An Chúirt Uachtarach
The Supreme Court
McKechnie J
MacMenamin J
Charleton J
O'Malley J
Finlay Geoghegan J
Supreme Court appeal number: S:AP:IE:2018:000097
[2019] IESC 000
Court of Appeal record number: 2017 606
[2018] IECA 174
High Court record number: 2017 473JR
[2017] IEHC 717
Eric Eoin Marques
Applicant/Appellant
- and -
The Minister for Justice and Equality, Ireland and the Attorney General
Respondent/Respondent
Judgment of Mr Justice Peter Charleton of Wednesday the 20th of March 2019
1. Extradition occurs when people, suspected by a foreign country of a crime over which they validly assert jurisdiction, are surrendered from the country in which they are to agents of the requesting country. With the complexity attendant on the nature of extradition request papers, and with a view to protecting the rights of suspects, the courts provide a forum where analysis takes place as to legal compliance with legislation and the protection of rights. Many crimes are multi-jurisdictional, such as conspiracy to commit an offence over multiple territories, through for instance drug importation, as well as those perpetrated through the use of the World Wide Web. Such crimes may be committed by a suspect in such a way as to invoke local criminal jurisdiction as well as allegedly criminally affecting some aspect of life in the requesting country. The Extradition Act 1965, as amended, allows the Director of Public Prosecutions to decline to prosecute or to discontinue a prosecution against suspects in Ireland. Section 15(1) of the 1965 Act enables the Minister for Justice and Equality to decline to extradite a suspect even though the courts have enabled extradition and no prosecution in Ireland is to proceed. It is the nature of whatever discretion the Minister has under the 1965 Act which is at issue on this appeal, together with a question as to whether the Minister needs to know the reasons why the suspect is not to be prosecuted in Ireland and what level of reasons for nonetheless ordering extradition must be disclosed by the Minister.
Determination
2. By determination dated 30 July 2018, this Court gave leave to the appellant to bring a further appeal against the decision by Donnelly J, in her judgment in the High Court of 30 November 2017, as affirmed by judgment of the Court of Appeal on 18 June 2018, Peart J sitting with Mahon and Hedigan JJ. The three issues identified as requiring a further appeal because of their "general public importance" within the meaning of Article 34.5.3ยบ of the Constitution are the following:
1. the correct interpretation of section 15(2) of the Extradition Act 1965 and the role of the Minister for Justice and Equality thereunder;
2. 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
3. whether the reasons given by the Minister in making a decision to extradite this suspect were adequate.
Background
3. Eric Marques was arrested in Dublin on 1 August 2013 in consequence of a provisional arrest for extradition request from the United States of America on 29 July of the same year. On 2 August 2013, appearing before the High Court, he was refused bail and has remained in custody since. The formal extradition request was received on 13 August 2013 and on the following day, the Minister for Justice and Equality certified that the matter should proceed. The relevant section is section 26 of the 1965 Act, as amended, which provides that if "the Minister receives a request made in accordance with" Part II of the Act "for the extradition of any person he shall" signify by order to the High Court that a request has been made, whereupon "a warrant for the arrest of that person shall be issued." The Minister may "request the requesting country to furnish such further information as he thinks proper and may fix a time-limit for the receipt thereof." The Minister, even at that stage, "may refuse extradition if he is of opinion that the case is one in which extradition is prohibited under any provision of" Part II of the Act "or under the relevant extradition provisions."
