The Attorney General -v- Davis,  IESC 27 (2018)
|Party Name:||The Attorney General, Davis|
THE SUPREME COURT
[Supreme Court Appeal No. 2017/30]
[Court of Appeal Record No. 2016/419]
[Record No. 2014/3 EXT]
IN THE MATTER OF THE EXTRADITION ACT 1965, AS AMENDED
THE ATTORNEY GENERALApplicant/Respondent-and-
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 27th day of June, 2018
Gary Davis (also referred to in this judgment as “the appellant”) is an Irish citizen who suffers from Asperger’s Syndrome. In January, 2014, the United States of America (“the U.S.”) requested the surrender and extradition of Mr. Davis so that he can stand trial in that country on charges of conspiracy to distribute narcotics, conspiracy to commit computer hacking and conspiracy to commit money laundering. The charges are connected to Mr. Davis’s alleged role as an administrator of an anonymous black market website, known as “Silk Road”, which facilitated, inter alia, the sale of illicit drugs. Mr. Davis opposes his extradition to the U.S., and to that end he raised a number of objections, all of which were initially presented on his behalf before the High Court. None were successful, and by judgment and order dated the 12th August, 2016, McDermott J. directed the extradition of the appellant. His appeal against that judgment was dismissed by the Court of Appeal, which affirmed the original order.
The appellant now brings a further appeal to this Court. His essential ground of objection, which has been advanced in all courts, is that there is a real risk, given the severity of his mental disorder and the state of his psychological health, that pre-trial and/or post-conviction incarceration in the U.S. will cause his condition to deteriorate and could foreseeably put his life at risk. Thus he opposes his extradition on the basis of anticipated breaches of his right to life, his right to bodily integrity, and his right to be free from inhuman and degrading treatment, and also by reference to his right to respect for his private and family life.
Background and Procedural History
On the 5th December, 2013, following the filing of an indictment in the United States District Court for the Southern District of New York, United States Magistrate Judge James C. Francis IV issued a warrant for the arrest of Mr. Davis. It was alleged that he had committed the following offences:
- Count 1: Conspiracy to distribute narcotics in violation of 21 U.S.C. §841(h), 812, 841(a)(1), 841(b)(1)(A) and 846;
- Count 2: Conspiracy to commit computer hacking in violation of 18 U.S.C. §1030(a)(2) and 1030(b); and
- Count 3: Conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), 1956(a)(1)(B)(i) and 1956(h).
The maximum penalty in respect of each count is: life imprisonment in respect of Count 1; five years of imprisonment in respect of Count 2; and twenty years of imprisonment in respect of Count 3. If extradited to the U.S., it is probable that the appellant will be incarcerated pending his trial.
The offences in question are alleged to have occurred between the 6th June, 2013, and the 2nd October, 2013. It is claimed that Mr. Davis served as a site administrator of a website known as “Silk Road”, an online black market notorious as a platform for selling illicit drugs. The site, which was shut down by the Federal Bureau of Investigation (“the FBI”) in October, 2013 and again in November, 2014, existed as part of the dark web, a collection of thousands of websites that use anonymity tools to hide their IP addresses. Silk Road is said to have facilitated the sale and purchase of, inter alia, heroin, cocaine, crack cocaine, ecstasy, LSD and methamphetamines. Purchasers of illegal narcotics from the site paid using the cryptocurrency Bitcoin, with Silk Road’s revenue being based on a commission of between 10% and 15% of sales revenue. Such commissions are stated to have earned the site tens of millions of dollars. The appellant, who is said to have operated under the pseudonym ‘Libertas’, is alleged to have been paid $1,500 per week for his services.
During the course of its investigations into Silk Road, the FBI arrested a U.S. citizen, Ross William Ulbricht, whom it believed was the founder, owner and operator of the site. It is alleged that the appellant’s involvement was identified from information extracted by the FBI from Mr. Ulbricht’s seized computers. In February, 2015, Mr. Ulbricht was sentenced to life imprisonment without the possibility of parole for drug trafficking and other crimes associated with his operation of this site. That sentence was confirmed by the U.S. Court of Appeals for the Second Circuit in a judgment dated the 31st May, 2017.
