Marques v Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 31 July 2017
• Neutral Citation: [2017] IEHC 597
• Docket Number: Record No. 2017 No. 473 EXT
• Court: High Court
• Date: 31 July 2017

[2017] IEHC 597

THE HIGH COURT

Donnelly J.

Record No. 2017 No. 473 EXT

BETWEEN

ERIC EOIN MARQUES

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Extradition – S. 27(6) of the Extradition Act, 1965 – Discovery of documents – Fair procedures – Basis for decision not to prosecute in State – Relevancy.

Facts: The applicant filed substantive judicial review proceedings for seeking an order of certiorari for quashing the decision of the respondent to surrender the applicant to the requesting state. In the present application, the applicant sought the discovery of a document, namely departmental memoranda that formed the basis of the respondent's decision to not to prosecute the applicant in Ireland for the commission of alleged offence and to surrender him. The applicant argued that the production of that memoranda was essential for the applicant and the Court for the fair disposal of the issue. The applicant claimed that the respondent had given preference to irrelevant matters while making a decision to surrender him.

Ms. Justice Donnelly refused the applicant's application for discovery. The Court held that the discovery in judicial review proceedings was an exceptional case and that the Court would not grant an order for the discovery unless it was relevant and necessary for the fair disposal of the issue. The Court pointed out that there was no evidence on record to show that the respondent took into account irrelevant material by ignoring the relevant material presented by the applicant. The Court held that the non-availability of the departmental memoranda would not be prejudicial to the applicant as the applicant was aware of the reason and the basis of that decision.

JUDGMENT of Ms. Justice Donnelly delivered the 31st day of July, 2017.

INTRODUCTION AND BACKGROUND

1 The applicant is sought by the United States of America ('the USA') for the purposes of prosecution for four alleged offences relating to the advertisement and distribution of child pornography. The applicant was arrested in Ireland in August, 2013 on foot of a provisional arrest warrant issued by the High Court pursuant to s. 27 (6) of the Extradition Act, 1965, as amended ('the 1965 Act'). The High Court made an order committing him to prison to await the order of the Minister for Justice and Equality ('the minister') for his extradition ( Attorney General v. Marques [2015] IEHC 798). The Court of Appeal dismissed his appeal ( Attorney General v. Marques [2016] IECA 374) and the Supreme Court refused to grant him further leave to appeal ( Attorney General v. Marques [2017] IESCDET 50).

2 The applicant had also challenged, by way of judicial review proceedings, the refusal of the Director of Public Prosecutions ('the DPP') to give reasons for her decision not to prosecute him in this jurisdiction for offences arising from the same acts for which his extradition was sought. 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 leave on 25th May, 2017.

3 The minister, pursuant to s. 33 of the 1965 Act, ordered that the applicant be surrendered to the United States of America. The applicant challenges that decision, and the minister's failure to give reasons, by way of these judicial review proceedings. This judgment concerns an application for discovery in those proceedings. Leave for judicial review has not yet been granted and it is intended to have a telescoped hearing of the proceedings. That procedural approach has no affect on this application for discovery.

THE RELEVANT STATUTORY PROVISIONS

4 Under s. 33 (1) of the 1965 Act, 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.'

5 However, under s. 15 (2) of the 1965 Act;

'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.'

THE SUBSTANTIVE JUDICIAL REVIEW PROCEEDINGS

6 In the judicial review proceedings, the applicant seeks:

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 1965 Act, 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.

7 An unsatisfactory aspect of these proceedings is that the precise grounds upon which the above relief was sought are not clearly set out in the statement grounding the application for judicial review. This occurred despite the fact that the applicant was granted time to amend his statement of grounds. Valuable court time was utilised in trying to tease out the grounds upon which the relief is sought. Furthermore, in the course of the application for discovery, it transpired that no amended statement of grounds had been filed and served, although the applicant was seeking to rely upon it in draft form. That necessitated the motion being adjourned so that the statement of grounds could be filed, a fresh statement of opposition could then also be filed and arguments properly marshalled in respect of the application.

8 The main grounds argued by the applicant, to the extent the Court can determine, are as follows:

a) That the minister's decision is unsound and defective because she did not seek the reasons from the DPP as to why the applicant was not prosecuted in this jurisdiction (it is accepted by the applicant that discovery is not necessary for the applicant to be able to argue this ground);

b) That the minister did not give proper reasons as to why she made the decision to surrender the applicant and that the decision is therefore presumptively invalid (it is also accepted by the applicant that discovery is not necessary for this ground);

c) That the minister had regard to irrelevant considerations and failed to have regard to relevant considerations. The applicant sets out, partially in correspondence and partially in the pleadings, a variety of matters which, he says, the minister failed to take into account. These include the fact he could be prosecuted here and his willingness to plead guilty, the public interest in prosecuting crime here, the various grounds for refusing extradition such as his family links here and his Asperger's syndrome and the possibility that the DPP's decision not to direct a prosecution in this jurisdiction was down to the simple expedient that his extradition has been requested by the United States of America (the applicant submitted that this ground is also a 'proportionality ground' for which discovery is necessary);

d) That it was a breach of the applicant's right to natural justice and constitutional fair procedures not to be told the proper basis for a decision that affects his interests to a significant degree and he did not have a meaningful opportunity to make submissions on the issue (per para. 11 of the amended statement of grounds).

9 The above claims must be seen in the context of the correspondence between the parties. The applicant, on 31st May, 2017, wrote to the Chief State Solicitor regarding his potential surrender. The letter sought confirmation that the minister would seek the reasons of the DPP for the refusal to prosecute and also confirmation that the minister would have regard to the DPP's reasons. The applicant requested the minister not to order the applicant's surrender unless she was first satisfied that the DPP's decision not to prosecute was based solely on legitimate considerations and that the extradition was in the public interest. The letter stated that the applicant would consent to any procedure that would secure his guilty plea in this jurisdiction instead of being extradited. The applicant also stated in the letter that there was a strong compassionate basis for the minister to resist the extradition of the applicant. The letter referred to various grounds such as the applicant's Asperger's syndrome, the length of prison sentence he faces and certain aspects of the criminal justice system in the United States of America.

10 The applicant sought the minister's reasons in the event that it was so decided that the applicant would be surrendered and in sufficient time so that the applicant could consider them. On 1st June, 2017, the minister, under s. 33 of the 1965 Act, signed an order directing the applicant's surrender to the United States of America. The minister stated in a letter of response, dated 2nd June, 2017, that she had considered the assertions made by the applicant in his letter of 31st May, 2017.

11 The minister also stated that, given the independence of the DPP,

'it is neither necessary nor appropriate that she would seek an explanation from the Director as to the reasons why a decision was made not to prosecute Mr Marques in this jurisdiction.'

The minister stated that the applicant had been able to raise any matter of concern to him in the course of the previous extensive proceedings. The minister said that the views of the High Court and the Court of Appeal regarding the...