[2017] IEHC 717
THE HIGH COURT
[2017 No. 473 JR]
ERIC EOIN MARQUES
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Ms. Justice Donnelly delivered the 30th day of November, 2017
Introduction
1. On 1st August, 2013, the applicant was arrested on foot of a provisional warrant issued by the High Court earlier that day pursuant to a request by the United State of America (“USA”) for his arrest pending a formal extradition request. The applicant has been in custody ever since, having unsuccessfully contested his extradition in the High Court and Court of Appeal and having been refused leave to appeal by the Supreme Court. In aid of his objection to extradition, the applicant brought proceedings against the Director of Public Prosecutions (“the DPP”) seeking the reasons why she was not prosecuting him in this jurisdiction for offences of possession and distribution of child pornography. The applicant offered to plead guilty in this jurisdiction to what he claims are the same offences for which his extradition has been sought. If he were to be prosecuted for those alleged offences in this jurisdiction, he could not be extradited in relation to them. The applicant was unsuccessful in his claim of entitlement to the DPP’s reasons.
2. When all avenues of challenge to his extradition were finalised, including an application to the European Court of Human Rights (ECtHR) to stay his extradition, the Minister for Justice and Equality (“the minister”) made an order under s. 33 of the Extradition Act, 1965 (“the Act of 1965”), directing the surrender of the applicant to the relevant authorities of the United States of America. On 6th June, 2017, the applicant sought leave to apply for judicial review of the decision of the minister to extradite him. The matter was adjourned to this Court for the purpose of hearing the application for leave. It was agreed between the parties that there should be a “telescoped” application for leave to apply for judicial review. Thereafter, the applicant sought discovery concerning the decision of the minister to order his extradition. That application for discovery was refused by this Court in a judgment delivered on 31st July, 2017. This telescoped application for judicial review came on before me for hearing on 25th and 26th October, 2017.
The Issues
3. At issue in the present proceedings are two separate provisions of the Act of 1965. Under s. 33(1):
“…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 to such other person as in his opinion is duly authorised by the requesting country to receive him and he shall be surrendered accordingly.”
Section 15(2) provides:
“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.”
4. The reliefs claimed in the judicial review proceedings are:
1) An order of certiorari quashing the order of the minister to surrender the applicant to the United States of America;
2) Declaratory relief that the minister, under s. 15(2) of the Act of 1965, has a duty to request the reasons of the DPP for not prosecuting the applicant in this jurisdiction;
3) An order of mandamus and/or an injunction requiring the minister to give reasons for her decision to surrender the applicant;
4) The applicant seeks any other or further order, including such interim and interlocutory relief, as this Court may find just.
5. As directed by the Court subsequent to the judgment on the discovery issue, an issue paper was agreed between the parties. The outstanding issues were set out in four paragraphs which were in turn sub-divided into the applicant’s contention and the minister’s contention. The first issue, third issue and the fourth issue are closely related. They deal in essence with the minister’s duty with respect to consideration of the DPP’s reasons for non-prosecution.
6. The first paragraph can be summarised as a question of whether the minister was obliged to consider the reasons for the non-prosecution of the applicant, especially in light of his offer to plead guilty in this jurisdiction and the particular impact of extradition on him, so that she could determine whether this was a relevant consideration. The third paragraph can be summarised as questioning whether s. 15(2) is permissive in nature, allowing the respondent to exercise a discretion which goes beyond the statutory bars or whether it requires consideration of the reasons for non-prosecution. Under the fourth paragraph, the applicant contends that the effect of s. 15(2) is that the minister has to consider whether or not to extradite in light of the fact that there has been a decision made not to prosecute in this jurisdiction and as an aspect of that, the minister has to know the reasons for the non-prosecution. The minister contends that it was neither necessary nor appropriate to seek reasons from the DPP having regard to the independence of that office.
7. The second paragraph on the issue paper concerns the question of whether adequate reasons had been given by the minister for her decision to extradite the applicant. In the course of the hearing of this application, it was emphasised on behalf of the applicant that the “reasons” issue was interlinked with the issue of the purpose of s. 15(2) of the Act of 1965.
8. Arising from the foregoing, in my view, three central issues are identifiable:
a) How is s. 15(2) to be interpreted and in particular what is the nature of the minister’s role thereunder?
b) Is the minister obliged to seek the DPP’s reasons for the non-prosecution of the applicant?
c) Are the minister’s reasons for her decision to order the applicant’s extradition, as set out in her letter of 1st June, 2017, adequate?
The legislative history of section 15 of the Act of 1965
9. When first enacted, s. 15 of the Act of 1965 provided: “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.” This repealed section has been the subject of a number of cases in the last decade.
10. In the case of Attorney General v. Garland [2012] IEHC 90, the High Court refused to extradite the requested person to the United States on the basis that the offence was to be regarded as having been committed in this jurisdiction. The Supreme Court, in the case of Attorney General v. Pocevicius [2015] IESC 59, rejected a similar argument advanced under the same section. In the recent decision of Attorney General v. Lee [2017] IESC 68, the Supreme Court also rejected an objection to extradition based upon the section as originally drafted. The Supreme Court considered and determined the meaning of the phrase “regarded under the law of the State as having been committed in the State.” In essence, the Supreme Court held that, s. 15 as originally enacted applied to offences considered territorial offences rather than all offences prosecutable in this State.
11. Section 15(1), which together with s. 15(2), was substituted for s. 15 of the original Act of 1965 by s. 27 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act, 2012 (“the Act of 2012”), now reads as follows:
12. The applicant, in referring to the legislative history of s. 15(2), submitted that the subsection was only inserted after the repeal of the original s. 15 provisions by the Act of 2012. This is not strictly accurate as there was a virtually identical provision contained within the original provisions of the Act of 1965.
13. Section 17(1) of the Act of 1965 as originally enacted stated:
“(1) Extradition shall not be granted if final judgment has been passed in the State or in a third country upon the person claimed in respect of the offence for which extradition is requested.”
Subsection 2 of s. 17 as originally enacted stated:
“Extradition may be refused by the Minister for an offence which is also an offence under the law of the State if the Attorney General has decided either not to institute or to terminate proceedings against the person claimed in respect of the offence.”
The new s. 17, having been substituted by s. 27 of the Act of 2012, now reads:
“Extradition shall not be granted if final judgment has been passed in the State or, in accordance with the law of a third country, in that third country, upon the person claimed in respect of the offence for which extradition is requested.”
14. The only difference between the original s. 17(2), and the present s. 15(2) is the addition of the Director of Public Prosecutions. This addition takes express cognisance of the establishment of that office by the Prosecution of Offenders Act, 1974 (“the Act of 1974”). As s. 3 of the Act of 1974 had provided for the DPP to exercise those prosecutorial functions previously exercised by the Attorney General save for the limited exclusions provided for in the said Act, the DPP’s role was already implicitly acknowledged by the Act of 1965. The original s. 17(2) and the present s. 15(2) will be treated as if they are identical and the only prosecuting authority that will be referred to will be the DPP. This takes into account the role of her office, which is at issue in these proceedings, and the fact that the Attorney General rarely acts as a prosecuting authority.
