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Judgment
Title:
Damache -v- Director of Public Prosecutions & ors
Neutral Citation:
[2014] IEHC 114
High Court Record Number:
2013 670 JR
Date of Delivery:
01/31/2014
Court:
High Court
Judgment by:
Edwards J.
Status:
Approved

Neutral Citation: [2014] IEHC 114

THE HIGH COURT

JUDICIAL REVIEW

Record No: 2013/670 J.R.




Between:

ALI CHARAF DAMACHE
APPLICANT
AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS
AND

THE MINISTER FOR JUSTICE AND EQUALITY

NOTICE PARTY

JUDGMENT of Mr. Justice Edwards delivered on the 31st day of January 2014

Introduction:
1. The Court is concerned with an application, on notice to the respondents and notice party named above upon the direction of the High Court, (White (Michael) J.) to whom the matter was initially mentioned ex parte, for leave to apply for various reliefs and remedies by way judicial review. It arises in the context of extradition proceedings pending before the High Court and entitled The Attorney General v. Ali Charaf Damache (Record No. 2013/51 EXT), in which the applicant is before the Court pursuant to a warrant of arrest issued by the High Court on the 15th of February, 2013, under s. 26 of the Extradition Act 1965 as amended by the Extradition (Amendment) Act 1994, the Extradition (European Union Offences) Act 2001 and the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012, on foot of a request dated the 27th of February, 2012, made by the United States of America in accordance with Part II of the Extradition Act of 1965 as amended (hereinafter “the Act of 1965, as amended”) and the Treaty on Extradition between Ireland and the United States of America signed on the 14th of July, 2005, seeking the extradition of the applicant in respect of the applicant’s alleged involvement in a terrorism-related conspiracy which he is said to have orchestrated from within this State. That warrant was duly executed on the 27th of February, 2013, and a committal hearing under s. 29 of the Act of 1965 is currently pending. The said committal hearing was formally opened on the 10th of September, 2013, but presently stands adjourned pending the outcome of this application for leave to apply for judicial review.

The Relief Being Sought.
2. The draft “Statement Required to Ground Application for Judicial Review” to be filed by the applicant in accordance with Order 84 of the Rules of the Superior Courts in the event of leave to apply being granted to him, claims the following relief:

      (i) An order of certiorari quashing the decision of the first named respondent not to prosecute the applicant in respect of the alleged offences for which his extradition is sought by the United States.

      (ii) An order of certiorari quashing the decision of the first named respondent communicated on the 10th June, 2013, refusing to provide the applicant with the reasons for the decision not to prosecute the applicant in respect of the alleged offences for which his extradition is sought by the United States.

      (ii)(a) An order of certiorari quashing the decision of the first named respondent, refusing to revisit the decision communicated to the applicant on the 10th of June, 2013, not to prosecute the applicant in respect of the alleged offences for which his extradition is sought by the United States, together with certiorari of the ongoing refusal to provide reasons for same.

      (iii) A declaration that the decision by the first named respondent not to prosecute the applicant was unreasonable, disproportionate and made without proper regard to the impact that the extradition of the applicant would have on his constitutional and Convention rights.

      (iv) A declaration pursuant to section 3 of the European Convention on Human Rights Act 2003 that the first named respondent, in failing to consider the impact of extradition on the applicant’s Convention rights, has failed to perform her functions in a manner consistent with the obligations of the State under Articles 3, 5 & 8 of the European Convention on Human Rights.

      (v) An order of mandamus and/or an injunction by way of judicial review requiring the first respondent herein to give reasons for the decision not to prosecute the applicant in respect of the alleged offences for which his extradition is sought by the United States.

      (vi) A declaration that the failure of the first named respondent to give reasons for the decision not to prosecute the applicant amounted to a breach of his right to fair procedures as protected by Article 40.3 of the Constitution and has unduly hindered the applicant’s right of access to the courts, as protected by Article 38.1 of the Constitution.

      (vii) A declaration pursuant to section 3 of the European Convention on Human Rights Act 2003 that the first named respondent, in failing to provide reasons for her decision not to prosecute the applicant, has failed to perform her functions in a manner consistent with the obligations of the State under Articles 3, 5, 6, 8 and 13 of the European Convention on Human Rights.

