: The appellant, Mr Marques, on 29th July 2013, was arrested on suspicion of having committed certain offences contrary to s. 5 of the Child Trafficking and Pornography Act 1998. He was subsequently released and a file was sent to the first respondent, the DPP, so that a decision could be made by her as to whether he should be prosecuted for any such offences. The Gardaí had acted on foot of information received from the Federal Bureau of Investigation in the United States of America which had been conducting an extensive investigation into the advertising and distribution of child pornography internationally over the internet. Shortly after the appellant's arrest, the US authorities communicated a request for the provisional arrest of the appellant on the ground of urgency as they wished to prosecute him there on charges of advertising and distributing child pornography, and of conspiring with others to advertise and distribute child pornography. Following receipt of that request an application was made to the High Court pursuant to s. 27 of the Extradition Act 1965 for a warrant for the appellant's arrest. That application was granted. A warrant was duly issued, and the appellant was arrested and held in custody pending the determination of the application for his extradition to the United States. On 8th November, 2013, the appellant's solicitor wrote a lengthy letter to the DPP outlining the appellant's personal circumstances in great detail, as well as pointing out the grave situation which the appellant would face if extradited. To allay any fears that the DPP might have that some evidential difficulties might arise which could prevent a successful prosecution in Ireland, this letter went on to state that the appellant would enter a plea of guilty in writing to such charges as the DPP might lay. By way of further reassurance to the DPP, this letter suggested that the extradition application could be adjourned by consent to await the conclusion of such a prosecution and sentencing of the appellant in Ireland. The DPP responded to this letter by stating that she had made a decision not to prosecute the appellant for any offences in Ireland. On appeal, leave was granted to seek reliefs by way of judicial review. On 16th December, 2015, Donnelly J refused the appellant's application for reliefs. The appellant appealed to the Court of Appeal against that order of Donnelly J.

Held by Peart J that he respectfully agreed with the very thorough analysis carried out by the trial judge and with her conclusion that the particular decision by the DPP in this case not to prosecute the appellant was not reviewable, and that she was not obliged to give her reasons for making the decision not to prosecute.

Peart J held that the trial judge was correct to refuse to grant reliefs by way of judicial review, and that this appeal should be dismissed.

Appeal dismissed.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 12th DAY OF DECEMBER 2016:
1

This is an appeal against the order of Donnelly J. dated 16th December, 2015, refusing the appellant's application for reliefs by way of judicial review for reasons stated in her judgment of the same date.

2

On 29th July 2013 members of An Garda Síochána, acting on the authority of the search warrant obtained in the District Court under Section 7 of the Child Trafficking and Pornography Act 1998, entered and searched the appellant's apartment in Dublin. They seized, inter alia, is computer which was running at the time, and arrested him on suspicion of having committed certain offences contrary to section 5 of the Act of 1998. He was subsequently released and a file was sent to the Director of Public Prosecutions so that a decision could be made by her as to whether he should be prosecuted for any such offences.

3

The Gardaí had acted on foot of information received from the Federal Bureau of Investigation in the United States of America which had been conducting an extensive investigation into the advertising and distribution of child pornography internationally over the internet. Their investigations led them to the appellant, and to allege that he was the administrator of an anonymous web-hosting service (AHS) which operated on a computer network allowing users to communicate and to host websites anonymously. It is alleged that upwards of 130 such websites were operating throughout the AHS. They believe that this network was facilitating the distribution and advertising of child pornography on a grand scale leading one officer who gave evidence at a bail hearing before the High Court here to describe the appellant as 'the largest facilitator of child pornography websites on the planet'.

4

Shortly after the search of the apartment and the appellant's arrest by An Garda Síochána on 29th July, 2013, the US authorities communicated a request for the provisional arrest of the appellant on the ground of urgency as they wished to prosecute him there on charges of advertising and distributing child pornography, and of conspiring with others to advertise and distribute child pornography.

5

Following receipt of that request for a provisional arrest an application was made to the High Court pursuant to s. 27 of the Extradition Act, 1965 as amended ('the Act of 1965') for a warrant for the appellant's arrest pursuant to s. 27. That application was granted. A warrant was duly issued, and the appellant was arrested and held in custody pending the determination of the application for his extradition to the United States. Bail was refused. No issue was raised as to the validity of that warrant or the procedures followed.

6

The issues in the judicial review application arise because of the provisions of s.15 of the Act of 1965, as substituted by section 27 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012, which provides as follows:

'15. - (1) Extradition shall not be granted for an offence which is also an offence under the law of the State if –

(a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings for the offence against the person claimed, or

(b) proceedings for the offence are pending in the State against the person claimed.