15. As the legislative history demonstrates, this subsection cannot be considered as a new or even an amending piece of legislation. This is a repeal and re-enactment of a provision which was present in the Act of 1965 since its enactment. The modification that has been made to the section reflects the subsequent enactment of the Act of 1973. The new provision is, with the exception of the addition of the DPP, the same as the previous provision and therefore the substance of the discretion left to the minister has not changed. In light of s. 26(2) of the Interpretation Act, 2005 and of the rules of statutory interpretation, the Court may approach s. 15(2) on the basis that the Act of 1965 always provided for this discretion.
16. It can perhaps also be observed that the fact that s. 17(2) was phrased somewhat differently to the original wording of s. 15, give further confirmation to what has now been clarified by the Supreme Court in Attorney General v. Lee: “An offence under the law of the State” (as per the original s. 17(2) provision) is different from an offence “regarded under the law of the State as having been committed in the State (original s. 15).” Indeed, if every offence which was an offence under the law of the State came within the meaning of the original s. 15, there would have been no necessity to have the discretionary power to refuse in s. 17(2) of the Act of 1965 as enacted. Extradition could not have been granted at all to any such offences under the law of the State where the DPP (or Attorney General) had decided not to institute, or to terminate, proceedings. Thus, there was always a clear distinction in the Act of 1965 between territorial offences and extraterritorial offences for the purposes of deciding whether extradition was prohibited.
The Treaty Origins of s. 15(2)
17. Part II of the Act of 1965 represents the domestic implementation of the European Convention on Extradition (“the Convention”). As Ó Dálaigh CJ. stated in Bourke v. The Attorney General [1972] 1 I.R. 36:
“Part II, bearing the caption "Extradition Generally," enacts as part of our municipal law the provisions of the European Convention on Extradition which was signed at Paris on the 13th December, 1957. The Convention is not enacted nominatim; but the corresponding articles of the Convention are identified section by section in the marginal headings.”
18. Article 9 of the Convention provides that extradition shall not be granted where final judgment had been passed by the competent authorities of the requesting state in respect of the offence or offences for which extradition is requested. The Article also provides a discretionary ground of refusal whereby extradition could be refused if the competent authorities of the requested state had decided either not to institute, or to terminate, proceedings in respect of the same offence or offences. Article 9 is headed “Non bis in idem” which in common law jurisdictions equates generally with the concept termed “double jeopardy”.
19. The original s. 17 was the corresponding provision under the Act of 1965 which dealt with the issue of double jeopardy. It was given the marginal heading “Non bis in idem Article 9”. It now has a marginal heading “Non bis in idem” but does not explicitly refer to Article 9. Article 7 of the Convention dealt with place of commission of the offence and s. 15 was originally enacted to enable Ireland to avail of that discretionary ground for refusing to extradite. Section 15 is no longer headed “Place of commission” but is headed “Proceedings in State for same offence”. This reflects the fact that the “Place of Commission” discretionary ground for refusal of extradition no longer applies in this jurisdiction. Instead s. 15(1) is Ireland’s particular implementation of Article 8, namely, “Pending Proceedings for the Same Offences.” These marginal headings are not to be used, and are not used, to interpret s. 15(2) of the Act of 1965. Nonetheless, the marginal headings direct the attention towards the relevant provision of the Convention from which they derive.
20. In addition to the Convention, the Integrated Treaty on Extradition between the United States of America and Ireland (“the Integrated Treaty”) also provides that extradition shall not be granted where the person whose surrender is sought has been convicted or acquitted, or a prosecution is pending against that person in the requested state, for the offence for which extradition is requested (Article IV(a)). Article V of the Integrated Treaty provides that extradition may be refused “when the competent authorities of the requested state have decided to refrain from prosecuting the person whose surrender is sought for the offence for which extradition is requested, or to discontinue any criminal proceedings which have been initiated against that person for that offence.”
The Interpretation of s. 15(2)
21. This case is the first case in which the meaning of s. 15(2), or of the former s. 17(2), has been considered by the courts. Similarly, the meaning of s. 33(1) has never been considered by the courts. I am grateful for the helpful submissions from both parties.
22. At the hearing of this application, I raised a query about the interplay between s. 33(1) and s. 15(2) of the Act of 1965. It was the applicant’s contention that, because s. 33(1) already provided for ministerial discretion to refuse extradition, s. 15(2) had to have a meaning over and above that. The minister’s submission on this aspect was quite nuanced; extradition had to be seen as an exercise of sovereignty and was quite unlike the mutual recognition of judgments in the criminal sphere which is the cornerstone of the European Arrest Warrant system. Essentially, the ultimate decision to extradite or not to extradite remains in the executive and not the judicial sphere. This is a residual discretion not to extradite. All sorts of political issues (in the sense of global politics) can arise in the relationships between countries which justify a refusal to extradite by the executive. The minister’s submission was that there could not be relitigation of the issues which had been before the courts previously. Moreover, the provision in s. 15(2) was to give the minister a statutory discretion to refuse extradition for an offence which is also an offence under the law of the State even if the DPP has decided not to institute or terminate the proceedings. This residual discretion is only exercisable by the minister after the decision of the DPP has been made not to institute or terminate proceedings, and it was intended to cover situations where there may be reasons not to give effect to an extradition request which are beyond the statutory bars to extradition.
23. The minister has referred in oral submissions to the Integrated Treaty and to the obligation to extradite in accordance with the provisions of that Treaty. Given that the Act of 1965 implements the European Convention on Extradition and that the Integrated Treaty is to be operated within the framework of the Act of 1965, it is appropriate to refer back to the Convention to assist in understanding the provisions of s. 15(2) and its predecessor section 17(2). Article 1 of the Convention creates an obligation among the contracting parties to surrender to each other, subject to the provisions and conditions laid down in the Convention, all persons against whom the competent authorities of the requesting party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order.
24. That obligation to extradite is implemented by s. 9 of the Act of 1965 which provides in relation to requests for extradition that, the requested person “shall, subject to and in accordance with the provisions of this Part, be surrendered to that country”. The Convention and indeed, other extradition treaties including the Integrated Treaty, provide mandatory grounds for refusing to extradite people as well as discretionary grounds. An example of a mandatory ground for refusing to extradite is the double jeopardy ground referred to above (para. 17) contained in Article 9 of the Convention and also in Article IV(a) of the Integrated Treaty. An example of a discretionary ground is that contained in Article 7 of the Convention and Article III of the Integrated Treaty, namely, the place of the commission of the offence. The mandatory grounds in the Convention are all present in the provisions of the Act of 1965, but only those discretionary grounds which this State sought to avail of are contained in that Act.
