Court of Appeal: Man sought by the USA on child pornography charges fails to halt surrender

21 Jun 2018

Reading time: 4 minutes

A man who has been ordered for surrender to the USA to face child pornography charges has been unsuccessful in a bid to overturn failed judicial review proceedings, challenging the decision of the Minister for Justice and Equality to order his surrender under s.33 of the Extradition Act 1965.

About this case:

Judgment:
External link
Judge:
Mr Justice Michael Peart

Dismissing yet another appeal by the man who has brought various proceedings to halt his surrender, Mr Justice Michael Peart said 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.

Background

Eric Eoin Marques is accused of being the creator of Freedom Hosting, and has been described by the FBI as the world’s “largest facilitator of child pornography”.

Mr Marques’s extradition has been sought by the USA since July 2013, when it made a request to the Minister for Justice for a provisional warrant for Mr Marques’ arrest on grounds of urgency pursuant to Part II of the Extradition Act 1965.

A warrant was issued by the High Court in August 2013, and Mr Marques was arrested and held in custody pending the High Court’s determination of the formal request for his extradition to the USA. His surrender to the USA was ordered by the High Court in December 2015

Mr Justice Peart explained that Mr Marques attempted to halt his extradition to the USA in various sets of proceedings since his arrest, including an application to bring his case before the European Court of Human Rights which was refused in June 2017. Mr Marques also sought to be prosecuted in Ireland, and brought judicial review proceedings in order to quash the decision by the DPP not to prosecute him in the State. His application for judicial review was unsuccessful in the High Court and Court of Appeal, and he was refused leave to appeal to the Supreme Court.

High Court

In the present application for judicial review, the following issues were raised by Mr Marques:

Where “extradition may be refused” under s. 15(2) of the Extradition Act 1965 where the offence is also an offence under the laws of this State, and the DPP has decided not to prosecute him, the Minister needs to know the reasons for the decision not to prosecute before she can properly exercise her discretion whether or not to make a s. 33 surrender order, since the reasons could be a relevant factor to consider.

Whether or not the reasons given by the Minister for her decision under s. 33 to order Mr Marques’ surrender are adequate.

In November 2017, the trial judge refused Mr Marques’ application for judicial review, concluding:

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.

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.

The reasons given by the Minister for her decision to order the appellant’s extradition were sufficient.”

Court of Appeal

In the Court of Appeal, Mr Marques argued that the trial judge fell into error in considering all submissions which were made in the High Court. Mr Justice Peart said that the trial judge’s analysis of sections 15(2) and 33 of the Extradition Act 1965 were “entirely correct”.

Mr Justice Peart added that it was important to emphasise the “non-creation of individual rights” in the European Convention on Extradition, to which effect is given by Part II of the Extradition Act 1965.

Mr Justice Peart said that the Minister’s discretion to refuse extradition did not create an individual right not to be extradited, and that Mr Marques had no right to have his extradition refused by the Minister on the ground that the DPP decided not to prosecute him for the extradition offences.

Mr Justice Peart also said that there was no obligation on the Minister to give reasons in the event that he does not refuse surrender on the basis of s.15(2) of the Extradition Act 1965.

Mr Justice Peart said that it followed “…inexorably that has no entitlement to require the Minister to obtain from the DPP her reasons for deciding not to prosecute him, before any decision to make the order under s. 33 is made”.

Dismissing Mr Marques’ appeal, Mr Justice Peart was also satisfied that the Minister’s reasons for making the s.33 order were adequate.

by Seosamh Gráinséir for Irish Legal News

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