Marques v The Minister for Justice & Equality

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 18 June 2018
• Neutral Citation: [2018] IECA 174
• Date: 18 June 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 174 Record Number: 2017/606

[2018] IECA 174

THE COURT OF APPEAL

Peart J.

Peart J.

Mahon J.

Hedigan J.

Neutral Citation Number: [2018] IECA 174

Record Number: 2017/606

BETWEEN/

ERIC EOIN MARQUES

APPELLANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Judicial review – Extradition – Extradition Act 1965�s. 33 – Appellant seeking judicial review – Whether the respondent was required to provide the reasons for her decision to make an Extradition Act 1965�s. 33 order in the light of the discretionary nature of her power under s. 33 and the provisions of s. 15 of the Act

Facts: The appellant, Mr Marques, applied to the High Court for leave to seek judicial review of an Extradition Act 1965�s. 33 order on the grounds,�inter alia, that the respondent, the Minister for Justice and Equality, be required to provide the reasons for her decision to make that order in the light of the discretionary nature of her power under s. 33 and the provisions of s. 15 of the Act. On the 30th November 2017, the trial judge refused to make the orders sought, including one of certiorari to quash the Minister’s order for insufficiency of reasons and the failure by the Minister to ascertain and consider the reasons why the DPP had previously decided not to prosecute the appellant in respect of extradition offences. The trial judge was satisfied that: (a) s. 15(2) and s. 33(1) grant to the Minister a residual discretion to refuse to order the extradition of a requested person who has been committed to prison under the provisions of s. 29 of the Act where the High Court is satisfied that the requirements of the Act have been met and extradition is not prohibited; (b) it was not necessary for the Minister to obtain the DPP’s reasons for non-prosecution prior to exercising her discretion under s. 15(2); (c) the reasons given by the Minister for her decision to order the appellant’s extradition were sufficient. The appellant appealed to the Court of Appeal on the following grounds: (a) the trial judge was wrong to hold that the Minister was not required to obtain the DPP’s reasons for non-prosecution, since those reasons were potentially relevant to the decision whether or not to extradite; (b) the judge was wrong to conclude that s. 15(2) is merely permissive, and does not oblige the Minister to consider specific matters, for example the fact that the DPP had decided not to prosecute the appellant; (c) the judge was wrong to hold that it was not appropriate to seek the DPP’s reasons for non-prosecution in the light of the independence of, and the immunity attaching to, that office, and that the need on the Minister’s part to assess all information relevant to the s. 33 decision outweighed any general considerations in support of a blanket immunity from giving reasons; (d) the judge was wrong to conclude that the reasons given by the Minister for her decision to make the s. 33 order were sufficient and that all the relevant matters had been considered, and in particular given that the Minister’s letter did not say what her reasons were, and merely referred to having considered the matters raised by the appellant in his solicitor’s letter; (e) the judge was wrong to conclude that the residual discretion found in s. 15(2) limited the extent to which reasons must be given, in circumstances where there was no guidance in the Act by which the appellant could understand what discretionary matters the Minister had regard to; (f) the appellant was entitled to know the specific reasons for the decision to make the s. 33 order, given the Minister’s wide discretion, and the trial judge was wrong to conclude that the nature of that decision, taken after all court proceedings had concluded, did not require an extended or detailed treatment of all issues when giving reasons.

Held by Peart�J that the analysis of s. 15(2) and s. 33 by the trial judge as contained in her judgment was entirely correct. Peart J held that the reasons given by the Minister were clear and nothing more was required to be explained in relation to the decision under s. 33.

Peart�J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 18TH DAY OF JUNE 2018

1 The United States of America has been seeking the extradition of the appellant ever since it communicated a request for a provisional warrant for his arrest on grounds of urgency to the Minister for Justice (‘the Minister’) under Part II of the Extradition Act, 1965 (‘the Act’) on 29th July 2013.