25. The original s. 15 reflected a decision by the State to rely upon the discretionary ground concerning offences regarded as having been committed in the State i.e. territorial offences. It did so by enacting a blanket prohibition on all extradition cases for offences which were regarded as offences committed in the State i.e. territorial offences. The current s. 15, having been substituted for the old s. 15 by the Act of 2012, no longer contains a provision concerning offences regarded as being committed under the law of the State. The current s. 15 deals with all offences in this jurisdiction regardless of whether they are to be considered offences committed within the State or extraterritorial offences, but only prohibits extradition in so far as those offence are being prosecuted here or such prosecution is in contemplation. Section 17 now separately deals with the issue of double jeopardy. The position at present is that this State has decided not to avail of the discretionary right contained in Article 7(1) of the Convention and Article III of the Integrated Treaty to have a blanket refusal for all extradition requests for offences committed on the territory of Ireland.
26. An example of another discretionary ground for refusing to extradite was in relation to offences which attracted a death penalty. Ireland, by the enactment of s. 19 of the Act of 1965, availed of the discretionary opt out contained in Article 11 of the Convention by prohibiting extradition unless acceptable assurances have been given that the death penalty will not be carried out. A similar provision is to be found in Article VI of the Integrated Treaty.
27. Article 8 of the Convention gives a discretionary ground to the contracting parties to refuse to extradite where the competent authorities are proceeding against a person in the requested state. The Oireachtas has decided, by the amendments contained in the Act of 2012, to implement that discretionary ground by imposing, pursuant to s. 15(1), a mandatory ban on extradition if proceedings are pending in the State or where such proceedings are being contemplated by the prosecuting authorities.
28. On looking at the provisions of the Act of 1965, it appears that the usual method by which the Oireachtas has chosen to implement its discretionary rights under the Convention is by affirmative prohibition of extradition on that ground. Section 17(2), now provided for in s. 15(2), is somewhat of an exception. The Oireachtas has chosen to implement the second paragraph of Article 9, which gives to a contracting state the right to refuse extradition if a decision has been made not to prosecute, in a different way. This was done, not by making it mandatory for the court to refuse extradition in those circumstances, but by giving to the minister a discretionary right to refuse extradition. Thus, there is no prohibition on extradition where the prosecuting authority in this jurisdiction had made a determination either not to initiate proceedings or to terminate those proceedings; the minister has a discretion to refuse to extradite if that has occurred. From the perspective of Ireland’s international obligations, this manner of implementation is in perfect accord with the provisions of the Convention and Integrated Treaty. Ireland could have refused all extradition in these circumstances but it did not do so. Instead the legislation leaves a discretion in the hands of the minister to refuse.
29. The residual discretion in s. 33(1) of the Act of 1965, to which the minister has referred, appears to have a different origin from that of s. 15(2) of the said Act. Indeed, the discretion granted therein is perhaps more readily understandable as the purely political (in the sense of global politics) discretion alluded to by the minister. The Convention and the Integrated Treaty contain the mandatory and discretionary grounds on which extradition must, or, as appropriate, may be refused. Those grounds for refusing extradition are contained in the Act of 1965. Section 33(1) on the other hand, appears to reflect an overarching right of the minister to refuse extradition despite compliance of the request with the provisions of the Act, the Convention and the Treaty. Ireland may be held accountable at an international level for failure to comply with its obligations if there is a refusal to extradite which is not based upon a ground permitted under the Convention or Integrated Treaty. Conversely, there is no cause for complaint by the requesting state if the minister decides to refuse extradition on the basis of the ground set out in Article 9 of the Convention or Article IV(a) of the Integrated Treaty which is contained in s. 15(2) of the Act of 1965.
30. The applicant contended that the discretion available in s. 33(1) could have allowed refusal by Ireland (by the minister) of extradition based on the prior decision of the DPP not to charge. The applicant is critical of the minister’s submission that s. 15(2) is merely permissive i.e. that it was enacted to permit the minister to refuse extradition in the eventuality that the DPP declined to prosecute, for whatever reasons the minister might have, “which are beyond the statutory bars to extradition.” The minister also claimed that “the absence of s. 15(2) would make it mandatory for the respondent to extradite whether or not the DPP had decided not to prosecute.”
31. In my view, both the applicant’s and the minister’s submission must be addressed by reference to the understanding of s. 15(2) within the context of extradition law as found in both the relevant domestic and international provisions discussed above. In accordance with the Convention and the Integrated Treaty, extradition must be granted save where the mandatory exception applies or where the discretion exception has been accepted by the requested state and applies to the circumstances of the request. The Act of 1965 applies in Irish law the international commitments Ireland has made in the relevant Convention/Treaty. Therefore, the minister’s submission that it would be mandatory to extradite in the absence of s. 15(2) where the DPP had refused to prosecute, is correct in accordance with Ireland’s international obligations. Section 15(2), and its predecessor s. 17(2), forms the legal basis for a refusal to extradite where no prosecution has been directed in Ireland. If it was not in the Act of 1965, Ireland would not have adopted into its law, the legal basis for the exercise of the discretionary ground to refuse extradition. The enactment of s.17(2), now contained in s. 15(2), is an indication to other contracting states that we retain the right to avail of this opt out. Section 33(1) of the Act of 1965 is a discretion related to the exercise of sovereignty and not related to the legal right given in Article 9 of the Convention (and in the Integrated Treaty) to refuse extradition on that particular ground.
32. There may be many reasons why any country would wish to avail of that discretionary ground for refusal to extradite and more pertinently why the Oireachtas chose to retain it in a limited form. Some countries may view this opt out as an important aspect of prosecutorial control over offence against the law of that state. On the other hand, as many offences can be committed in an extraterritorial, or indeed a partly territorial, fashion and be first detected, investigated, and prosecuted by the competent authorities of another country, a complete bar to extradition perhaps could be viewed as an inappropriate approach to international co-operation in the criminal justice sphere. It is not, however, for me to speculate as to the reasoning of the Oireachtas but to interpret the provision as it appears on the statute books using the rules of statutory interpretation.
33. Although s. 15(2) represents the preservation by the State of its right to refuse to extradite where consideration has been given to the prosecution of the same offences in this jurisdiction by the provision of a discretionary role for the minister, s. 15(2) does not make express provision as to how such discretion should operate. The minister contends that s. 15(2) merely provides a residual discretion, whereas the applicant contends that in order to be operable, the minister has to have certain information, including the reasons from the DPP for not prosecuting.
34. The minister contends that the subsection must be given its plain and literal meaning which is that the subsection merely gives discretion to the minister to refuse surrender where the DPP has decided not to prosecute. Of course it is correct to say that what has been provided for is a discretion; the section specifically does not provide for a mandatory ground for refusal to extradite. The minister is also correct in her assertion that it was enacted to ensure that even where the DPP has considered prosecuting, the minister retains a discretion to refuse extradition. There is no obligation to surrender simply because the DPP has decided not to proceed.
