The Attorney General v Mullan
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 12 April 2019 |
| Neutral Citation | [2019] IECA 114 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [2018 No. 498] |
| Date | 12 April 2019 |
[2019] IECA 114
THE COURT OF APPEAL
Birmingham P.
Birmingham P.
Whelan J.
McCarthy J.
[2018 No. 498]
Committal – Extradition – Proportionality – Applicant seeking to appeal from the decision committing him to prison to await the order for his extradition – Whether extradition was disproportionate
Facts: The applicant, Mr Mullan, appealed to the Court of Appeal from a decision of the High Court (Donnelly J) of 14th December 2018, committing the applicant to prison to await the order of the Minister for Justice and Equality for his extradition to the United States of America pursuant to s. 29 of the Extradition Act 1965. The applicant’s extradition was sought so that he may be prosecuted in the Federal Courts of the United States for four alleged offences: sexual exploitation of a child, transportation of a minor with intent to engage in sexual activity and two counts of possession of child pornography. The applicant submitted that the High Court erred in law in that it should have not made the impugned order in all of the circumstances given his multiple health difficulties. It was contended that extraditing a 79-year old Irish citizen in very poor health was disproportionate and not in the public interest. The applicant contended that s. 15 must be interpreted in light of the overall statutory framework. He said that it envisaged that where the alleged offence is an offence under Irish law, then there should have been consideration given as to whether to prosecute in this jurisdiction or not. He unsuccessfully sought to achieve a situation where this received consideration. It was submitted that the net effect of the absence of such consideration was that the Minister’s discretion to refuse his extradition had been unfairly abrogated. It was said that the discretion the Minister would ordinarily have under s. 15(2) of the 1965 Act to refuse extradition in respect of alleged offences that are also offences under Irish law had been rendered ineffective by reason of the failure on the part of the DPP/Attorney General to even consider prosecuting the applicant in this jurisdiction. The applicant said that the costs order was erroneous, that the order was made even though the applicant was an unwilling participant in the extradition proceedings.
Held by Birmingham P that, in relation to the issues regarding the applicant’s health, he had spent a significant period of time in custody in this jurisdiction and the Irish prison system had been able to cope. Birmingham P held that there was no reason whatever to believe that the US Federal prison system would not be able to cope as well. Birmingham P was satisfied that the Judge was quite entitled to conclude that it would not be contrary to the public interest or disproportionate if extradition proceeds. In a situation where Birmingham P did not believe there was any substance in the arguments advanced in relation to s. 15, it followed equally that Birmingham P did not see any substance in the point made in relation to committal. Birmingham P was satisfied that the applicant had failed to establish that the High Court erred in ordering that the unsuccessful respondent to the application for committal to await surrender should pay the costs of the proceedings.
Birmingham P held that the decision of Donnelly J would be upheld and that the appeal would be dismissed.
Appeal dismissed.
This is an appeal from a decision of the High Court (Donnelly J) of 14th December 2018, committing the applicant to prison to await the order of the Minister for Justice & Equality for his extradition to the United States of America pursuant to s. 29 of the Extradition Act 1965. The applicant's extradition is sought so that he may be prosecuted in the Federal Courts of the United States for four alleged offences: sexual exploitation of a child, transportation of a minor with intent to engage in sexual activity and two counts of possession of child pornography.
The applicant says that there are two fundamental issues to be decided in the appeal:
(i) Was the High Court correct as a matter of law to permit the applicant's extradition?
(ii) Even if the answer to that question is yes, was the High Court correct to require him to pay the costs of the application?
It is said that the applicant's grounds of appeal can be conveniently divided into five categories:
(i) Health Issues.
(ii) Public Interest/Proportionality.
(iii) A Section 15 Point.
(iv) The Committal to Prison.
(v) Costs.
(i) Health Issues
The High Court Judge is criticised for focusing all her attentions on issues relating to sight and mobility/ability to walk and it is said that in doing so, failed to see the wider picture and simply failed to have adequate regard to the collective and cumulative effect of his various medical conditions and ailments. The applicant submits that the High Court erred in law in that it should have not made the impugned order in all of the circumstances given his multiple health difficulties. There was evidence, he says, before the High Court that he was suffering from:
(a) blindness;
(b) inability to walk;
(c) morbid obesity;
(d) chronic lower vertebral compression and excruciating and constant pain;
(e) chronic venous engorgement of the legs;
(f) atrial fibrillation;
(g) chronic infection and autoimmune compromise;
(h) peripheral neuropathy;
(i) cirrhosis;
(j) hypothyroidism;
(k) muscular degeneration;
(l) chronic cardiac failure;
(m) anxiety; and
(n) cellulitis.
The complaint is made that the Judge in the High Court focused on issues relating to sight and mobility/ability to walk, but failed to consider the whole picture and failed to recognise that the cumulative effect of the many medical difficulties present required that extradition be refused.
It is not disputed that the offences charged are serious, but it is said that insufficient attention was paid to the fact that they were also offences contrary to Irish law which could be prosecuted here. It is contended that extraditing a 79-year old Irish citizen in very poor health is disproportionate and not in the public interest.
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