Mullan v DPP Ireland
| Jurisdiction | Ireland |
| Judge | Ms. Justice Aileen Donnelly |
| Judgment Date | 22 October 2018 |
| Neutral Citation | [2018] IEHC 585 |
| Docket Number | [RECORD NO. 2018 462 JR] |
| Court | High Court |
| Date | 22 October 2018 |
AND
[2018] IEHC 585
[RECORD NO. 2018 462 JR]
THE HIGH COURT
Extradition – Judicial review – Prosecution – Applicant seeking judicial review – Whether the applicant discharged the burden of proving that a right to be considered for prosecution exists and had been violated
Facts: The applicant, Mr Mullan, was the subject of an extradition request from the United States of America (the USA). He applied to the High Court for judicial review, seeking to have the first respondent, the Director of Public Prosecutions (the DPP), consider him for prosecution in Ireland’s jurisdiction in respect of offences for which he was sought for prosecution in the USA.
Held by the Court that on the substantive point in the proceedings, namely the assertion of a right to be considered for prosecution, the applicant had not discharged the burden of proving that such a right exists and has been violated in this case.
The Court held that it would refuse the reliefs sought.
Reliefs refused.
The applicant in these judicial review proceedings is the subject matter of an extradition request from the United States of America (the USA). Proceedings in respect of that application are in being. His main concern in the present application for judicial review is to have the Director of Public Prosecutions (DPP) consider him for prosecution in this jurisdiction in respect of offences for which he is sought for prosecution in the USA.
In the extradition proceedings, the USA seek the applicant for prosecution in respect of four alleged offences (‘the extradition offences’): -
(i) A count of sexual exploitation of a child in effect the production of child pornography between January 1999 and December 2006;
and
(ii) A count of transportation of a minor with intent to engage in sexual activity in or about December 1999;
and
(iii) Two counts of possession of child pornography (between January 17 2014 and August 17, 2017).
The first two counts are alleged to have occurred in New York, USA and elsewhere (outside the USA). The child pornography counts are alleged to have occurred in New York, USA. In the provisional request for extradition made by the US authorities, the applicant is stated to be a citizen of the USA and Ireland.
The applicant was arrested in this jurisdiction on the 16th October, 2017 pursuant to a warrant of arrest issued by the High Court under s. 27 of the Extradition Act 1965 as amended (the Act of 1965). He was arrested on his release from the Midlands Prison, Portlaoise. He had just served a sentence of imprisonment that had been imposed upon him following his extradition from the USA to Ireland for the purpose of prosecution in respect of child sexual assault and possession of child pornography in Ireland between 2000 and 2005.
The initial arrest of the applicant was made on the basis of a provisional request for extradition. Following receipt of the appropriate request from the USA, the Minister issued a certificate that the request had been made. By the 1st November, 2017, all of the extradition papers were served on the applicant. These outlined the nature and contents of the extradition offences alleged against him. The extradition proceedings were adjourned from time to time to permit the applicant prepare his defence to those proceedings. On the 6th December 2017, the applicant's solicitor filed a Notice of Objection to those proceedings.
On the 13th February 2018, the applicant's solicitor wrote to the DPP requesting that she consider prosecuting the applicant in this jurisdiction in respect of the extradition offences. The legislative basis for asserting that the DPP could prosecute him in this jurisdiction was not set out therein. In his statement grounding the application for judicial review, the applicant relied upon the Sexual Offences (Jurisdiction) Act, 1996. His solicitor avers in the grounding affidavit that his client is an Irish citizen. The extradition papers identified him as both a U.S and Irish citizen. An Irish national who commits certain sexual offences abroad, including sexual assault on a child and possession of child pornography, commits an offence contrary to Irish law.