35. On the other hand, it is not entirely correct to say that the absence of s. 15(2) would make it mandatory for the respondent to extradite for such offences whether or not the DPP had decided not to prosecute. Obviously, if the DPP had decided to prosecute, there can be no surrender, but if the DPP has decided not to prosecute, the provisions of s. 33(1) grant a residual discretion to refuse all surrenders. For the reason already stated, that would appear to be a discretion which operates outside the terms of the Convention or the Integrated Treaty. In the sense of operating within the Convention or Treaty, the absence of an implementing provision in the Act of 1965, would in effect make it mandatory for the minister to proceed to order extradition even if the DPP refused to prosecute.
36. The discretion provided for in s. 15(2) has been left deliberately with the executive rather than with the courts. It is not a mandatory ban on extradition but gives a discretion to refuse extradition even when the DPP has not initiated a prosecution. Leaving the discretion with the minister may reflect the essentially political nature of extradition as distinct from the judicial co-operation procedure under the European Arrest Warrant surrender provisions. Extradition (as distinct from surrender) operates at the level of agreement between States where the role of the courts is to oversee compliance with the terms of the Extradition Act. The Courts’ role is to ensure that the requested person is not extradited unless such extradition is lawfully permitted. The protection of a requested person’s rights is fundamentally a matter for the courts under the scheme envisaged by the Act of 1965. The courts’ role in surrender procedures is also to ensure rights are protected, but the essential difference is that the executive plays no role in the decision to surrender – that is solely a matter for the courts.
37. This method of implanting Article 9 of the Convention by the granting of a discretion to the minister deliberately removes from the courts the decision making role as to whether extradition should be refused where a decision not to prosecute has been made by the Director of Public Prosecutions. That is an important factor in this case because, unlike other bars to extradition, s. 15(2) grants no right to a requested person not to be extradited for an offence under the law of the State where the DPP has not initiated a prosecution. The courts have no role in that decision although the courts retain a role in ensuring that the decision making process is carried out in a lawful manner. At most therefore, s. 15(2) creates a right for the requested person to have the minister exercise her discretion in a lawful manner.
The Minister’s discretion and access to the DPP’s reasons
The Minister’s role
38. As stated above, the inclusion of the discretion set out in s. 15(2) from the date of enactment of the Act of 1965, was for the purpose of making express provision for the right of this State to refuse extradition where a decision had been taken by the State’s prosecuting authorities not to prosecute for the offences for which extradition was sought. What then is the nature and extent of the minister’s discretion under this subsection? The express provisions of the subsection do not delineate the parameters of that discretion. This can be contrasted with the provisions on citizenship where the minister has an “absolute discretion” under s. 15 of the Irish Nationality and Citizenship Act 1956, as amended, and those on humanitarian leave to remain under s. 3 of the Immigration Act 1999 (“the Act of 1999”), where a list of matters to be taken into account are set out. It is the privilege of the Oireachtas to legislate in the manner in which it did; the duty of the minister, and ultimately the courts, is to ensure that the discretion granted by the legislature is correctly exercised. It is a matter of construction of the subsection, which is located within the Act implementing our international commitments regarding extradition, which will provide the basis for interpreting the role of the minister.
39. The architecture of the Act of 1965 encompasses the fundamental procedures on which extradition requests are dealt. No person may be extradited unless the High Court has adjudicated upon the merits of the application. The High Court is even required to adjudicate on whether extradition may lawfully be permitted where a requested person consents to surrender. The scheme of the Act is that the requested person’s rights are protected through the High Court’s adjudication on whether extradition is lawfully permitted or not. Subsection 15(2) must be interpreted in that context.
40. The applicant has submitted that s. 15(2) and/or s. 33(1) requires the minister to carry out a detailed analysis as to whether extradition should be refused on “compassionate” grounds i.e. at a standard less than the courts’ apply when considering issues such as the potential for a breach of constitutional rights. The courts have already carried out the enquiry into whether the applicant’s rights have been and will be protected, using the appropriate standard of proof in that regard. From a close perusal of the Act of 1965, there is no basis for interpreting s. 15(2), or indeed s. 33(1), in a manner which would grant an even greater right to protection from extradition than those expressly set out in the Act of 1965 which are adjudicated upon by the courts, by requiring the minister to carry out an assessment based upon a lesser standard.
41. It is ultimately a matter for the minister to decide in any given case if extradition should be refused under s. 15(2) of the Act of 1965. This is not to say that the minister is making a “political” decision but it is a decision within the executive sphere. The right of the minister to refuse extradition in those circumstances does not create a right not to be extradited. In that sense the discretion is residual.
The Minister’s access to the DPP’s reasons
42. The next issue for consideration is whether the minister is obliged to consider the DPP’s reasons for non-prosecution. In her reply to the applicant’s request for reasons for her decision, the minister stated: “Having regard for the statutory independence of [the DPP’s] office, the Tánaiste is of the view that it is neither necessary nor appropriate that she would seek an explanation from the director as to the reasons why a decision was made not to prosecute Mr Marques in this jurisdiction.” In the present case the applicant submits that the respondent was entitled to seek reasons from the DPP and that in the exercise of her function under s. 15(2) of the Act of 1965, it was necessary for the minister to seek those reasons.
43. To a large extent, the applicant’s submissions in relation to the right to obtain the DPP’s reasons were interlinked with his submissions as regards the interpretation of s. 15(2) and the role and function of the minister thereunder. In general, the applicant submitted that while there is no doubt that the DPP enjoys a wide immunity from the giving of reasons in the context of prosecutorial decisions, the immunity is not absolute. The DPP will have to give reasons where there is evidence of mala fides or improper purpose, where a recognised right is impacted upon such as the direct trial in the Special Criminal Court instead of before a jury. The applicant also referred to the requirement to give reasons under the EU Victim’s Directive (Directive 2012/29/EU).
44. The applicant submitted that the case law on the DPP’s immunity from giving reasons appears to focus on why the DPP should not be obliged to give reasons to the suspect of a crime or the victim of a crime. In light of the discretion granted under s. 15(2) of the Act, the necessity on the part of the minister to consider the issue of the domestic non-prosecution amounted to an exception to the DPP’s immunity from giving of reasons. This submission was linked to the submission that what is relevant to the minister’s decision or consideration under s. 15(2) is not the fact of a non-prosecution, but the reasons for it. The applicant points out that the traditional reasons underpinning the immunity such as that it would be unduly burdensome for the DPP to do so in all cases has much less force in the context of whether the DPP’s decision should be provided to the minister.
45. The minister’s response was also linked to her response that the making of the decision by the DPP not to institute proceedings merely operates as a condition precedent to the consideration of the discretion vested in the respondent in the exercise of her executive function to grant or refuse extradition. The minister then relied upon the special position of the DPP and refers to the statutory independence of the DPP enshrined in s. 2 of the Prosecution of Offences Act 1974. That special position of the DPP was emphasised in Carlin v. DPP [2010] 3 IR 547 where Denham J. (as she then was) stated:
“The [DPP] is an important independent office in the State and independent in the performance of his functions: Prosecution of Offences Act 1974. A clear policy of non-intervention by the courts in the exercise of the discretion of the prosecutor, except in particular circumstances, has been stated in cases over the last few decades. An independent prosecutor is an important part of the fabric of a fair justice system. The prosecutor must not only be independent but be seen to be independent.”