4. The allegation facing Eric Marques was that from a location in 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. Some delay was occasioned by the initial refusal of leave to commence a judicial review of the decision not to prosecute him in Ireland, but that case was heard by Donnelly J in the High Court in the summer of 2015. The decision of the High Court on this point was given on 16 December 2015, refusing all reliefs sought. That decision was upheld by the Court of Appeal on 12 December 2016 following on a hearing in the summer of that year. Leave to appeal to the Supreme Court was refused, as was an application to the European Court of Human Rights to stay the extradition. Hence, in May 2017, the State authorities informed Eric Marques that his extradition would proceed. A new point was then initiated. His solicitors wrote to the Minister asking for clarification as to why a decision had been made to extradite him. On 31 May 2017, his solicitor wrote a letter to the Minister seeking the refusal by the Minster of extradition. The next day, the Minister signed an order under section 33 of the 1965 Act directing the surrender of Eric Marques to the American authorities. On 2 June 2017, the Minister responded to the letter of 31 May 2017. Leave was sought that day to commence a judicial review of the Minister's decision. The leave and substantive hearing were both considered by Donnelly J in the High Court shortly after, with judgment being delivered on 31 July 2017 on a case management issue, refusing discovery against the Minister. Substantively, the case was heard on 25 October 2017 over two days, with judgment refusing relief given on 30 November 2017. The Court of Appeal heard the appeal on 9 April 2018 and delivered judgment affirming the High Court's decision on 18 June 2018. This Court granted leave to appeal on 30 July 2018 and heard the case on 17 December of that same year.
The nature of extradition
5. Both the current usage of extradition under the 1965 Act and the history of how the formal surrender of suspects between countries developed confirm that it is a sovereign state action. While aspects of extradition have been embanked by legislation, the nature of the process is one of international governmental cooperation.
6. Halsbury's Laws of England (5th edition, London, 2014) describes in volume 47 at paragraph 601, the nature of extradition thus, with footnotes omitted:
Extradition is the formal surrender by one country to another of an individual accused or convicted of a criminal offence within the jurisdiction of the requesting state which, being competent by its own law to try and punish him, requests the individual's surrender. It is to be distinguished from deportation (which is the process whereby the competent authorities require a person to leave a territory), from the return, or ‘refoulement,' of persons denied admission to a territory (which is the administrative act whereby such persons are returned to the territories whence they came), from the delivery of persons wanted for trial before international criminal tribunals (which is not extradition although it is based on international agreements agreed between states, it does not occur between states), and from ‘extraordinary rendition' (which is not based on a judicial process agreed between states). Extradition is also to be distinguished from the exclusion of a person from one part of a sovereign state in pursuance of some such device as an exclusion order, from the removal of the United Kingdom of foreign nationals suffering from mental disorder, and from the procedures whereby deserters and absentees from the armed forces of designated countries, as well as from visiting forces, may be returned to the custody of the service authorities of the countries to which they belong. Each of these mechanisms is normally non-consensual and should be contrasted with the procedure by which prisoners may be transferred between the United Kingdom and other countries under international agreements and then detained in the state to which they are transferred.
7. While the protection of fugitives from persecution is known from antiquity, extradition of suspected criminals only developed later. There was little incentive for offenders to flee abroad since they would not typically enjoy the protection afforded to citizens. Apart from such informal expulsion that might have been arranged between states, the obligation to extradite is generally treaty-based. The first such was thought to have been the 1174 treaty between Henry II of England and William of Scotland for the surrender of traitors and felons. This was followed by treaties in 1303 and 1413 concluded between the English and French, the latter in relation to the Paris Rebellion and then similar arrangements were concluded throughout Europe. With the oppression of religious minorities in Europe in consequence of Catholic and Protestant violence, the concepts of asylum from persecution, together with the need for international cooperation to suppress criminal fugitives, were developed in the 16th century. Extradition thus developed in the 18th century into a legal scheme designed to ensure that borders were not crossed by criminals seeking refuge, and with a view to enabling international commerce; see Van den Wijngaert - The Political Offence Exception to Extradition (Deventer, 1980), chapter 1 and Jones and Doobay on Extradition and Mutual Assistance (3rd edition, London, 2004), chapter 1. The sovereign state nature of extradition is confirmed by the state of the law in Ireland on independence. Thus the then current edition of Archbold's Pleading, Evidence and Practice in Criminal Cases (26th edition, London, 1922) at page 84 distinguishes between the return under warrant of an offender from British possessions. There, legislation dealing with foreign jurisdictions applies but warrants are executed from Britain to the place where the offender is, through the Foreign Offenders Act 1881. What was involved was a wide jurisdiction where the territoriality of English law enabled return through legislation of the British parliament. Those possessions were not treated as separate from the polity that had required the return of suspects and which had facilitated arrest throughout the realm in which its laws held sway. As regards foreign countries, however, the matter was different:
Where the accused has fled to a foreign country to which the Foreign Jurisdiction Acts do not apply, his surrender is obtainable under the Extradition Treaty in force with such country, or in some cases by application to the foreign government, independently of any treaty. The procedure to be followed depends on the terms of the treaty or the requirements of the foreign government. See Clark on Extradition (4th ed.): Biron and Chalmers on Extradition. The Orders in Counsel bringing each treaty into effect and setting out its text are published as Statutory Rules and Orders. The Extradition Acts of 1870, 1873 and 1895, in the main regulator only procedure for extradition from British dominions, but they forbid the trial of fugitives surrendered by foreign states, except on charges founded on the facts on which their surrender was made.
