Marques v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 20 March 2019
• Neutral Citation: [2019] IESC 16
• Date: 20 March 2019
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2018:000097 Court of Appeal record number: 2017 606 [2018] IECA 174 High Court record number: 2017 473JR [2017] IEHC 717

Between

Eric Eoin Marques

Applicant/Appellant

- and -

The Minister for Justice and Equality, Ireland

and

the Attorney General

Respondent/Respondent

[2019] IESC 16

Charleton J.

McKechnie J.

MacMenamin J.

Charleton J.

O'Malley Iseult J.

Finlay Geoghegan J.

Supreme Court appeal number: S:AP:IE:2018:000097

[2019] IESC 16

Court of Appeal record number: 2017 606

[2018] IECA 174

High Court record number: 2017 473JR

[2017] IEHC 717

An Chúirt Uachtarach

The Supreme Court

Extradition – Prosecution – Adequate reasons – Appellant seeking to appeal against a decision of the High Court – Whether the reasons given by the respondent in making a decision to extradite the appellant were adequate

Facts: The Supreme Court, by determination dated 30 July 2018, gave leave to the appellant, Mr Marques, to bring a further appeal against the decision by Donnelly J, in her judgment in the High Court of 30 November 2017, as affirmed by judgment of the Court of Appeal on 18 June 2018, Peart J sitting with Mahon and Hedigan JJ. The three issues identified as requiring a further appeal because of their “general public importance” within the meaning of Article 34.5.3º of the Constitution were the following: 1) the correct interpretation of s. 15(2) of the Extradition Act 1965 and the role of the first respondent, the Minister for Justice and Equality, thereunder; 2) whether the Minister is under an obligation to seek reasons from the Director of Public Prosecutions as to why a suspect is not being prosecuted in Ireland, where such a possibility reasonably arises; and 3) whether the reasons given by the Minister in making a decision to extradite the appellant were adequate.

Held by Charleton J that the correct interpretation of s. 15(2) of the 1965 Act and the role of the Minister thereunder involves the Minister, on behalf of the State, fulfilling international obligations which are separate from the court process; the Minister retains an entitlement to refuse extradition. Charleton J held that the Minister is not under an obligation to seek reasons from the Director of Public Prosecutions as to why a suspect is not being prosecuted in Ireland, where such a possibility reasonably arises, the Minister having a separate function. Charleton J held that the reasons given by the Minister, judged in the context of the circumstances of the case and the preceding court decisions were adequate.

Charleton J held that the order of Donnelly J and the judgment of the Court of Appeal affirming that order should be upheld.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton of Wednesday the 20th of March 2019

1 Extradition occurs when people, suspected by a foreign country of a crime over which they validly assert jurisdiction, are surrendered from the country in which they are to agents of the requesting country. With the complexity attendant on the nature of extradition request papers, and with a view to protecting the rights of suspects, the courts provide a forum where analysis takes place as to legal compliance with legislation and the protection of rights. Many crimes are multi-jurisdictional, such as conspiracy to commit an offence over multiple territories, through for instance drug importation, as well as those perpetrated through the use of the World Wide Web. Such crimes may be committed by a suspect in such a way as to invoke local criminal jurisdiction as well as allegedly criminally affecting some aspect of life in the requesting country. The Extradition Act 1965, as amended, allows the Director of Public Prosecutions to decline to prosecute or to discontinue a prosecution against suspects in Ireland. Section 15(1) of the 1965 Act enables the Minister for Justice and Equality to decline to extradite a suspect even though the courts have enabled extradition and no prosecution in Ireland is to proceed. It is the nature of whatever discretion the Minister has under the 1965 Act which is at issue on this appeal, together with a question as to whether the Minister needs to know the reasons why the suspect is not to be prosecuted in Ireland and what level of reasons for nonetheless ordering extradition must be disclosed by the Minister.