46. The minister has also relied upon the dicta of Charlton J. in Monaghan v. DPP [2007] IEHC 92, in which he stated:
“In fulfilling his function, the Director of Public Prosecution is not to be obliged to give reasons for his decision as to whether to prosecute or not unless it can be demonstrated that such a decision was made in bad faith or under the influence of an improper motive or policy; The State (McCormack) v. Curran[1987] I.L.R.M. 225. Partly, the reasoning behind the series of decisions which later upheld that principle may be based on public policy in the sense that for reasons to be given as to why a prosecution should not be initiated, for instance due to lack of evidence, or the loss of evidence, such a declaration might undermine the presumption of innocence in favour of the accused. In addition, an extra administrative burden might be unjustifiably thrust upon the office of The Director of Public Prosecutions in explaining, and then defending, every decision made pursuant to the powers vested in the office by the Prosecution of Offences Act, 1974. Once there is a reasonable possibility that a valid decision has been made by the Director not to prosecute, or to prosecute, a decision by the Director is not reviewable by the High Court; H v. D.P.P.[1994] 2 I.L.R.M. 285. The Director is not exempt from the general constitutional requirements of fairness and fair procedures. The proof of the absence of such principles in any decision made by the Director of Public Prosecutions cannot be gathered through a speculative application for discovery; Dunphy (a minor) v. D.P.P. [2005] IESC 75. There must be, at the least, evidence suggestive of an impropriety before the court would allow a proceeding for discovery to be initiated against the Director of Public Prosecutions.”
The Court’s analysis and determination on the Minister’s access to the DPP’s reasons
47. In my view, it is undoubtedly the case that the DPP is statutorily independent, meaning in particular, that the DPP has independence from the executive. As is evident from the foregoing cases, that independence has been recognised and given effect to by the superior courts. The DPP’s special position as regards her role in the prosecution of offences in this jurisdiction is recognised in the limited judicial review of her decisions and by the special provisions concerning the giving of reasons for her decisions regarding prosecutions. Section 15(2) of the Act of 1965 does not include, on any plain and natural meaning of the subsection, a statutory exception to the DPP’s immunity for giving reasons. The Act of 1965 is not directed towards the DPP, but the DPP is mentioned in s. 15(1) for the purpose of addressing the situation with regard to prosecution of the offences for which extradition is sought. There is no mention of the DPP in subsection (2) of s. 15. Instead, that subsection gives discretion to the minister in the event that a decision not to prosecute has been made or if there is a decision to terminate proceedings already instigated.
48. The DPP’s statutory independence has not been interfered with by the statutory provision contained in s. 15(2) of the Act of 1964. In accordance with well accepted norms of statutory interpretation, only an express legislative provision could affect the statutorily expressed independence set out in the Act of 1974, that being the Act which specifically dealt with the creation of an independent prosecutor. This statutory independence has the important consequence that the discretion exercisable by the minister under s. 15(2) of the Act of 1965 cannot be considered in any way a review of the DPP’s prosecutorial decision making. Only the courts have the (limited) power to judicially review the DPP’s decision. The minister has none. I will deal with the precise requests made by the applicant of the minister later in this judgment. Suffice to say at this point that there is no basis for giving an interpretation to s. 15(2) that requires the DPP’s reasons to be sought and obtained by the minister, where the foundation of the argument centres on a contention that the minister requires those reasons to carry out what is in effect a review of the decision to prosecute.
49. Indeed, I also observe that there appear to be other statutory provisions which prevent obstacles to the DPP making any information available to a third party such as the minister. The DPP’s records, other than records relating to general administration, are not accessible under the terms of the Freedom of Information Act 2014. The DPP is subject to general provisions about data protection but has certain exemptions concerning records relating to prosecutions, although these may be time limited. However, there is an exemption in respect of privileged material. These are just examples of the statutory manner in which access to information held by the DPP can be either excluded or permitted.
50. Furthermore, the provisions of s. 15(2) are neither obscure nor ambiguous within the meaning of s. 5 of the Interpretation Act 2005. Similarly, a literal interpretation that the subsection does not create an exception to the DPP’s right to refuse to give reasons is not absurd and does not fail to reflect the plain intention of the Oireachtas. The plain intention of the Oireachtas was to give to the minister the power to refuse to extradite where such a decision not to prosecute had been made. There was no plain intention of the Oireachtas to interfere with the statutory exemption of the DPP as regards the giving of reasons. The provision either on its own or in the context of the Act of 1965 does not demonstrate a plain intention on the part of the Oireachtas to interfere with the repeated pronouncements of the courts as to the right of the DPP to refuse to give reasons for her decisions regarding prosecution in the absence of very particular requirements to do so. If there had been such an intention to change the law, then the Oireachtas should have made that clear on the face of the legislation.
51. In all those circumstances, I am satisfied that there is no basis for holding that s. 15(2) creates a statutory exception to the DPP’s immunity from giving reasons. Furthermore, I am quite satisfied that s. 15(2) did not impose upon the minister a requirement to seek those reasons. The absence of a statutory right to those reasons and the well enunciated practice of the DPP to only give reasons in limited circumstances would make any request for those reasons entirely irrelevant.
52. I recognise, as have the parties, that there is an element of interdependency upon the interpretation and understanding of the subsection. The subsection did not expressly or impliedly provide for the DPP to alter her longstanding attitude towards the giving of reasons. In those circumstances, it could not have been the intention of the Oireachtas that the minister could not make a decision to extradite on the basis that she did not know the reason for the non-prosecution. Therefore, no matter the angle of approach to s. 15(2), it is clear that the Oireachtas did not intend that the minister’s discretion under s. 15(2) would be based upon access to, and contemplation of, the DPP’s decision. In circumstances where the State has opted to avail of the facility in the Convention and the Integrated Treaty to refuse surrender in circumstances where the prosecuting authority (the DPP) has decided not to prosecute for the offence, the manner in which the State has chosen to implement that discretionary ground of refusal to extradition, does not, on a proper interpretation, make the exercise of the discretion dependent upon access to, or a review of, the DPP’s decision in the case.
53. While the applicant may have some complaints that it is unsatisfactory that the legislation grants a discretion without providing a statutory pathway for the decision maker to have full knowledge of the reasons for the non-prosecution; that does not take from the ability of the minister to exercise her discretion and for the courts to adjudicate upon it. Ultimately, the subsection does not create a right for a requested person not to be extradited; all it provides through ministerial discretion, is for this State to exercise a lawful option provided in the Convention/Integrated Treaty to refuse surrender where a decision not to prosecute or to terminate prosecution has been made. The provision leaves it open to the minister to refuse extradition on the basis of reasons “which are beyond the statutory bars to extradition” as referred to in her statement of opposition and submissions. It is not necessary to enumerate those situations in legislation or indeed in this judgment. Those circumstances will no doubt be decided by the minister if and when they arise.