8. Jones and Doobay quote an early legal opinion for the English government from 1792, to the effect that "such as are charged by the states whose subjects they are with high treason, murder, or defrauding their state, or other atrocious crimes … if the sovereign of such state applies to have them delivered up … [the king] is, by the constitution, invested with the power of granting or refusing the application"; Jones and Doobay on Extradition and Mutual Assistance, paragraph 1-004. Extradition as an act of sovereigns, as was the case, or sovereign states, as is now the case in modern times, through treaties and arrangements delineating when surrender should happen and the exceptions that might be made continue to characterise the law in this area. The 1965 Act and the European Convention on Extradition, the treaty relevant to this application to surrender a suspect from a country within the Council of Europe to the United States of America, reflect the sovereign nature of the surrendering of a suspect from countries party to the treaty. It is a mistake to think of extradition as a legal scheme without any governmental participation. That continues to be central, notwithstanding the construction of a legal code as to the role of the courts and the role of the Minister in this process.
9. Apart from an emergency arrest pursuant to order of the High Court under section 27, which is temporary, it is for the Minister to receive a request for extradition whereupon the Minister signifies "to a justice of the High Court that the request has been made" and thereupon an arrest warrant is issued on that certificate under section 26. That request must be made to the Minister by "a diplomatic agent of the requesting country, accredited to the State", under section 23. A section 27 emergency arrest issued by the High Court, prior to the formal receipt of an extradition request by the Minister, must be informed to the Minister who "may, if he thinks fit, order the warrant to be cancelled and the person arrested thereunder released." Section 24 of the Act gives to the Minister the entitlement to decide between requests from "more than one country, either for the same offence or for different offences" as to "which, if any of the requests is to be proceeded with".
10. The Convention proscribes an obligation to extradite in Article 1 by stating that the contracting parties "undertake to surrender to each other", only subject to "the provisions and conditions" of the treaty, "all persons against whom the competent authorities of the requesting" state "are proceeding for an offence or who are wanted … for the carrying out of a sentence or detention order." Similarly, section 9 of the 1965 Act provides:
Where a country in relation to which this Part applies duly requests the surrender of a person who is being proceeded against in that country for an offence or who is wanted by that country for the carrying out of a sentence, that person shall, subject to and in accordance with the provisions of this Part, be surrendered to that country.
11. Decisions as regards countries with whom mutual extradition arrangements should be made, and the terms of the applicable treaties, are a matter for the Minister for Justice and Equality and the Minister for Foreign Affairs. Orders initiating extradition agreements are to be laid before each House of the Oireachtas under section 4 of the Act for potential annulment, having been concluded by inter-state arrangements under section 8. While court proceedings under the Convention are concerned with the validity of requesting documents, the rule of speciality, the rule of correspondence, non-extradition upon an extradition request, the identification of the suspect, and the protection of his or her fundamental rights, the final say on extradition belongs to the governmental authorities. Thus, in relation to Convention requests, under section 29, while the High Court must be satisfied that the extradition "has been duly requested", that the legislation is applicable, that there is no prohibition on surrender, and that "the documents required to support a request for extradition under section 25 have been produced", the order of the examining court or any court on appeal is not the final order. The High Court only makes "an order committing that person to a prison". Then, subject to the time limits set out in section 34, the suspect is in custody under section 29 "there to await the order of the Minister for his extradition."
