Marques v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Clarke C.J.,Charleton J.,Finlay Geoghegan J.
• Judgment Date: 30 July 2018
• Neutral Citation: [2018] IESCDET 116
• Docket Number: A:AP:IE:2017:000606
• Court: Supreme Court
• Date: 30 July 2018

[2018] IESCDET 116

THE SUPREME COURT

Clarke C.J.

Charleton J.

Finlay Geoghegan J.

A:AP:IE:2017:000606

DETERMINATION

BETWEEN

ERIC OWEN MARQUES

APPLICANT

AND

THE MINISTER FOR JUSTICE & EQUALITY

RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 18th June, 2018

DATE OF ORDER: 22nd June, 2018

DATE OF PERFECTION OF ORDER: 26th June, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 3rd July, 2018 AND WAS IN TIME.

Jurisdiction

1 This determination relates to an application for leave to appeal pursuant to Art. 34.5.3 of the Constitution from an order of the Court of Appeal made on the 26th June, 2018 for the reasons set out in a written judgment Peart J. (Mahon and Hedigan JJ. concurring) delivered on the 18th June, 2018. The Court of Appeal dismissed an appeal from an order of the High Court (Donnelly J.) of the 7th December, 2017 for the reasons set out in a written judgment delivered on the 30th November, 2017. The High Court refused the applicant relief by way of judicial review seeking primarily to quash an order of the respondent made on the 1st June, 2017 under s.33 of the Extradition Act, 1965 (as amended) (‘1965 Act’) directing the surrender of the applicant to the United States of America.

2 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions (2017) IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73.

3 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

The Proceedings

4 The applicant is sought by the United States for the prosecution of four offences relating to child pornography. He was arrested in this jurisdiction on the 1st August, 2013 pursuant to a provisional warrant issued by the High Court pursuant to a request from the USA. The applicant has been in custody ever since. He unsuccessfully contested his extradition in the High Court and the Court of Appeal and this Court refused leave to appeal [2017] IESCDET 50. The applicant had in the course of the extradition proceedings brought separate judicial review proceedings challenging the decision of the Director of Public Prosecutions not to prosecute him in this jurisdiction. He was unsuccessful in those proceedings in the High Court and the Court of Appeal and this Court refused leave in a determination issued on the 25th May, 2017 [ 2017 IESCDET 51).

5 Subsequent to each of those proceedings the respondent made an order on 1st June, 2017 under s.33 of the 1965 Act directing the surrender of the applicant to the relevant authorities of the United States of America.

6 That order had been preceded by a letter dated 31st May, 2017 from the solicitors for the applicant seeking inter alia that the respondent exercise the discretion given her by s.15(2) of the 1965 Act and for that purpose that the respondent ascertain the...