2 The appellant was arrested on foot of a warrant issued by the High Court on the 1st August 2013, and held in custody here pending a determination by the High Court of the formal request for his extradition which was communicated by Diplomatic Note on the 13th August 2013. Many grounds of objection were raised by the appellant in the High Court when resisting the application by the Attorney General under s. 29 of the Act to have him committed to prison until such time as the Minister made an order for his extradition under s. 33 of the Act. The High Court (Donnelly J.) made an order under s. 29 on the 16th December 2015, having rejected the grounds of objection raised by the appellant.

3 That order was the subject of an appeal to this Court which was dismissed for reasons contained in a written judgment (Peart J.) delivered on the 12th December 2016.

4 The appellant had issued separate judicial review proceedings which were heard in the High Court at the same time as the extradition proceedings. In those proceedings the appellant sought to quash a decision made by the Director of Public Prosecutions not to prosecute the appellant in this jurisdiction in respect of the offences for which his extradition was being sought. His solicitor had written to the DPP making such a request, highlighting the sentence regime that the appellant would face if extradited and convicted in the United States, as well as his personal circumstances, including that he suffers from Asperger's Syndrome, and the harsh prison conditions that he would inevitably face if convicted. The letter also indicated his client's willingness to enter a guilty plea, if prosecuted here by the DPP, so as to assuage any fears that she might have that that there could be evidential difficulties which might prevent a successful prosecution in this jurisdiction.

5 It suffices to say that by order dated the 16th December 2015, the High Court (Donnelly J.) refused that application for judicial review. That decision was also the subject of an appeal to this Court which, for reasons appearing in a separate written judgment (Peart J.) delivered on the 12th December 2016, was also dismissed.

6 Following the dismissal of those appeals, the appellant made an application to the Supreme Court for leave to appeal. This was refused. He further sought to bring his case before the European Court of Human Rights, including for a stay on his extradition. That application was refused on the 1st June 2017.

7 Following the refusal of leave to appeal to the Supreme Court, the Chief State Solicitor wrote to the appellant to inform him that his extradition would then proceed immediately.

8 Upon receipt of that letter, the solicitor acting for the appellant wrote to the Chief State Solicitor on the 31st May 2017 asking that, in the event of the Minister deciding to order surrender under s. 33 of the Act, the reasons for so deciding should be provided. There was no response to that letter prior to the Minister making an order for the appellant's extradition under s. 33 of the Act on the 1st June 2017 directing his surrender to a person duly authorised by the United States of America to receive him. The appellant learned of that order only when members of An Garda S�och�na arrived to arrest him at the prison in which he was being held and take him to Dublin Airport in order to effect his surrender. That move led immediately to an application to the High Court for leave to seek a judicial review of the s. 33 order on the grounds, inter alia, that she be required to provide the reasons for her decision to make that order in the light of the discretionary nature of her power under s. 33 and the provisions of s. 15 of the Act.

9 It appears that upon the making of that application for leave to seek a judicial review, the appellant's solicitor was handed a letter dated 2ndJune 2017 which contained the Minister's reasons for her decision to make the order under s. 33 of the Act. This letter was from the Mutual Assistance Division within the Minister's department. It advised that the Minister had signed an order under s. 33 of the Act directing the extradition of the appellant to the relevant authorities in the United States, and gave certain reasons for the decision which I address later in this judgment.

10 It was agreed between the parties that there would be a telescoped hearing of these judicial review proceedings. They were listed for hearing on the 25th October 2017. Following that hearing, the trial judge delivered a written judgment on the 30th November 2017 explaining her reasons for refusing to make the orders sought, including one of certiorari to quash the Minister's order under s. 33 of the Act for insufficiency of reasons and the failure by the Minister to ascertain and consider the reasons why the DPP had previously decided not to prosecute the appellant in this jurisdiction in respect of the extradition offences. The appellant now appeals to this Court.

11 Section 33(1) of the Act provides:

‘33.(1) Subject to sections 31 and 32 [not relevant] 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.’

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