12. Subject to postponing the surrender under section 32, so that a suspect may serve a sentence imposed in the State for a different offence to that requested, and subject to allowing time under section 31 for a challenge to the court order, it remains with the Minister under section 33 to finally order the extradition. That section provides:
(1) Subject to sections 31 and 32, 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.
(2) Any person to whom an order under subsection (1) directs a person to be surrendered may receive, hold in custody, and convey out of the State the person so surrendered and if the person so surrendered escapes from any custody to which he has been delivered in pursuance of the said order he shall be liable to be retaken in the same manner as any person who escapes from lawful custody.
13. Under Article 26 of the Convention, reservations may be made by a contracting party. The international expectation is that once a request is made in the proper form by a country with a reasonably fair justice system and humane conditions of punishment, the requested state will comply and order the surrender of the suspect to agents of the requesting state. Nonetheless, the legislation clearly contemplates that both the first and the last actions in the extradition process will be taken on behalf of the State by the Minister. While there may be repercussions as between the requesting country and the State when any refusal is made notwithstanding that a court has made a final order, the Minister is entitled to refuse to extradite a suspect. As a matter of fact, this has happened. In December 1988, the Government refused to surrender to Britain a Catholic priest suspected of being quartermaster to a terrorist cell in Belgium. The stated reason was a declaration at high level in the requesting state that the suspect was "a terrorist" - in other words, an infringement of the presumption of innocence. When in October 1998 the former monarch of Iran sought medical treatment in the United States of America, the President made it known that he would not accede to any request to extradite him to his home country. The Augusto Pinochet case referred to below is also relevant. These are but instances.
The Minister's role where there is jurisdictional concurrence
14. Principally at issue here is the nature of the power that the Minister for Justice and Equality exercises where the offence for which the suspect is requested may also have involved the infringement of Irish criminal law. Possessing pornographic images of children is an offence in the State, contrary to section 5 of the Child Trafficking and Pornography Act 1998, as amended. For a person to run an Internet operation from Dublin to distribute such images to other countries, the criminal law of those states may also be engaged and territorial limits may be adjusted by their law to encompass acts committed abroad. On the limited papers available, that seems to be the nature of the request here. Article 8 of the Convention allows the refusal of an extradition request "if the competent authorities" of the requested state "are proceeding against him in respect of the offence or offences for which extradition is requested." Originally, section 15 of the 1965 Act 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, this reads:
(1) Extradition shall not be granted for an offence which is also an offence under the law if the state if -
(2) 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.
15. On behalf of Eric Marques, it is argued that since section 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; that it is designed to permit the Minister to refuse extradition in the eventuality that a prosecution is declined or terminated. This, it is contended, must involve something which engages reasons that the Minister might have, "which are beyond the statutory bars to extradition." The Minister counters that argument with a sovereignty point: that extradition is an exercise of sovereignty and that the ultimate decision of whether to extradite lies with the executive and not the judiciary. The Minister also claims that the provision exists to give the executive a statutory discretion to refuse extradition for an offence which is also an offence under the law of the State even if a prosecution is terminated or is not initiated. This residual discretion, according to the State's arguments, is only exercisable by the Minister after the decision has been made not to proceed with prosecution and, hence, 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. The Minister further argues that the plain and literal meaning of section 15(2) should be adopted, which is that the subsection merely gives discretion to the Minister to refuse surrender where the situation in the section occurs.
16. In the High Court, at paragraphs 36 and 37, Donnelly J found the reasoning of the Minister persuasive:
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.
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.
17. On the analysis which follows, that decision by Donnelly J was correct. Her reasoning was upheld in the Court of Appeal. Peart J stressed at paragraph 42 of his judgment that the process of extradition is sui generis in nature and emanates from the sovereignty of states and the concomitant right of such states to prosecute offences as part of its right to uphold the rule of law in a democratic society. He further held that the Convention does not create individual rights. On the Court of Appeal's reasoning, the appellant has no individual right to even seek to have his extradition refused by the Minister. Peart J asserted at paragraph 43 that:
As the trial judge has explained so clearly and in my view correctly, s. 15(2) of the Act gives effect to that part of Article 9 of the Convention which provides that "extradition may be refused if the competent authorities of the requested Party have decided either not to institute or to terminate proceedings in respect of the same offence or offences". That is an agreement between the contracting parties to that Convention. It does not create an individual right upon any individual whose extradition is requested not to be extradited in such circumstances, or to seek not to be extradited. Whether or not the Minister chooses for whatever reason to refuse to surrender a person to the requesting state where the DPP has decided not to prosecute the extradition offences in this jurisdiction or has terminated any such prosecution is a matter solely for the decision of the Minister. The contracting parties to the Convention have agreed in effect that the Minister may choose to do so.