On the 3rd January, 2014, the United States made a request to Ireland for the appellant’s extradition; the request was received the same day. On the 9th January, 2014, the High Court issued a warrant for his arrest pursuant to section 26(1)(b) of the Extradition Act 1965, as amended (“the 1965 Act”). The appellant was arrested on foot of the warrant by Sergeant Martin O’Neill on the 13th January, 2014. He was conveyed to Bray Garda Station, where he was processed in the usual way, following which he was brought before the High Court. He was granted bail on certain conditions, and remains on continuing bail pending the conclusion of this appeal. As part of this judicial journey the case has been adjourned from time to time so as to facilitate the generation and exchange of the necessary documentation, including the appellant’s papers supporting his objections to extradition and the appellate documents now relied upon.
The Extradition Act 1965
This is as convenient a juncture as any to set out the statutory provisions of relevance to this appeal. Those of immediate importance are found in section 29(1), (3) and (5) of the 1965 Act. They read as follows:
“29.—(1) Where a person is before the High Court under section 26 or 27 and the Court is satisfied that—
(a) the extradition of that person has been duly requested, and
(b) this Part applies in relation to the requesting country, and
(c) extradition of the person claimed is not prohibited by this Part or by the relevant extradition provisions, and
(d) the documents required to support a request for extradition under section 25 have been produced,
the Court shall make an order committing that person to a prison (or, if he is not more than twenty-one years of age, to a remand institution) there to await the order of the Minister for his extradition.
(3) The Court, on making an order under subsection (1), shall—
(a) inform the person to whom it relates that he will not be surrendered, except with his consent, until after the expiration of fifteen days from the date of his committal and inform him also of the provisions of section 4.2° of Article 40 of the Constitution (which relates to the making of a complaint to the High Court by or on behalf of any person alleging that that person is unlawfully detained), and
(b) cause a certificate of the committal to be sent forthwith to the Minister.
(5) No appeal shall lie to the [Court of Appeal] from an order of the High Court under this section, except on a point of law.”
After the passing of the Thirty-third Amendment of the Constitution and the enactment of the Court of Appeal Act 2014, a further appeal can be made to this Court where the threshold set out in Article 34.5.3° of the Constitution is satisfied. It is pursuant to these provisions that the subject appeal has arrived in this Court.
The Judgment of the High Court
The judgment of that Court was delivered by McDermott J. on the 12th August, 2016 ( I.E.H.C. 497), after a lengthy hearing spanning over several days. It is unnecessary to consider in any great detail many of the issues addressed in the judgment, for they play no continuing role in the appeal before this Court. For completeness, however, the following should be noted. The learned judge was satisfied that the requirements of a valid extradition request under Part II of the Act were satisfied (paras. 14-15; all such references are to the judgment of the High Court). So too did he conclude that the offences specified in the warrant corresponded to offences contrary to Irish law (paras. 18-40). He rejected a submission by the appellant that the charges on foot of which extradition is sought are bad for duplicity (paras. 41-52). He also considered and rejected submissions that the appellant’s extradition would breach the rule of specialty (paras. 53-64) and that the appellant would be exposed to a potential mandatory sentence in respect of Count 1 which would be unfair, disproportionate or unconstitutional if applied in this jurisdiction (para. 65). The learned judge was further satisfied that there was no substance to the appellant’s argument that extradition should not be granted because the offences with which he is charged were allegedly committed in Ireland (also para. 65).
The grounds of objection of continuing relevance at this stage are those addressed at para. 66 et seq. of the judgment; in short, these arguments relate to the apprehended consequences for the appellant’s health if extradited. In this context he claims that he has exhibited symptoms of Asperger’s Syndrome throughout adolescence and that he suffers from depression and has threatened to commit suicide if extradited. He anticipates being housed in a maximum security facility pending trial and following conviction, and believes that the conditions in such facility will place his health and life at great risk, particularly given his medical history. He submitted to the High Court that he would be subjected to an unlawful and unconstitutional sentencing process and a penal regime which, if applied in Ireland, would constitute a violation of his fundamental rights, and in particular his rights under Articles 38, 40.3...
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