54. In conclusion, the subsection permits the minister to make a lawful decision, at national and international level, to refuse to extradite even where the DPP has made a decision not to prosecute for the alleged offence. She is not required to know the DPP’s reasons for non-prosecution before she makes her decision to extradite.
The respondent’s reasons
55. Both parties were in agreement that, unlike the DPP, the minister enjoys no immunity from the giving of reasons. The issue in this case is whether the letter of the minister dated 2nd June, 2017 contains an adequate or sufficient statement of reasons for her decision to order the extradition of the respondent.
56. The request for reasons was made by the respondent in a letter dated 31st May, 2017. It is of assistance to recite that letter in full;
“Dear Minister,
We act on behalf of Eric Eoin Marques, whose extradition has been sought by the United States in respect of Child Pornography offences. His extradition has not being refused by the Irish Courts and accordingly, he has been committed to prison to await your Order for his extradition.
We were notified by the Chief State Solicitor’s office on the 26th May 2017, that his extradition will now take place. That office has failed to confirm to us whether or not you have made you (sic) decision on whether to extradite.
Mr Marques is alleged to have committed these extremely serious crimes in Ireland, using a computer in his home in Dublin. He was arrested and questioned by an Garda Síochána in relation to the same child pornography offences which are the subject-matter of the extradition request. An Garda Síochána have gathered core evidence against him here in Ireland.
Mr Marques has offered to plead guilty if he is charged in Ireland, and for the extradition proceedings to be stayed until he has been sentenced. However, the Director of Public Prosecutions has refused to prosecute him. She has also refused to give reasons for not prosecuting him.
It now falls to you to decide whether to refuse extradition having regard to the failure of the DPP to prosecute Mr Marques. S.15 of the Extradition Act 1965 (As Amended) states as follows; (s.15 is set out in full).
In order to exercise your statutory function under S.15(2), you must know what the basis is of the DPP’s decision.
We would emphasise the DPP’s decision has not been explained and it is not readily explicable. It is our belief that the failure to prosecute Mr Marques is due to the simple expedient that his extradition has been requested by the United States, rather than any overriding concern about his successful prosecution in this jurisdiction. In this regard, we would draw you (sic) attention to the comments of the Supreme Court (Walsh J) in State (McCormack) v. Curran [1987] ILRM 225 at p.23, that;
‘The enforcement of the law of this State and the prosecution and punishment of the perpetrators of criminal acts within this jurisdiction must be given precedence over the actual or constructive surrender of such persons to another jurisdiction for the same or any other crime and it is the duty of the appropriate prosecuting authority to act accordingly.’
We also draw your attention to the judgment of Donnelly J in the case of Attorney General v Marques and to the facts, relevant to your decision, which are set out therein.
In summary, Mr Marques is 32 years of age. He suffers from Asperger’s syndrome, a developmental disorder. If extradited, he faces serving a sentence of many years in a very tough conditions in a Federal prison, far away from his family who live in Ireland. Estimates of the likely prison sentence to be imposed in the United States range from 24 years up to 100 years. If Mr Marques is prosecuted domestically, the sentence imposed would likely be far less than that. Moreover, there is no prospect of early release within the Federal Prison system
There are other highly unsatisfactory aspects of the criminal justice system that Mr Marques faces, which are alien to our own concept of justice and which would not pass constitutional muster in this jurisdiction (such as coercive plea bargaining, and sentencing for uncharged criminal conduct). In Federal prison, there is a risk of violence to him and of a deterioration in his mental health.
Accordingly, we submit to you that there is both a public interest and strong compassionate basis for you to resist Mr Marques’s extradition.
We contend that extradition should now be refused by you on the basis that the Director of Public Prosecutions has refused to prosecute him, in circumstances where Mr Marques can in fact be prosecuted domestically and where this is in the public interest.
We would ask that you not make your Order unless you have satisfied yourself that the decision not to prosecute is based solely on legitimate considerations and that extradition is in the public interest. Please note that Mr Marques would consent to any procedure that would secure his guilty plea in this jurisdiction instead of his being extradited. In the event that you decide to extradite, we require a reasoned decision from you setting out why this is so. We request that this be provided in sufficient time that our client can consider it.
We therefore seek your urgent reply to this letter. In particular, please confirm to us as a matter of urgency that you will seek the reasons of the DPP for the refusal to prosecute Mr Marques and that you will have regard to those reasons. We contend that you have a statutory duty to do so.
Yours faithfully etc”
57. The reply of the minister was signed by Brendan Eiffe of the Mutual Assistance Division. It was dated 2nd June, 2017 and reads as follows;
“Dear Ms. Egan,
I am directed by the Tánaiste and Minister for Justice and Equality, Ms Frances Fitzgerald, TD to refer to your letter dated 31May 2017 in the above connection.
I wish to advise that on the 1 June 2017, the Tánaiste, acting in her capacity as Minister for Justice and Equality, signed an Order under section s. 33 of the Extradition Act 1965 as amended directing the surrender of Mr Marques to the relevant authorities of the United States of America.
In making this decision, the Tánaiste considered the issues raised by you in your letter of 31 May 2017.
In that context the Tánaiste notes that this case has been the subject of extensive proceedings in the Courts and that it has been open to your client to raise any matter of concern to him in the course of the various proceedings that have taken place.
The Office of the Director of Public Prosecutions decided not to institute proceedings against your client. Having regard for the statutory independence of that Office, the Tánaiste is of the view that it is neither necessary nor appropriate that she would seek an explanation from the Director as to the reasons why a decision was made not to prosecute Mr Marques in this jurisdiction.
In arriving at the conclusion to make the section 33 order, the Tánaiste also took account of the views of the High Court and Court of Appeal arising from judicial review proceedings brought by your client on this matter and noted the subsequent determinations of the Supreme Court concerning the applications for leave to appeal to that court dated 25 May 2017.
I trust that this clarifies the matter.
Yours sincerely, etc.”
The Applicant’s Submissions
58. Unsurprisingly, the applicant strongly relied on the decision of the Supreme Court in Mallak v. Minister for Justice [2012] 3 IR 297 in support of his contention that “…persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them” (para. 69). Fennelly J. had also stated in Mallak:
“In the absence of any reasons, it is simply not possible for the applicant to make a judgment as to whether he has a ground for applying for a judicial review of the substance of the decision and, for the same reason, for the court to exercise its power. At the very least, the decision maker must be able to justify the refusal”.
59. In further support of his submission that the reasons supplied were inadequate, the applicant relied upon the case of A.M.N. v. Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform [2012] IEHC 393. In that case the tribunal had considered a medical report furnished on behalf of the applicant, which he claimed supported his contention that his injures were consistent with the narrative he had given the Refugee Appeals Tribunal. Although the tribunal had set out in its decision the contents of the medical report, McDermott J. concluded this was not sufficient. McDermott J. stated;
“…I am satisfied that the Tribunal erred in law in failing to describe what significance was attached to the medical report and if significance attached to it, why it was discounted as against other factors in the case. It was incumbent on the Tribunal to deal specifically with the medical report and state reasons as to why it was not accepted. The report is discounted on the basis of the applicant's "overall account to the Tribunal". The medical report was an objective piece of evidence that required more careful consideration. The mere recital of its terms does not amount to a sufficient consideration of its contents. … The Tribunal failed to provide cogent reasons for rejecting a piece of evidence that was significantly supportive of the applicant's claim. The Tribunal's failure in this respect renders its decision fundamentally flawed.”