Determination

2 By determination dated 30 July 2018, this Court gave leave to the appellant to bring a further appeal against the decision by Donnelly J, in her judgment in the High Court of 30 November 2017, as affirmed by judgment of the Court of Appeal on 18 June 2018, Peart J sitting with Mahon and Hedigan JJ. The three issues identified as requiring a further appeal because of their ‘general public importance’ within the meaning of Article 34.5.3° of the Constitution are the following:

1. the correct interpretation of section 15(2) of the Extradition Act 1965 and the role of the Minister for Justice and Equality thereunder;

2. whether the Minister is under an obligation to seek reasons from the Director of Public Prosecutions as to why a suspect is not being prosecuted in Ireland, where such a possibility reasonably arises; and

3. whether the reasons given by the Minister in making a decision to extradite this suspect were adequate.

Background

3 Eric Marques was arrested in Dublin on 1 August 2013 in consequence of a provisional arrest for extradition request from the United States of America on 29 July of the same year. On 2 August 2013, appearing before the High Court, he was refused bail and has remained in custody since. The formal extradition request was received on 13 August 2013 and on the following day, the Minister for Justice and Equality certified that the matter should proceed. The relevant section is section 26 of the 1965 Act, as amended, which provides that if ‘the Minister receives a request made in accordance with’ Part II of the Act ‘for the extradition of any person he shall’ signify by order to the High Court that a request has been made, whereupon ‘a warrant for the arrest of that person shall be issued.’ The Minister may ‘request the requesting country to furnish such further information as he thinks proper and may fix a time-limit for the receipt thereof.’ The Minister, even at that stage, ‘may refuse extradition if he is of opinion that the case is one in which extradition is prohibited under any provision of’ Part II of the Act ‘or under the relevant extradition provisions.’

4 The allegation facing Eric Marques was that from a location in Dublin, he had organised an online site facilitating access to pornographic images involving children. The Director of Public Prosecutions, knowing of the extradition request, declined to prosecute him in this jurisdiction. That decision was made notwithstanding that he had offered to plead guilty to at least some of the potential charges that might have been brought against him in Ireland. Some delay was occasioned by the initial refusal of leave to commence a judicial review of the decision not to prosecute him in Ireland, but that case was heard by Donnelly J in the High Court in the summer of 2015. The decision of the High Court on this point was given on 16 December 2015, refusing all reliefs sought. That decision was upheld by the Court of Appeal on 12 December 2016 following on a hearing in the summer of that year. Leave to appeal to the Supreme Court was refused, as was an application to the European Court of Human Rights to stay the extradition. Hence, in May 2017, the State authorities informed Eric Marques that his extradition would proceed. A new point was then initiated. His solicitors wrote to the Minister asking for clarification as to why a decision had been made to extradite him. On 31 May 2017, his solicitor wrote a letter to the Minister seeking the refusal by the Minster of extradition. The next day, the Minister signed an order under section 33 of the 1965 Act directing the surrender of Eric Marques to the American authorities. On 2 June 2017, the Minister responded to the letter of 31 May 2017. Leave was sought that day to commence a judicial review of the Minister's decision. The leave and substantive hearing were both considered by Donnelly J in the High Court shortly after, with judgment being delivered on 31 July 2017 on a case management issue, refusing discovery against the Minister. Substantively, the case was heard on 25 October 2017 over two days, with judgment refusing relief given on 30 November 2017. The Court of Appeal heard the appeal on 9 April 2018 and delivered judgment affirming the High Court's decision on 18 June 2018. This Court granted leave to appeal on 30 July 2018 and heard the case on 17 December of that same year.

The nature of extradition

5 Both the current usage of extradition under the 1965 Act and the history of how the formal surrender of suspects between countries developed confirm that it is a sovereign state action. While aspects of extradition have been embanked by legislation, the nature of the process is one of international governmental cooperation.

6 Halsbury's Laws of England (5th edition, London, 2014) describes in volume 47 at paragraph 601, the nature of extradition thus, with footnotes omitted:

Extradition is the formal surrender by one country to another of an individual accused or convicted of a criminal offence within the jurisdiction of the requesting state which, being competent by its own law to try and punish him, requests the individual's surrender. It is to be distinguished from deportation (which is the process whereby the competent authorities require a person to leave a territory), from the return, or “refoulement,” of persons denied admission to a territory (which is the administrative act whereby such persons are returned to the territories whence they came), from the delivery of persons wanted for trial before international criminal tribunals (which is not extradition although it is based on international agreements agreed between states, it does not occur between states), and from...