The Attorney General v Marques

• Jurisdiction: Ireland
• Judge: MR JUSTICE MICHAEL PEART
• Judgment Date: 12 December 2016
• Neutral Citation: [2016] IECA 374
• Date: 12 December 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 374 RECORD NUMBER: 642/2015

[2016] IECA 374

COURT OF APPEAL

Peart J.

PEART J.

BIRMINGHAM J.

SHEEHAN J.

Neutral Citation Number: [2016] IECA 374

RECORD NUMBER: 642/2015

BETWEEN:

THE ATTORNEY GENERAL

RESPONDENT/APPLICANT

AND

ERIC EOIN MARQUES

APPELLANT/RESPONDENT

AND

IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

AMICUS CURIAE

Extradition – Breach of constitutional rights – Sentencing – Appellant seeking to appeal against High Court order – Whether appellant’s extradition ought to have been refused so that his constitutional rights are protected and vindicated

Facts: The appellant/respondent, Mr Marques, was ordered by Donnelly J under s. 29 of the Extradition Act 1965, on the 16th December, 2015, to be committed to prison to await the order of the Minister for Justice for his extradition. The appellant appealed to the Court of Appeal against that order contending that if he is extradited, and if he is convicted by a court in the State of Maryland, he will be exposed to a sentencing regime there which, in a particular respect, would be unconstitutional in Ireland. That regime was described in affidavits by US attorney Mr Dratel, who swore three affidavits on the appellant’s behalf in the High Court, as being one where the judge upon a conviction is entitled to, and in fact is obliged to, take account of other uncharged conduct of the convicted person, as well as conduct of which he has been in fact acquitted, and to do so on the basis that such conduct is proven on a standard which he described as “the preponderance of the evidence test” in other words a test which equates to the civil standard in Ireland, namely the balance of probability, rather than the more exacting criminal standard of beyond a reasonable doubt. The appellant submitted that to be punished in this manner in respect of either such acquitted conduct, or other conduct not proven to a criminal standard of proof is such a fundamental breach of his constitutional rights, and such a flagrant denial of justice, that his extradition ought to have been refused so that these fundamental rights are protected and vindicated. He submitted that the trial judge erred by failing to have proper regard to the egregious nature of the regime to which he will be exposed if extradited and acquitted, as deposed to by Mr Dratel.

Held by Peart J that the facts relied on by the appellant could not by any stretch of the imagination be compared to the heinous and egregious prospect of a conviction based upon evidence or confessions of others which has been extracted through the use of torture. Peart J held that that, unlike the apprehended regime in this case, is something that very clearly breaches an international norm, as explained in great detail in the Court’s judgment in Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1.

Peart J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT OF MR JUSTICE MICHAEL PEART DELIVERED ON THE 12th DAY OF DECEMBER 2016:

1 This appeal is against the order made on the 16th December, 2015, by Ms. Justice Donnelly under s. 29 of the Extradition Act, 1965, as amended (‘the Act of 1965’) whereby she ordered that the appellant be committed to prison to await the order of the Minister for Justice for his extradition, as provided therein.

2 When the application for his extradition came before the High Court, the Appellant raised a considerable number of issues by way of opposition to the Application. However, while there are many grounds of appeal contained in the notice of appeal itself, just a single ground is now relied upon.

3 That single ground essentially is that, if he is extradited, and if he is convicted by a court in the State of Maryland, he will be exposed to a sentencing regime there which, in a particular respect, would be unconstitutional here. That regime has been described in affidavits by US attorney, Joshua L. Dratel, who swore three affidavits on the appellant's behalf in the High Court, as being one where the judge upon a conviction is entitled to, and in fact is obliged to, take account of other uncharged conduct of the convicted person, as well as conduct of which he has been in fact acquitted, and to do so on the basis that such conduct is proven on a standard which he describes as ‘the preponderance of the evidence test’ in other words a test which equates to the civil standard here, namely the balance of probability, rather than the more exacting criminal standard of beyond a reasonable doubt.