60. The applicant also relied upon the decision of McDermott J. in McDonagh v. The Commissioner of An Garda Siochána [2015] IEHC 390 in which a convicted murderer had sought access to forensic samples in contemplation of a miscarriage of justice application. The Garda Commissioner had stated that “[h]aving given this matter much consideration I am of the view that I cannot accede to your request to disclose the evidence sought in the absence of a court order directing such disclosure”. McDermott J. held as follows;
“The Assistant Commissioner made a decision that he could not accede to the request made for access in the absence of a court order. Though it was stated that “much consideration” was given to the application it is not clear that any consideration was given to its merits… In that sense, the decision of the Commissioner was flawed.”
61. In the applicant’s submission, the conclusion to be drawn from those cases is that “it is no longer sufficient for a decision maker to merely acknowledge the arguments made in order to establish that the submission has been properly considered.” The applicant submits that proper engagement with his letter was required and it was submitted that the letter did not properly acknowledge the arguments made and what weight was attached to them and is deficient for that reason.
The Minister’s Submissions
62. Counsel for the minister, having accepted that there was a requirement to give reasons, concentrated upon the recognition in the case law that the nature and extent of the reasons varied by reference to the subject matter. Counsel relied upon EMI Records Ltd v. Data Protection Commissioner and Eircom Ltd [2014] 1 ILRM 225 at p.249 where Clarke J. (as he then was) concluded as follows:
“It follows that a party is entitled to sufficient information to enable it to assess whether the decision is lawful and, if there be a right of appeal, to enable it to assess the chances of success and to adequately present its case on the appeal. The reasons given must be sufficient to meet those ends.”
63. Counsel for the minister distinguished cases involving tribunals or other decision making bodies, which are called, in effect, to make findings and determinations between competing evidence. It was submitted that the present case was entirely different. Counsel relied upon the decision of the Supreme Court in F.P. v. Minister for Justice Equality and Law Reform [2002] 1 IR 165. That case concerned the decision of the minister to make a deportation order under s. 3.3 (a) of the Immigration Act 1999. The Supreme Court held that the question of the degree to which a decision should be supported by detailed reasons would vary with the nature of the decision itself. The decision in that case had been relatively brief in that it stated:
“…the Minister has satisfied himself that the provisions of s. 5 (prohibition of refoulement) of the Refugee Act, 1996 are complied with in your case. The reasons for the Minister's decision are that you are a person whose refugee status has been refused and, having regard to the factors set out in s. 3(6) of the Immigration Act, 1999, including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration system outweigh such features of your case as might tend to support your being granted leave to remain in this State."
It should be noted that s. 3(6) of the Immigration Act, 1999 set out a full list of the matters to which the minister was obliged to have regard, unlike the provisions at issue in the present case.
64. In the minister’s submission, the decision was made in accordance with well-established principles. Sufficient information had been given to the applicant. The respondent had regard to the relevant considerations in making her decision. Counsel distinguished the cases of A.M.N and McDonagh on the facts of each case and pointed to the specifics of the ministers’ response in the present case. That response engaged with each of the points that the applicant had raised in his letter of 31st May, 2017.
The Court’s analysis and determination on the adequacy of reasons
65. Hardiman J., who delivered the judgment of the Supreme Court in F.P. v. Minister for Justice Equality and Law Reform stated that “…the question of the degree to which a decision must be supported by reasons stated in detail will vary with the nature of the decision itself.” Hardiman quoted with approval from the judgment of Geoghegan J. in Laurentiu v. Minister for Justice [1999] 4 IR 26. In that case Geoghegan J. held that:
“I do not think that there was any obligation constitutional or otherwise to set out specific or more elaborate reasons in that letter as to why the application on humanitarian grounds was being refused. The letter makes clear that all the points made on behalf of the applicant had been taken into account and of course they were set out in a very detailed manner. The letter is simply stating that the first respondent did not consider the detailed reasons sufficient to warrant granting the permission to remain in Ireland on humanitarian grounds. It was open to the first respondent to take that view and no court can interfere with the decision in those circumstances.”
66. The nature of the decision that the minister was required to make in this case has been discussed in some detail above. The minister’s discretion is a residual discretion to refuse surrender in circumstances where the DPP has decided not to prosecute. The nature of the discretion limits the extent to which reasons must be given. This is not a decision for the minister that is akin to the decision making of the Refugee Appeals Tribunal. The latter type of decision making requires significant engagement with evidence such as the medical report presented in the case of A.M.N. relied on by the applicant.
67. In the present case, the letter of 31st May, 2017 has been presented as referring to two separate issues. The first issue was the obtaining of reasons from the DPP and matters arising out of the failure of the DPP to prosecute him in this jurisdiction and secondly, issues concerning his personal circumstances. Indeed, it can be observed that the letter merged these two matters as the reference to his personal circumstances were made in the context that he should be prosecuted domestically rather than be sent to the United States of America.
a) The non-prosecution of the applicant
68. As can be seen from the contents of the applicant’s letter to the minister, there is repeated statement that the DPP has either refused to prosecute him or has failed to prosecute him in this jurisdiction. The letter also says that the DPP’s decision has not been explained and is not readily explicable. There is a degree of speculation about the reason why there was a “failure” to prosecute the applicant. In essence, the applicant was submitting to the minister that there was both a public interest and strong compassionate basis for resisting Mr. Marques’ extradition. The letter went on to say that the contention of the applicant was that the extradition should be refused on the basis that the DPP had refused to prosecute him in circumstances where he can in fact be prosecuted domestically and where this is in the public interest. The reference to the public interest was clearly a reference to the public interest in prosecuting offences in this jurisdiction as determined in State (McCormack) v. Curran.
69. A large part of the letter was taken up with criticising the DPP’s decision, expressing views on its legitimacy and speculating as to its basis. The applicant’s letter was underpinned by his dissatisfaction with the DPP’s decision. This is not to be taken as a criticism of the applicant who was entitled to express his views to the minister. It is however an observation that has relevance to the nature of the case that he makes in this judicial review.
70. In the course of the hearing of this application, it was clarified that, contrary to the assertion in the applicant’s letter, there was no issue for the minister to consider with respect to the convenient forum for prosecution (forum conveniens). Once the DPP had refused to prosecute, there was no longer any issue about whether it was in the public interest that he be tried in this jurisdiction. Some of the applicant’s contentions in his letter to the minister were directed towards the forum conveniens issue and these are now redundant. For example, the applicant stated that the minister must “satisfy [herself] that the decision not to prosecute is based solely on legitimate considerations and that extradition is in the public interest.” What followed was a repeat of the position of the applicant that he would be prepared to plead guilty in this jurisdiction instead of being extradited. This was never an issue that the minister could have resolved; it being an argument about the convenient place to try the applicant and the minister having no prosecutorial function.
