Section of High Court judgment refusing terror extradition set aside

Mr Damache, 51, an Algerian-born Irish citizen, is awaiting trial in the US on charges of conspiring to provide material support for terrorists and attempted identity theft to facilitate an act of international terrorism.

It is alleged that Mr Damache, AKA “theblackflag”, conspired with US woman Colleen LaRose, AKA “Jihad Jane”, and others to carry out terror attacks in Europe and Asia. In 2014, LaRose was jailed for conspiring with Mr Damache to try to kill Swedish artist Lars Vilks.

Mr Damache was involved in lengthy extradition proceedings brought by the State. However, the High Court refused to order his surrender holding that there were “substantial grounds for believing that Mr Damache will be at real risk of being subjected to inhumane and degrading treatment if extradited to the USA”.

Mr Damache was released from custody but subsequently arrested and extradited from Spain. He is now in prison in the US awaiting trial.

The State yesterday successfully appealed one section of the High Court’s judgment, which appeared to suggest that the Director of Public Prosecutions is obliged to consult other member states in deciding whether or not to prosecute terrorism offences in Ireland.

Remy Farrell SC, counsel for the State, told the Court of Appeal that the particular section of the High Court’s judgment was of “immense importance” and it was not “immediately clear quite how far reaching” its significance and impact was. Mr Farrell said the State was not concerned with quashing the judgment but with its consequences.

In the High Court judgment, Ms Justice Aileen Donnelly said she was of the view that section 6(9) of the Criminal Justice (Terrorism Offences) Act of 2005, when read in conjunction with article 9, paragraph 2 of the Framework Decision on Combating Terrorism, “required the DPP to consider this issue of jurisdiction at the point at which she herself is considering prosecution”.

In light of the judgment, any decision to prosecute, or not prosecute, terrorism offences in Ireland could be invalid if the DPP does not consult other member states in making its decision, Mr Farrell submitted.

Setting aside that particular section of the judgment yesterday, Mr Justice John Hedigan said the High Court judge, “in trying to cover all possible angles”, was undoubtedly motivated “by the admirable desire to have the case concluded in the most efficient way possible consistent with justice. Bearing in mind the convoluted history of the case, this was an apparently good approach.”

“It is regrettable however, that in her efforts to do this, at the very last hurdle, she overstepped the bounds of her jurisdiction”, which was a “strictly limited one”.

He said the court had no jurisdiction to go beyond the grounds allowed and reliefs sought (in Mr Damache’s Judicial Review proceedings). They were “clearly strictly limited” to whether the DPP has to give reasons for its decision (not to prosecute Mr Damache in Ireland) in the circumstances of this case in the event of a finding that the decision was reviewable.

Mr Justice Hedigan said the High Court judge’s decision in Part 12 of the judgment was made without any pleadings or submissions to assist her on the discrete issue. The parties had no notice or opportunity to advance any argument on the issue.

As a result, the relevant section of the judgment was set aside and the appeal allowed. No practical purpose was served in remitting the matter back to the High Court given Mr Damache’s current situation in the US, the judge said. Any issues relating to the 2005 Act will have to await further consideration by the High Court and an opportunity for all parties to make whatever arguments they wish.

Mr Justice George Birmingham and Mr Justice Alan Mahon both said they agree with Mr Justice Hedigan’s decision.

Ruaidhrí Giblin, Ireland International News Agency Ltd.