Supreme Court: Man accused of facilitating access to child pornography loses extradition appeal
A man who has been accused of creating a website facilitating access to child pornography, and whose surrender to the United States has been ordered, has lost his appeal to the Supreme Court in which he raised issues with the role of the Minister for Justice and Equality under the Extradition Act 1965.
Affirming the decisions of the High Court and Court of Appeal, Mr Justice Peter Charleton said that while the Minister has the discretion to refuse, the role involves fulfilling international obligations on behalf of the state, and that the Minister has the final political decision.
On 1 August 2013, Eric Eoin Marques was arrested in Dublin in consequence of a provisional arrest for extradition request from the United States of America. He was refused bail and has remained in custody.
The allegation facing Mr Marques was that from Dublin, he had organised an online site facilitating access to pornographic images involving children. The Director of Public Prosecutions, knowing of the extradition request, declined to prosecute him in this jurisdiction. That decision was made notwithstanding that he had offered to plead guilty to at least some of the potential charges that might have been brought against him in Ireland. Thereafter, Mr Marques engaged, unsuccessfully, in proceedings seeking judicial review of the decision not to prosecute him in Ireland.
Meanwhile, in August 2013, a formal extradition request was received, and the Minister for Justice and Equality certified that the matter should proceed.
After Mr Marques’ failed judicial review proceedings regarding the decision not to prosecute him in Ireland, and upon the refusal of his application to the European Court of Human Rights for a stay on his extradition, the State authorities informed Mr Marques in May 2017 that his extradition would proceed.
Thereafter, his solicitors asked the Minister for clarification as to why the decision had been taken to extradite him. Further, a refusal of extradition was sought.
On 1 June 2017, the Minister signed an order under section 33 of the Extradition Act 1965 directing the surrender of Mr Marques to the American authorities.
The present judicial review proceedings
The present proceedings were commenced in June 2017. In November 2017, the High Court refused all relief sought by Mr Marques.
In June 2018, the Court of Appeal affirmed the decision of the High Court, stating that the Minister’s discretion under s. 15(2) of the Extradition Act 1965 to refuse extradition did not create an individual right not to be extradited.
The Supreme Court granted leave on the following three issues of “general public importance” within the meaning of Article 34.5.3º of the Constitution:
- The correct interpretation of section 15(2) of the Extradition Act 1965 and the role of the Minister for Justice and Equality thereunder;
- Whether the Minister is under an obligation to seek reasons from the Director of Public Prosecutions as to why a suspect is not being prosecuted in Ireland, where such a possibility reasonably arises; and
- Whether the reasons given by the Minister in making a decision to extradite this suspect were adequate.
Correct interpretation of section 15
On the first issue, Mr Justice Charleton explained that, originally, section 15 of the Extradition Act 1965 provided simply that extradition “shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.”
As now recast, pursuant to section 27 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012, s15(2) states: “Extradition may be refused by the Minister for an offence which is also an offence under the law of the State if the Director of Public Prosecutions or the Attorney General has decided either not to institute or to terminate proceedings against the person claimed in respect of the offence”.
Section 33 (1) states, “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…”
On behalf of Mr Marques, it was argued that since s.33(1) “…already provided for a ministerial discretion to refuse extradition, section 15(2) had to have a meaning beyond this and that it cannot be merely permissive…”.
Mr Justice Charleton said that both the reasoning of Ms Justice Aileen Donnelly in the High Court, and the reasoning of Mr Justice Michael Peart in the Court of Appeal, were correct. He said, rather than there being a distinction between the discretion exercised in s.15 and that in s.33 – the amendment of s.15 “merely makes provision for a new situation that the legislation did not otherwise cover”.
Mr Justice Charleton added, “Sections 23, 24, 27 and 29 all put the final decision into the hands of the Minister. This is not done by way of differentiating between various situations. Rather, it is congruent with the international country-to-country nature of extradition processes and with the retention by the State of its sovereign right not to extradite”
Noting that this case was not about any circumstances in which Mr Marques’ health might engage the European Convention on Human Rights or the Constitution, Mr Justice Charleton said the issue here was the “final decision-making power of Government as the sovereign contracting party with another state or states in relation to the surrender of suspects. It is within the rights of the State to surrender suspects and the law so provides. It is also a residual entitlement, perhaps leading to inter-governmental diplomatic controversy, but no more than that, to refuse”
Emphasising the Minister’s entitlement to refuse extradition, Mr Justice Charleton said the role of the minister involves fulfilling international obligations on behalf of the state, separate from the court process, and that the Minister has the final political decision.
No obligation to seek reasons from the DPP
On the second issue, Mr Justice Charleton said the Minister did not have an obligation to seek reasons from the DPP as to why a suspect not being prosecuted in Ireland. Again, agreeing with the reasoning of the lower courts, Mr Justice Charleton emphasised the need for the DPP’s independence in its decision-making process and that the Minister has a separate function.
On the third issue, Mr Justice Charleton was satisfied that the reasons given by the Minister were adequate in all the circumstances of the case and also in the context of preceding court decisions.
- by Seosamh Gráinséir for Irish Legal News
© Irish Legal News Ltd 2019