71. Furthermore, these contentions of the applicant were actually a request to the minister that she review the DPP’s decision not to prosecute. That is not the role of the minister under s. 15(2) of the Act of 1965 – that would be entirely contrary to the statutory independence of the DPP. The statement made by the minister in her letter, that the DPP was an independent office and that it was neither necessary nor appropriate to seek reasons for her decision, is both a correct statement of the legal position and an entirely adequate stated reason. Moreover, for the reasons set out above, it was not incorrect or a failure to have regard to a relevant consideration for the minister to reply in the manner she did.
72. At the hearing of this application, the applicant referred to eight points in the letter he had written to the minister seeking that she exercise her discretion not to extradite under s. 15(2) of the Act of 1965. The first point made was that the minister had a discretion – that has not been disputed. The second point was that in exercise of her discretion she must know the basis of the DPP’s decision; the minister’s response has been dealt with in the above paragraph. The third point made was that the DPP’s decision was not explained and was not readily explicable and which made reference to State (McCormack) v. Curran. This point has been dealt with in the minister’s response by the reference to the DPP’s independence again as referred to in the above paragraph.
73. The fourth point dealt with issues of a humanitarian nature. This point was tied to the issue of prosecuting him domestically – the paragraph referring to his personal situation expressly contains a reference to domestic prosecution. The humanitarian aspects were part and parcel of his request to the minister not to extradite him precisely because he could have been prosecuted here and, in his submission, the humanitarian aspects (including US Federal law provisions) would make it fairer to do so. Again, the answer to this in the minister’s letter is that all these have been taken into account, they were raised before the courts and that in particular, the DPP is independent in her functions. I have addressed these issues in the course of this judgment.
74. The fifth issue raised by the applicant was that “there is both a strong public interest and strong compassionate basis to resist” the applicant’s extradition. In fact, this is not a separate point but refers back to the public interest in prosecuting in this jurisdiction (as per State (McCormack) v. Curran) and the humanitarian aspects referred to. The minister has responded to these as above with her reference to independence and to the matters considered by the courts.
75. The sixth point is the reference to the DPP’s refusal to prosecute “in circumstances where Mr. Marques can, in fact, be prosecuted domestically and where this is in the public interest”. This was dealt with by the minister in her letter by her reference to the DPP’s independence. Furthermore, as stated above, it was effectively conceded that forum considerations could not be relevant for the minister where there has been a decision not to prosecute. This of course, is not to say that the DPP could not lawfully change her mind on a decision to prosecute, but as matters stand, there is simply no basis for saying that the applicant “can, in fact, be prosecuted domestically”.
76. The seventh point requested the minister not to make the order unless she was satisfied that the decision not to prosecute was based solely on legitimate considerations and that extradition is in the public interest. It is difficult to contemplate a more direct request for the minister to interfere with the independence of the DPP in the exercise of her prosecutorial functions. This was a request for the minister to have review, and therefore have oversight, of the decision to prosecute in this case. The minister’s response about the independence of the DPP covers this aspect of the matter. I have already decided that, based upon the DPP’s independence the minister is not bound to seek the DPP’s reasons and that s. 15(2) of the Act operates as a residual discretion for the minister.
77. The eighth and final point of the letter was that “in the event that [the minister] decide[s] to extradite we require a reasoned decision.” In the light of the points that the letter made, I am quite satisfied that the minister’s letter was a reasoned response to the issues raised. The nature of the decision, being the minister’s decision to order extradition after all court processes had been dealt with, did not require an extended or detailed consideration of all issues. The minister, in fact, did deal with the issues raised by the applicant and gave her reasons for rejecting them. The issues raised were interlinked, and indeed repetitive. The reasons given covered those points, the most important being that the DPP was independent and that it was neither necessary nor appropriate for the minister to seek an explanation from the DPP. The reasons given are adequate and the minister took into account all relevant considerations.
b) Other challenges to the minister’s response
78. In light of the requests made by the applicant in his letter, the minister has clearly responded adequately. In the course of the proceedings, the applicant has taken issue with the minister’s reply and has raised matters that appear to extend further the basis upon which his objection to extradition by the minister was made. The applicant takes issue with the statement that the minister notes that the matter had been the subject of extensive court proceedings and that it had been open to the applicant to raise any matter of concern in the course of those proceedings. The applicant has submitted that he could not raise issues of the minister’s role in those proceedings as that was the very matter that was, in effect, left over to be determined by these proceedings. Perhaps more strongly, the applicant submitted that the humanitarian aspects of the case were a matter for the minister and had not been a matter for the court. The applicant submitted that a question of proportionality should have been exercised by the minister as to whether this extradition should take place.
79. The minister’s response was that it was open to the applicant to raise any manner of concern to him in the course of the various proceedings. The judicial review proceedings raised two essential issues: whether the decision not to prosecute him was reviewable and whether the DPP was obliged to give reasons. In the course of those proceedings, in which he was unsuccessful, the applicant raised the issues he sought to raise in this court case. While the applicant may be correct that the one issue he was not entitled to raise was the exercise of the minister’s discretion under s. 15(2) of the Act of 1965, it would be too narrow an interpretation of the minister’s response to criticise her for failing to expressly acknowledge this right. The minister engaged with the right of the applicant to raise issues with her regarding his extradition. The minister responded to the applicant by noting that the issues he raised were dealt with by the courts in the extradition proceedings. The minister was correct in this as the applicant’s criticisms of the DPP and her decision making were raised extensively in those proceedings but were rejected.
80. The personal circumstances of the applicant were also raised in the judicial review, see for example paragraphs 11.3 and 11.4 of the judgment in Attorney General v. Marques [2015] IEHC 798. The humanitarian aspects of the case were therefore at issue in those proceedings and the minister indicated she took account of the views of the courts on ruling on those aspects. Indeed, the surrender order of the minister made under s. 33(1) of the Act of 1965, also includes references to the court proceedings including the appeals by the applicant.
81. The minister exercised a residual discretion in considering whether to extradite in circumstances where the DPP had refused to prosecute. She considered the issues raised by the respondent and gave adequate reasons for her decision to order the applicant’s extradition.
Conclusion
82. For the reasons set out in this judgment, I am satisfied that:
a) Section 15(2), and indeed s. 33(1), of the Extradition Act 1965 grant to the minister a residual discretion to refuse to order the extradition of a requested person who has been committed to prison under the provisions of s. 29 of the Act of 1965 where the High Court is satisfied that the requirements of the Act have been met and extradition is not prohibited.
b) It was not necessary for the minister to obtain the DPP’s reasons for non-prosecution prior to exercising her discretion under s. 15(2) of the Act of 1965.
c) The reasons given by the minister for her decision to order the applicant’s extradition were sufficient.
83. I will therefore refuse the applicant the relief sought in the Notice of Motion.