It is worth observing that at the hearing of the application for leave to apply for judicial review, it appeared to be suggested by counsel that there was an issue with whether the sentence he had served in Ireland was for all or part of the extradition offences. That latter aspect was not pursued at the hearing of this application. It is extremely surprising that at the time of the application for leave, and despite the time that had elapsed since his arrest, the applicant's lawyers were not in a position to be certain about the past and present offences their client faced and to advance their legal case with precision.
The backdrop to the applicant's request is to be found in the provisions of s. 15(1) of the Act of 1965. This subsection provides that extradition shall not be granted for an offence which is also an offence under the law of this State, if the DPP (or where appropriate the Attorney General) is considering but has not yet decided whether to bring proceedings for the offence or proceedings for the offence are pending in the State against the person. Therefore, even where no proceedings are pending for the extradition offences in this State, if the DPP was considering the bringing of proceedings, the extradition of the applicant could not be granted.
By letter dated 19th February 2018, the DPP replied that she had not received a file concerning the specified offences in the extradition request from An Garda Síochána. The DPP stated that her office was not considering bringing proceedings against the applicant for the specified offences nor were criminal proceedings pending in the jurisdiction. She went on to state that the office does not have any investigative function. She also stated that before the office could consider a prosecution they would need to have received an investigation file. She stated that this was without prejudice to the question as to whether all of the offences alleged against the applicant could be the subject of a prosecution in this jurisdiction. Finally, the DPP stated that they had forwarded a copy of the applicant's letter to the Chief State Solicitor's Office who had carriage of the case and requested that all future correspondence be addressed to that office.
On 5th March 2018, solicitors for the applicant wrote to the Chief State Solicitor stating that their client was advancing in years and in ill-health. The letter stated that, given he had already been extradited from the USA, if he was now to be prosecuted for the matters outlined in the US extradition request, he desired to be prosecuted in this jurisdiction. The letter went on to say: -
‘As is evident from the DPP's response, the investigation file needs to be considered there before any such decision can be made by that office. In the circumstances we would be obliged if you would promptly make arrangements with the US authorities or otherwise to facilitate the procurement of the file and its furnishing to the DPP so that the DPP can give due consideration to our clients” request.’
The Chief State Solicitor replied on the 13th March 2018, stating that the solicitors for the applicant appeared to have misunderstood the situation. She stated that the applicant was the subject of a pending prosecution in the US arising on foot of an investigation by law enforcement authorities there. She said that An Garda Síochána has never investigated the alleged offences in question nor has any file ever been submitted to the office of the DPP by them. The letter went on to state: -
‘It is not the role of the DPP to seek investigation files from law enforcement agencies in other jurisdictions where criminal proceedings have already been instituted. Nor is it the role of the Attorney General to do so on behalf of the DPP or your client.’
It appears that there was a further letter from the applicant's solicitors to the Chief State Solicitor on the 23rd March, 2018 but that is not exhibited. The Chief State Solicitor sent a further letter dated 26th April, 2018 reiterating that she had made clear both the role of the Attorney General and of the DPP in her earlier letter. She stated that: -
‘In effect, your client would appear to be endeavouring to procure an investigation and prosecution of himself in Ireland, notwithstanding the fact that proceedings are at a very advanced stage in the United States. We have already made it clear that neither the Attorney General nor the DPP has a role in bringing about such a state of affairs.’
The extradition proceedings were listed for mention before the High Court on a number of dates during that period. On the 30th May 2018, counsel for the Attorney General again sought a hearing date as he had on previous occasions. Counsel for the applicant objected on the basis that judicial review proceedings were being contemplated. Counsel for the Attorney General made reference to the delay that had already occurred.
Despite the objection, I fixed the 17th June, 2018 as the hearing date as there was an obligation to act without delay and it appeared that the extradition proceedings were ready to proceed. I indicated that if any application for judicial review was to be brought, it should be brought in the ordinary course before the judicial review judge. This is the usual procedure where judicial review applications are brought in respect of matters which touch or relate to a pending extradition request, as another High Court judge is assigned to...
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Attorney General v Mullan
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The Attorney General v Mullan
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