Marques v DPP and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 09 September 2014
• Neutral Citation: [2014] IEHC 443
• Court: High Court
• Docket Number: Record No: 2014/ No 166 J.R.
• Date: 09 September 2014

[2014] IEHC 443

THE HIGH COURT JUDICIAL REVIEW

Record No: 2014/ No 166 J.R.

Between:

ERIC EOIN MARQUES

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

NOTICE PARTY

Extradition – Right to fair procedures – Right of access to the courts – Applicant seeking order of certiorari to quash the decision of the respondent not to prosecute the applicant – Whether respondent’s decision was disproportionate, unreasonable and amounted to a breach of constitutional and fundamental rights

Facts: The applicant, Mr Marques, was charged in the United States with a number of offences involving the distribution of child pornography. The United States requested that Ireland extradite the applicant to their jurisdiction. The applicant was arrested in Ireland in 2013 on foot of an extradition warrant issued by the High Court pursuant to s. 27 of the Extradition Act 1965 and remanded in custody. The first respondent, the DPP, declined to prosecute the applicant in Ireland’s jurisdiction. Mr Marques applied to the High Court seeking an order of certiorari to quash the DPP’s decision. He sought declarations, including that the decision was an abdication of the DPP’s responsibility as prosecutor, that it was made without sufficient regard to relevant considerations, and that it was disproportionate, unreasonable and amounted to a failure to vindicate certain rights, such as the right of access to the courts and the right to fair procedures, guaranteed to the applicant under the Constitution and the European Convention on Human Rights. The applicant sought an order of certiorari quashing the alleged decision of the DPP refusing to provide the applicant with reasons for her decision not to prosecute him, relying upon Murphy v Ireland & Ors [2014] IESC 19, and an order of mandamus or an injunction requiring the DPP to give such reasons. The applicant claimed a declaration that s. 15 of the 1965 Act is repugnant to the Constitution and incompatible with the European Convention on Human Rights.

Held by Edwards J that the High Court was not disposed to grant the applicant leave to apply for judicial review to enable him to challenge the DPP’s decision not to prosecute him, as the applicant did not contend that there was mala fides on the part of the DPP or that she had improper motive in deciding as she did. Edwards J was not persuaded that the applicant had successfully demonstrated the existence of other exceptional circumstances to make the DPP’s decision judicially reviewable; the circumstances he relied upon did not relate to and were not integral to the decision making process that the DPP was engaged in. Furthermore, Edwards J held that the decision did not operate so as to prejudice any fundamental or constitutional right engaged by the applicant. Edwards J held that the request for the applicant’s extradition would not be barred. The applicant retained the right to challenge that extradition request at the s. 29 committal hearing before the High Court. Edwards J held that the DPP’s decision is neither counterintuitive nor to be regarded as inexplicable. He also held that the Court was not disposed to grant the applicant leave to apply for judicial review to enable him to challenge the DPP’s decision refusing to furnish reasons. Relying upon H v DPP [1994] 2 IR 589, Edwards J held that the obligation to give reasons is dependent upon and a reflection of the reviewability of the decision and scope of that review, distinguishing Murphy. In circumstances where the applicant had not persuaded the Court that exceptional circumstances exist such as would render the decision not to prosecute him judicially reviewable, Edwards J held that the applicant cannot make an arguable case that the DPP should state her reasons for that decision.

Edwards J held that he should refuse leave to apply for judicial review in respect of both putative challenges and dismissed the applicant’s proceedings.

Application refused.

Mr Justice Edwards

Judgment of Mr Justice Edwards delivered on the 9th day of September, 2014

1 Introduction:

2 1.This is an application for leave to apply for judicial review in which the applicant seeks relief under several headings.