18. This is correct. Whereas it has been sought to persuade this Court on appeal that there is a distinction between the discretion exercised in section 15 and that in section 33 of the 1965 Act, that is not so. The amendment of section 15 merely makes provision for a new situation that the legislation did not otherwise cover. 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. Much was made in argument in the earlier iterations of this case of the personality and circumstances of the suspect. That theme, indeed, occurs in many prior cases where health is put in issue as a reason why a court should not make an extradition order; MB v Conroy [2001] 2 ILRM 311, Carne v O'Toole [2005] IESC 22, Bolger v O'Toole [2008] 4 IR 780, Attorney General v Davis [2018] IESC 27 and Attorney General v Mullan [2018] IEHC 721. The European Court of Human Rights has also considered this in a number of cases, see Khudobin v Russia (2009) 48 EHRR 22 (App No 59696/00, judgment of 26 October 2006), Taddei v France (App No 36435/07, judgment of 21 December 2010) and Aswat v United Kingdom (App No 62176/14, judgment of 6 January 2015). This issue made international headlines and prompted much academic scrutiny following the case of R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet (No 3) [2000] 1 AC 147. The House of Lords had ruled that Augusto Pinochet, a former Chilean ruler, could be extradited to Spain for alleged torture offences. However, the Home Secretary ultimately decided to refuse this extradition and to allow the suspect to leave Britain, considering him medically unfit to stand trial. The present case, however, is not about the circumstances in which health might occasion the application of, for instance, Article 8 of the European Convention on Human Rights, or some argument based on bodily integrity under Article 40 of the Constitution. What is at issue here is 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. Were it to happen, for instance, that in the few weeks awaiting extradition after the High Court had made such an order that a suspect suffered a catastrophic health collapse in custody, the Minister could for that and other reasons exercise that residual discretion. Similarly, a situation of a triumphalist declaration by high powers within the requesting state that the suspect is a major drug dealer or jihadist might evoke in the Minister a desire to protect fundamental rights and a decision to not return a suspect to a jurisdiction where a fair trial has thereby been put in jeopardy.
Interrogating the Director of Public Prosecutions
19. As has always been the case since the passing of the Prosecution of Offences Act 1974, which set up the office of independent decision-making on prosecutions that is the Director of Public Prosecutions, no reasons were given for not prosecuting the suspect in Ireland. Here, the issue is that since the Minister did not know why there was no prosecution in Ireland, her residual discretion under the 1965 Act could not have been properly exercised. On behalf of Eric Marques, it was submitted that the immunity of the prosecuting authorities from giving reasons for its decisions is not absolute. In light of the discretion granted under section 15(2) of the Act, the necessity on the part of the Minister to consider the issue of the domestic non-prosecution amounts to an exception to any immunity from the furnishing of reasons. It cannot be considered burdensome, it was contended, to provide reasons in this context. In response, the Minister focused on the enshrinement of the independence of the DPP in section 2 of the 1974 Act, and on the judgment of Denham J in Carlin v DPP [2010] 3 IR 547, where she held at paragraph 7 that "[a]n 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." She further relied on the dicta of Charleton J in Monaghan v DPP [2007] IEHC 92 at paragraph 9, which states that:
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.
20. In the High Court, it was noted by Donnelly J that it is "undoubtedly the case" that the Director of Public Prosecutions is independent and her view was that section 15(2) does not trammel this. She held that the 1965 Act does not provide for an exception to the Director of Public Prosecution's immunity from giving reasons, and that in the absence of a statutory provision to the "well enunciated practice" of the DPP, there would have been no obligation to furnish reasons to the Minister even if requested. At paragraph 53, Donnelly J stated:
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.