4 The appellant submits that to be punished in this manner in respect of either such acquitted conduct, or other conduct not proven to a criminal standard of proof is such a fundamental breach of his constitutional rights, and such a flagrant denial of justice, that his extradition ought to have been refused so that these fundamental rights are protected and vindicated. He submits that the trial judge erred by failing to have proper regard to the egregious nature of the regime to which he will be exposed if extradited and acquitted, as deposed to by Mr. Dratel.

5 I will come to the trial judge's conclusions on that issue in due course, but before I do so, I will refer to some of what is deposed to by Mr. Dratel.

6 In his first affidavit, Mr. Dratel deals with a number of issues, but at part D thereof he deals with the sentencing regime to which the appellant will be subject if extradited and convicted of the offences for which is extradition is sought. He describes the applicable Sentencing Guidelines where numerical values are assigned to conduct and other factors which will influence the trial judge to either increase or decrease the ultimate sentence to be imposed in order to arrive at the appropriate sentence for the offence and for the particular offender.

7 He goes on to describe how the apparently mandatory nature of the Guidelines was ameliorated by the US Supreme Court decision in United States v. Booker 543 U.S. 220 (2005) when it ruled that thereafter, the Guidelines would be advisory only, and that sentencing would be governed by the entirety of 18 USC, ss. 3553 (a) which sets out seven factors to be taken into account by a sentencing court, one of which is ‘the kinds of sentence and the sentencing range established’ under the Guidelines. In practice, he states, the sentencing process will commence by correctly calculating the applicable guideline range for the offence. There can then be ‘variances’ from the guideline sentence, but these must be objectively justified by reason to ‘articulable criteria’ and must ensure that the justification for such variance is sufficiently compelling.

8 Mr. Dratel continues at paragraph 61 of his affidavit to state that the appellant ‘would most likely, if convicted, receive a sentence within his applicable guideline range …’ and that ‘such a sentence would survive challenge on appeal’, and that ‘a guideline sentence is the default position’. He refers also to the fact that the charges facing the appellant carry both the minimum sentence of 15 years and a maximum sentence of 30 years. He goes on to state that ‘absent a motion authorising the court to impose a sentence below the statutory minimum, the appellant faces a mandatory 15 year prison sentence after conviction, regardless of his applicable guidelines range, of which he will be required to serve 13 years, allowing for good conduct time. He expresses his view also in this affidavit that the guideline sentences are based on the offence and not the character of the offender, and that in his experience most District Courts consider the guidelines to be ‘paramount almost to the exclusion of other s. 3553(a) factors’. He supports that statement with statistics. As for the guideline range for the extradition offences alleged against the appellant, he carries out a calculation of the likely guideline sentence in the event that he is convicted of those offences.

9 In that regard, he states that the ‘base offence level’ is 22 which, under the guidelines, would increase to 24 because of the nature of the pornographic materials at issue in this case. He goes on to say that if the prosecution maintained that the motivation for the offences was monetary gain, the level would increase to 29 at a minimum. In addition, he states that the nature of the pornographic material (i.e. portraying sadistic or masochistic conduct or other depictions of violence) would again raise the level by 4 levels to 33. He deposes also that the offences probably involve a computer and 600 or more images, which in turn would raise the offence level to 35. Finally states that if the criminal activity qualifies for the enhancements for pecuniary gain the level would again increased to 38, and further to 39 if that financial gain were to be proven to exceed $30,000. In addition, he states, there could be an additional raising of the level from 39 by either 2 or 4 levels if the appellant was found to be an organiser, leader, manager or supervisor of the criminal activity, and where the number of participants in the activity is 5 or more.

10 Mr. Dratel goes on to state that a timely plea of guilty could merit a 2 or 3 level reduction. Importantly for the appellant's submission on this appeal, he deposes at paragraph 82 of his first affidavit that in determining the applicability of any adjustments, the sentencing court must take into account all relevant conduct, which includes the conduct of co-conspirators were that conduct was reasonably foreseeable. Importantly also, he deposes at paragraph 85 thereof that in deciding on the sentence to be imposed the sentencing court can consider uncharged conduct or even acquitted conduct, and that the burden of proof in that regard is by a preponderance of the evidence, enabling the sentencing court to find liability even though a jury has failed to find the evidence sufficient beyond a reasonable doubt.

11 Mr. Dratel's...