High Court: Convicted paedophile facing extradition to US loses application to be tried in Ireland

About this case:

• Citation:
  [2018] IEHC 585
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Aileen Donnelly

Finding that there was no right to be considered for prosecution in the State, Ms Justice Aileen Donnelly was also satisfied that the application was out of time, and should also be refused on the basis of lack of candour at the ex parte stage.

Background

On his release from Midlands Prison, Portlaoise in October 2017, Mr Daniel Mullan was arrested on foot of a warrant of arrest issued by the High Court under s. 27 of the Extradition Act 1965 as amended. Mr Mullan had just served a sentence of imprisonment 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.

In extradition proceedings, the USA seeks Mr Mullan for prosecution in respect of four alleged offences:

• (i) A count of sexual exploitation of a child in effect the production of child pornography between January 1999 and December 2006;
• (ii) A count of transportation of a minor with intent to engage in sexual activity in or about December 1999;
• (iii) Two counts of possession of child pornography (between January 17 2014 and August 17, 2017).

The charges being preferred against Mr Mullan in the USA arose out of an investigation in New York, USA.

Application for judicial review

In judicial review proceedings in the High Court, Mr Mullan sought 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 his application for judicial review, Mr Mullan sought, inter alia, the following reliefs:

• (i) An order of mandamus requiring the DPP to consider the prosecution of Mr Mullan in this jurisdiction and to take all necessary steps towards that end.
• (ii) An order of mandamus requiring the State Respondents to procure or to assist in procuring the investigation file in relation to Mr Mullan for consideration by the DPP.
• (iii) A declaration that Mr Mullan is entitled to have consideration given to the prospect of his prosecution in the State in circumstances where the alleged offences are also offences under Irish law.

Grounds of Opposition

In opposing the application for judicial review, the DPP and the State Respondents essentially relied on the same grounds, namely due to:

• (i) The delay in making the application, that it was out of time;
• (ii) The lack of candour, in that Mr Mullan did not draw the attention to the High Court to relevant, binding, and decisions;
• (iii) The lack of any substantive right, or legal basis for the entitlement to the reliefs sought in the application.

Considering the grounds of opposition, Ms Justice Donnelly was not satisfied that the application for leave was made within three months from the date when grounds for the application first arose, therefore Mr Mullan was out of time in respect of the reliefs against the DPP and the State Respondents.

Ms Justice Donnelly said that it was ‘a curious feature of the case’ that Mr Mullan did not apply for an extension of time to make the application, however considering all the circumstances of the case, Ms Justice Donnelly was satisfied that there was ‘no good reason to extend time’ even if an extension had been applied for.

Considering the second ground of opposition, Ms Justice Donnelly said that it was a ‘well-established rule that all parties making ex parte applications – including applications for leave to apply for judicial review – are subject to a duty of utmost good faith’. In this regard, it was noted that ‘at no stage during the leave application was the judge made aware that claims of entitlement to be prosecuted in this jurisdiction had been the subject matter of two cases related to requests by the US for extradition in respect of offences which were also offences in Irish law’ (Attorney General v Damache [2015] IEHC 339 and Marques v DPP [2014] IEHC 443, [2016] IECA 373). 

At the leave stage, Mr Justice Seamus Noonan had clearly asked for information in an area in which he was not a specialist, which Ms Justice Donnelly said should have made Counsel’s duty of good faith even more obvious. Given the fact that counsel was experienced in this area, Ms Justice Donnelly said that this was a particularly inexplicable failing on counsel’s part.  

In all the circumstances, judicial review was also refused on the basis of lack of candour at the ex parte stage.

Considering the final ground of opposition, Ms Justice Donnelly said that the clear and authoritative principles set out in Marques, ‘which relied upon the distinct line of authority which covered the central issue as to the right to be prosecuted in this jurisdiction, are directly on point in relation to rights concerning prosecution’. Ms Justice Donnelly was satisfied that the lack of a right to be prosecuted had a direct impact on whether there was a right to be considered for prosecution, and that similar types of arguments of fairness raised in his particular circumstances were rejected in Marques.

Finding that Mr Mullan had not discharged the burden of proving that the right to be considered for prosecution exists and had been violated, Ms Justice Donnelly was satisfied that judicial review should also be refused on the substantive point in the proceedings.

• by Seosamh Gráinséir for Irish Legal News