21. In the Court of Appeal, the reasoning of the High Court was upheld. Peart J considered that it followed "inexorably" from his reasoning as to the meaning of section 15 that the suspect was not entitled to require the Minister to obtain from the Director of Public Prosecutions her reasons for not prosecuting him. Peart J's view, at paragraph 45, was that the Minister "does not have to explain either why he has not considered refusing extradition under that section, or if he has so considered, why he has decided not to refuse." Peart J endorsed his comments on this issue in the previous Court of Appeal action taken by the appellant ([2016] IECA 373) where it was contended that he should not be extradited because he was prepared to sign pleas of guilty to offences in this jurisdiction and that he should have been prosecuted here, commenting at paragraph 23:
The decision not to prosecute the appellant affects no recognised right in law. In my view it follows that he has no free-standing right to be given the reasons for the decision not to prosecute. The right to reasons must relate back to the type of decision under scrutiny and to some right actually engaged. If he has no right even to request what he is requesting, he has no right to reasons why his request is refused.
22. Since the final decision as to whether to accede to or to refuse an extradition request is with the Minister, it is she or he who is vested both with the authority to decide and with the responsibility to consider the State's attitude. While the international agreements to which the State is party, such as the Convention, contemplate that an extradition request will be facilitated and should be granted, the Minister will remain open to persuasion that a suspect should not be surrendered. That is the responsibility of the Minister alone. It can have nothing to do with whether the prosecuting authorities thought that, for instance, the offence was more closely connected to the requesting country in terms of any harm that a suspected crime may have done, or whether the evidence was likely to be excluded in the context of the legal formalism of Ireland's criminal justice system. Rather, the Minister has the final political decision. What has occurred before through the court system may enable him to make the order of surrender to another state, but he is not so obliged. If circumstances radically changed or if the nature of relations between states means that at governmental level, surrender is considered unwise, then that decision may be taken. It is not at all necessary to be trammelled by, or informed by, any attitude taken either by a court on the analysis of the papers, the formalities of extradition or the rights of the accused, or by any issue as to why no prosecution took place locally. It remains the Minister's decision.
Adequacy of reasons
23. On 31 May 2017, according to his counsel, Eric Marques's solicitor wrote a detailed letter to the Minister pleading that he ought not to be extradited while "he was on the way to the airport". That letter emphasises that the decision of the Director of Public Prosecutions "has not been explained and is not readily explicable", again stated that the suspect suffered from a developmental disorder, and that extradition should not take place. The letter, in part, reads:
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 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 insufficient time that our client can consider it.
24. The response of the Minister is dated 2 June 2017, the solicitor's letter having effectively stopped the surrender of the suspect. That letter states that an order for extradition under section 33 of the 1965 Act had been made. The letter continues:
In making this decision, the Tanaiste considered the issues raised by you in your letter of 31 May 2017.
In that context the Tanaiste 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 to the statutory independence of that Office, the Tanaiste is of the view that it is neither necessary nor appropriate that she should 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 Tanaiste also took account of the views of the High Court and Court of Appeal arising from judicial review proceedings brought by the client on this matter and noted the subsequent determinations of the Supreme Court concerning the application for leave to appeal to that court dated 25 May 2017.
25. On behalf of the suspect, it is claimed that these reasons are inadequate. It is submitted that the Minister "should have engaged properly with their letter of 31 May". It is asserted that there were eight grounds in the letter not dealt with satisfactorily by the Minister. Donnelly J in the High Court summarised further grounds of challenge to this letter put forward by the applicant, at paragraph 78:
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.