3 2.The applicant seeks, inter alia, an order of certiorari to quash a decision of the first named respondent declining to prosecute the applicant in this jurisdiction in respect of certain offences for which his extradition is sought by the United States of America. This relief is sought on diverse grounds, in respect of which various declarations are also sought in addition to the primary relief of certiorari, including that the said decision was an abdication of the first named respondent’s responsibility as prosecutor (presumably referring to her statutory functions under the Prosecution of Offences Act 1974); that it was made without sufficient regard to relevant considerations; and that it was disproportionate, unreasonable and amounted to a failure to vindicate certain rights guaranteed to the applicant under the Constitution and under the European Convention on Human Rights (“ECHR”).

4 3.The applicant also seeks an order of certiorari quashing an alleged decision of the first named respondent refusing to provide the applicant with reasons for her decision not to prosecute him, as well as an order of mandamus and/or an injunction requiring the first named respondent to give such reasons. These remedies, and various declarations further claimed in this context, are also sought on diverse grounds including an alleged failure on the part of the first named respondent to perform her functions in a manner consistent with the obligations of the State under articles 3, 5, 6, 8 and 13 of the ECHR; an alleged breach of the applicant’s right to fair procedures as protected by Article 40.3 of the Constitution; and alleged undue hindering of the applicant’s right of access to the courts, as protected by Article 38.1 of the Constitution.

5 4.The applicant further claims a declaration that s. 15 of the Extradition Act 1965 as substituted by s. 27 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 is repugnant to the Constitution; and a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that the said s. 15 (as substituted) is incompatible with the obligations of the State under Articles 3, 5, 6, 8 and 13 of the ECHR.

6 Relevant Background and Facts

7

8 5.The applicant has been charged in the United States of America with a number of charges that, for the purposes of this judgment, can be broadly described as involving (i) aiding and abetting, and conspiracy in relation to, the advertisement of child pornography; (ii) conspiracy to distribute child pornography; (iii) advertising child pornography and (iv) distributing child pornography. Without getting into specifics, these matters involve various alleged contraventions of the provisions of Title 18 of the United States Criminal Code. Arising from these charges, the United States District Court in Maryland has issued a domestic warrant for his arrest. However, it has not been possible for the U.S. authorities to arrest the applicant on foot of that domestic warrant because at the time it was issued, and at all material times since then, he has been resident in Ireland. In the circumstances, the United States of America is requesting that Ireland extradite the applicant to their jurisdiction pursuant to a request in that regard made to this State under the extradition treaty that exists between Ireland and the United States of America.

9 6.The applicant was arrested in this jurisdiction on the 1st of August 2013 on foot of a provisional extradition warrant issued by this Court (Gilligan J.) pursuant to s. 27(1) of the Extradition Act 1965 as amended (hereinafter referred to as the Act of 1965). He was brought before the High Court (once again, Gilligan J.) on the same day in accordance with s. 27(6) of the Act of 1965, and was remanded in custody pending (a) the receipt by him of a certificate of the Minister for Justice and Equality under s. 26(1) (a) of the Act of 1965 stating that a request for his extradition had been duly made, or (b) his release either under s.27 (7) of the Act of 1965.

10 7.A provisional warrant issued under s.27 of the Act of 1965 remains effective for a maximum of eighteen days from the date of the person’s arrest. Under s. 27(7) of the Act of 1965, if, within the period of eighteen days after such person’s arrest, no certificate of the Minister under s. 26(1)(a) of the Act of 1965 stating that a request for his extradition had been duly made is produced, he is required to be released.

11 8.A certificate of the Minister under s. 26(1)(a) of the Act of 1965 stating that a request for his extradition had been duly made was in fact presented within the required eighteen day period. Accordingly, the applicant was produced before the High Court (Kearns P.) and he was further remanded in custody to await a hearing under s. 29 of the Act of 1965 to determine whether he is to be committed to await the order of the Minister for his extradition, or be discharged.

12 9.The s.29 hearing in respect of the request for the applicant’s extradition was formally opened before this Court on the 25th of March 2014, following which it was adjourned sine die, upon the application of the applicant herein, pending the outcome of the present judicial review proceedings.

13

14 10.The alleged facts of the case are set forth in various affidavits filed in support of the extradition request. The Court will attempt to briefly summarise the principal evidence relied upon therein. In that...