(2) Extradition may be refused by the Minister for an offence which is also an offence under the law of the State if the Director of Public Prosecutions or the Attorney General has decided either not to institute or to terminate proceedings against the person claimed in respect of the offence.'

7

It can be seen therefore that section 15 of the Act of 1965 precludes extradition where the act(s) for which extradition is sought is also an offence in this State, and where he has already been prosecuted in respect of same, or where a decision has not yet been made to prosecute him.

8

No doubt it was for this reason that on 8th November, 2013, the appellant's solicitor wrote a lengthy letter to the DPP outlining the appellant's personal circumstances in great detail, as well as pointing out the grave situation which the appellant would face if extradited, including harsh prison conditions and, in the event of conviction, a sentence of imprisonment of far greater length than he would face if he were to be prosecuted and convicted here for offences under section 5 of the Act of 1998.

9

To allay any fears that the DPP might have that some evidential difficulties might arise which could prevent a successful prosecution here, this letter went on to state that the appellant would enter a plea of guilty in writing to such charges as the DPP might lay.

10

By way of further reassurance to the DPP, this letter suggested that the extradition application could be adjourned by consent to await the conclusion of such a prosecution and sentencing of the appellant here. This suggestion was to remove any suspicion that might exist in the mind of the DPP that the appellant would resile from his plea of guilty at some future date, and perhaps thwart both the prosecution and the extradition application.

11

The DPP responded to this letter by stating that she had made a decision not to prosecute the appellant for any offences here, and stated also that in reaching her decision she had had regard to the DPP Guidelines for Prosecutors and that it is not her practice to give reasons for a decision not to prosecute.

12

The appellant's solicitor sought an elaboration of the DPP's reasons for deciding not to prosecute the appellant here, but no further reasons have been forthcoming. That position has resulted in the present proceedings in which, on appeal, leave was granted to seek the following reliefs by way of judicial review:

1. An order of certiorari to quash the...

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4 cases
  • Marques v Minister for Justice and Equality
    • Ireland
    • Supreme Court
    • 20 Marzo 2019
    ...has decided not to refuse.’ Peart J endorsed his comments on this issue in the previous Court of Appeal action taken by the appellant ( [2016] IECA 373) where it was contended that he should not be extradited because he was prepared to sign pleas of guilty to offences in this jurisdiction a......
  • Marques v Minister for Justice & Equality
    • Ireland
    • High Court
    • 31 Julio 2017
    ...This Court refused the applicant the relief he sought ( Attorney General v. Marques above) and the Court of Appeal in Marques v. The DPP [2016] IECA 373, upheld the decision. The applicant sought leave to appeal to the Supreme Court ( Marques v. The DPP [2017] IESCDET 51) but was refused ......
  • Mullan v DPP Ireland
    • Ireland
    • High Court
    • 22 Octubre 2018
    ...51 The two cases referred to therein are the cases of Attorney General v. Damache [2015] IEHC 339 and Marques v. DPP [2014] IEHC 443, [2016] IECA 373. In Damache, the requested person sought various reliefs including that the DPP was required to prosecute him in circumstances where it was ......
  • Marques v The Minister for Justice & Equality
    • Ireland
    • Court of Appeal (Ireland)
    • 18 Junio 2018
    ...including a declaration that the failure to provide reasons for deciding not to prosecute amounted to a breach of fair procedures ( [2016] IECA 373), I stated: ‘22. … in the present case one must look at the appellant's complaint as to the adequacy [of] reasons given for the decision not to......
2 books & journal articles
  • The impact of the digital age on law
    • Ireland
    • Irish Judicial Studies Journal No. 1-18, January 2018
    • 1 Enero 2018
    ...September 2014 (http://www.telegraph.co.uk/culture/books/11093317/Guns-drugs-and-freedom-the-great-dark-net-debate.html) 12Marques v DPP [2016] IECA 373. ‘Man loses extradition challenge in child abuse images case’, RTÉ, 12 December 2016 ( https://www.rte.ie/news/2016/1212/838362-eric-eoin-......
  • L'impact de l'age numérique sur le droit
    • Ireland
    • Irish Judicial Studies Journal No. 2-18, July 2018
    • 1 Julio 2018
    ...septembre 2014 (http://www.telegraph.co.uk/culture/books/11093317/Guns-drugs-and-freedom-the-great-dark-net-debate.html) 11Marques v DPP [2016] IECA 373. “Man loses extradition challenge in child abuse images case”, RTÉ, 12 décembre 2016 ( https://www.rte.ie/news/2016/1212/838362-eric-eoin-......

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