26. The Minister submitted that earlier cases should be distinguished from the facts of the case at hand, and claims that each point in the applicant's letter was discussed in her replying letter. Donnelly J considered that the Minister's discretion is residual in nature, and not akin, for example, to that of the decisions of the Refugee Appeals Tribunal. She found that the applicant's letter was effectively asking the Minister to review the decision of the prosecuting authorities, which would be in breach of the statutory independence of the Director of Public Prosecutions. Donnelly J reasoned at paragraph 71 that "the DPP was an independent office and that it was neither necessary nor appropriate to seek reasons for her decision", continuing that it was "a correct statement of the legal position and an entirely adequate stated reason." She found that no relevant consideration was excluded by the Minister. Donnelly J analysed the letter on the basis of splitting it into eight potential grounds but concluded at paragraph 81 that "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." In the Court of Appeal, Peart J adopted the same reasoning. He further noted, at paragraph 48, that the "reasons given by the Minister are clear, and particularly given my conclusions in relation to the seeking of reasons from the DPP nothing more was required to be explained in relation to the decision under s. 33 of the Act."
27. The commencement here is with the oft-cited cases of Mallak v Minister for Justice [2012] 3 IR 297, AMN v Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform [2012] IEHC 393 and McDonagh v The Commissioner of An Garda Síochana [2015] 4 IR 425. These decisions are the posited authority for the appellant's proposition 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." Certainly, in public law, the decision-maker should state reasons which enable the person affected by the decision to know where a person stands and why. That will enable that person to perhaps apply again, as in a refusal of a licence case, or to seek to impugn a decision on the basis of want of jurisdiction or lack of reasonableness or such disproportion in the decision that makes it unreasonable. Reasons, however, need not necessarily be extensive or philosophically analytical but must, instead, be adequate to the situation in which these are required; see EMI Records Ltd v Data Protection Commissioner and Eircom Ltd [2014] 1 ILRM 225 and FP v Minister for Justice, Equality and Law Reform [2002] 1 IR 164. Fundamental to this issue is the principle as to why any reasons might be required for the Minister to exercise a discretion which remains residual to the Minister and which constitutes an exercise of the sovereignty of the State. Important here is the fact that, in essence, the same reasons as to why the High Court should not make a custody order against the suspect to await the final order of surrender of the Minister, which had been put forward in the prior judicial review proceedings, were reiterated in the letter of the suspect. Where a fundamental breach of accepted international norms for the protection of rights is apparent within a requesting country, then, depending on the circumstances, the High Court may decline to make an order; Russell v Fanning [1988] IR 505, Minister for Justice v Balmer [2017] 3 IR 562, and YY v Minister for Justice and Equality [2017] IESC 61. The case of Minister for Justice v Celmer [2018] IEHC 153 is a recent example of where an extradition request was referred to the Court of Justice of the European Union on an issue as to concern about the state of the rule of law in the requesting state. A number of cases have considered the issue of when poor prison conditions in a requesting state can justify the refusal of an extradition request. It appears that exceptional circumstances must be present for an applicant to succeed on this ground; see Attorney General v POC [2007] 2 IR 421, Minister for Justice v Busjeva [2007] 3 IR 829, Minister for Justice v Raustys [2007] IEHC 370, and AG v Simon Murphy [2007] IEHC 342. Since those arguments were put forward and rejected in the earlier judicial review proceedings, anything set out in the letter to the Minister was essentially based on humanitarian grounds. The Minister, however, had an independent role and could take another view to that taken in the extradition proceedings by the courts or could take the same view. The Minister was entitled simply to reason that nothing had been put forward which would result in her viewing the pleas in the letter as having validity. That view was taken and explained on a reasoned basis.
28. Simply because the High Court had made an order committing the suspect to custody to await the final order of the Minister did not mean, however, that any residual discretion of the Minister was undermined. As has previously been emphasised, that discretion is one within the context of country-to-country international relations and may be exercised by the Minister accordingly. In that context, the reasons given were adequate.
Result
29. Firstly, the correct interpretation of section 15(2) of the Extradition Act 1965 and the role of the Minister for Justice and Equality thereunder has been set out in this judgment. That involves the Minister, on behalf of the State, fulfilling international obligations which are separate from the court process. The Minister retains an entitlement to refuse extradition. Secondly, the Minister is not 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; the Minister having a separate function. Thirdly, the reasons given by the Minister, judged in the context of the circumstances of the case and the preceding court decisions were adequate.
30. In the result, the order of Donnelly J and the judgment of the Court of Appeal affirming that order should be upheld.
