Marques v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 30 November 2017
• Neutral Citation: [2017] IEHC 717
• Docket Number: [2017 No. 473 JR]
• Court: High Court
• Date: 30 November 2017

BETWEEN

ERIC EOIN MARQUES

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2017] IEHC 717

[2017 No. 473 JR]

THE HIGH COURT

Extradition – S.33 of the Extradition Act, 1965 – Ministerial discretion – Plea to prosecute for offences in requested state – Refusal of plea by requested state

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for making an order for the surrender of the applicant to the jurisdiction of the USA. The applicant contended that despite the refusal of his plea for prosecuting him for the alleged offences in Ireland by the Director of Public Prosecutions (‘DPP’), the respondent was obliged to consider the reasons for his non-prosecution. The respondent argued that it was not mandated to seek the reasons for refusal under s. 15(2) of the Extradition Act, 1965.

Ms. Justice Donnelly refused to grant the relief to the applicant. The Court held that the respondent was vested with executive discretion to refuse the order of extradition of a requested person under s. 15(2) and s. 33(1) of the 1965 Act even if the High Court had found that the surrender of the respondent had not been prohibited. The Court, however, held that the respondent was not obliged to obtain reasons for non-prosecution from the DPP. The Court held that it was clear that in the present case, the respondent had given sufficient regard to the reasons offered by the applicant for the prohibition of his surrender.

JUDGMENT of Ms. Justice Donnelly delivered the 30th day of November, 2017

Introduction

1 On 1st August, 2013, the applicant was arrested on foot of a provisional warrant issued by the High Court earlier that day pursuant to a request by the United State of America (‘USA’) for his arrest pending a formal extradition request. The applicant has been in custody ever since, having unsuccessfully contested his extradition in the High Court and Court of Appeal and having been refused leave to appeal by the Supreme Court. In aid of his objection to extradition, the applicant brought proceedings against the Director of Public Prosecutions (‘the DPP’) seeking the reasons why she was not prosecuting him in this jurisdiction for offences of possession and distribution of child pornography. The applicant offered to plead guilty in this jurisdiction to what he claims are the same offences for which his extradition has been sought. If he were to be prosecuted for those alleged offences in this jurisdiction, he could not be extradited in relation to them. The applicant was unsuccessful in his claim of entitlement to the DPP's reasons.

2 When all avenues of challenge to his extradition were finalised, including an application to the European Court of Human Rights (ECtHR) to stay his extradition, the Minister for Justice and Equality (‘the minister’) made an order under s. 33 of the Extradition Act, 1965 (‘the Act of 1965’), directing the surrender of the applicant to the relevant authorities of the United States of America. On 6th June, 2017, the applicant sought leave to apply for judicial review of the decision of the minister to extradite him. The matter was adjourned to this Court for the purpose of hearing the application for leave. It was agreed between the parties that there should be a ‘telescoped’ application for leave to apply for judicial review. Thereafter, the applicant sought discovery concerning the decision of the minister to order his extradition. That application for discovery was refused by this Court in a judgment delivered on 31st July, 2017. This telescoped application for judicial review came on before me for hearing on 25th and 26th October, 2017.

The Issues

3 At issue in the present proceedings are two separate provisions of the Act of 1965. Under s. 33(1):

‘…the Minister may, if the person committed is not discharged by the decision of the High Court in habeas corpus proceedings, by order direct the person to be surrendered to such other person as in his opinion is duly authorised by the requesting country to receive him and he shall be surrendered accordingly.’

Section 15(2) provides:

‘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.’

4 The reliefs claimed in the judicial review proceedings are:

1) An order of certiorari quashing the order of the minister to surrender the applicant to the United States of America;

2) Declaratory relief that the minister, under s. 15(2) of the Act of 1965, has a duty to request the reasons of the DPP for not prosecuting the applicant in this jurisdiction;

3) An order of mandamus and/or an injunction requiring the minister to give reasons for her decision to surrender the applicant;

4) The applicant seeks any other or further order, including such interim and interlocutory relief, as this Court may find just.

5 As directed by the Court subsequent to the judgment on the discovery issue, an issue paper was agreed between the parties. The outstanding issues were set out in four paragraphs which were in turn sub-divided into the applicant's contention and the minister's contention. The first issue, third issue and the fourth issue are closely related. They deal in essence with the minister's duty with respect to consideration of the DPP's reasons for non-prosecution.

6 The first paragraph can be summarised as a question of whether the minister was obliged to consider the reasons for the non-prosecution of the applicant, especially in light of his offer to plead guilty in this jurisdiction and the particular impact of extradition on him, so that she could determine whether this was a relevant consideration. The third paragraph can be summarised as questioning whether s. 15(2) is permissive in nature, allowing the respondent to exercise a discretion which goes beyond the statutory bars or whether it requires consideration of the reasons for non-prosecution. Under the fourth paragraph, the applicant contends that the effect of s. 15(2) is that the minister has to consider whether or not to extradite in light of the fact that there has been a decision made not to prosecute in this jurisdiction and as an aspect of that, the minister has to know the reasons for the non-prosecution. The minister contends that it was neither necessary nor appropriate to seek reasons from the DPP having regard to the independence of that office.

7 The second paragraph on the issue paper concerns the question of whether adequate reasons had been given by the minister for her decision to extradite the applicant. In the course of the hearing of this application, it was emphasised on behalf of the applicant that the ‘reasons’ issue was interlinked with the issue of the purpose of s. 15(2) of the Act of 1965.

8 Arising from the foregoing, in my view, three central issues are identifiable:

a) How is s. 15(2) to be interpreted and in particular what is the nature of the minister's role thereunder?

b) Is the minister obliged to seek the DPP's reasons for the non-prosecution of the applicant?

c) Are the minister's reasons for her decision to order the applicant's extradition, as set out in her letter of 1st June, 2017, adequate?

The legislative history of section 15 of the Act of 1965

9 When first enacted, s. 15 of the Act of 1965 provided: ‘Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.’ This repealed section has been the subject of a number of cases in the last decade.

10 In the case of Attorney General v. Garland [2012] IEHC 90, the High Court refused to extradite the requested person to the United States on the basis that the offence was to be regarded as having been committed in this jurisdiction. The Supreme Court, in the case of Attorney General v. Pocevicius [2015] IESC 59, rejected a similar argument advanced under the same section. In the recent decision of Attorney General v. Lee [2017] IESC 68, the Supreme Court also rejected an objection to extradition based upon the section as originally drafted. The Supreme Court considered and determined the meaning of the phrase ‘regarded under the law of the State as having been committed in the State.’ In essence, the Supreme Court held that, s. 15 as originally enacted applied to offences considered territorial offences rather than all offences prosecutable in this State.

11 Section 15(1), which together with s. 15(2), was substituted for s. 15 of the original Act of 1965 by s. 27 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act, 2012 (‘the Act of 2012’), now reads as follows:

‘Extradition shall not be granted where the 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.’

12 The applicant, in referring to the legislative history of s. 15(2), submitted that the subsection was only inserted after the repeal of the original s. 15 provisions by the Act of 2012. This is not strictly accurate as there was a virtually identical provision contained within the original provisions of the Act of 1965.

13 Section 17(1) of the Act of 1965 as originally enacted stated:

‘(1) Extradition shall not be granted if final judgment has been passed in the State or in a third country upon the person claimed in respect of the offence for which extradition is requested.’

Subsection 2 of s. 17 as...