      (viii) A declaration that s. 15 of the Extradition Act 1965 as substituted by s. 27 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 is repugnant to the Constitution.

      (ix) A declaration pursuant to section 5 of the European Convention on Human Rights Act 2003 that s. 15 of the Extradition Act 1965 as substituted by s. 27 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 is incompatible with the obligations of the State under Articles 3, 5, 6, 8 and 13 of the European Convention on Human Rights.

      (x) In the alternative, a declaration that the High Court has jurisdiction to consider whether the extradition of the applicant is prohibited on the basis that, in the interests of justice, the prosecution against him ought more properly to take place in this jurisdiction.

      (xi) A stay on any further step being taken in the extradition proceedings entitled Attorney General v Ali Charaf Damache presently before the High Court pending the determination of these judicial review proceedings (it is acknowledged any such stay application ought be on notice to the respondents and to the Extradition Judge).

      (xii) Such further and/or other order, including such interim and interlocutory relief as to this Honourable Court may seem just and meet.

      (xiii) A recommendation that the costs of the within proceedings be provided for under the Attorney General’s scheme.


Relevant Chronology
3. Before describing the grounds upon which the relief in question is being sought, it may be helpful to establish some context. The essential underlying facts of the case, and the chronology in which they arise, are not seriously in dispute and can be gleaned from a series of affidavits filed in these proceedings by Caroline Egan, solicitor for the applicant. The essential chronology is as follows:

4. In September, 2009, following receipt of intelligence from crime and security authorities in the United States of America, Detective Superintendent Dominic Hayes of An Garda Síochána, South Eastern Region, commenced an investigation into an alleged conspiracy to murder Mr. Lars Vilks. Mr. Vilks is a Swedish cartoonist who had depicted the Islamic prophet Mohammad with the body of a dog, thereby provoking serious unrest in several Muslim countries. The applicant, a Muslim of Algerian ethnicity who is also an Irish citizen residing in Ireland, was suspected of being involved in the said alleged conspiracy; along with other individuals, resident in Ireland and also in the USA. It was suspected that the applicant had recruited several people in Ireland to form a ‘terror cell’ and had sought to bring people to Ireland to train with him.

5. On the 8th March, 2010, Detective Superintendent Dominic Hayes granted a search warrant under s .29(1) of the Offences against the State Act 1939 in respect of the applicant’s dwelling. It was executed on the 9th March, 2010, and the applicant was arrested in relation to the offence of conspiracy to murder Lars Vilks, contrary to s .71 of the Criminal Justice Act 2006. Numerous items were removed from the property as evidence, including a computer.

6. Six other people were simultaneously arrested in Ireland in respect of the alleged conspiracy, including the applicant’s partner, Jamie-Paulin Ramirez. Ms. Egan believes that Gardaí suspected that the applicant had recruited or had attempted to recruit all of these individuals.

7. During the course of the applicant’s detention in Garda custody which lasted for seven days approximately, emails allegedly found on his computer were put to him in the course of twenty interview sessions. The Gardaí also outlined to the applicant in the course of the very last interview with him a number of possible criminal charges that he was might face in Ireland as a result of his alleged conduct, but they also stated that a decision in regard to that would be a matter for the Director of Public Prosecutions. The possible offences mentioned were (1) conspiracy to murder Lars Vilks, contrary to s. 71 of the Criminal Justice Act 1976; (2) threatening to engage in terrorist activity, contrary to section 6 of the Criminal Justice (Terrorist Offences) Act 2005; (3) threatening to kill or cause serious harm to one Majed Moughni on the 9th of January, 2010, contrary to section 5 of the Non Fatal Offences Against the Person Act 1997; (4) performing actions likely to stir up hatred, contrary to section 2 of the Prohibition of Incitement to Hatred Act 1989. Copies of the memoranda of these interviews have been exhibited by Ms. Egan, and the Court has duly noted their contents.

8. At the conclusion of his detention, the applicant was charged with an offence contrary to section 13 of the Post Office (Amendment) Act 1951 as amended, namely that he did on the 9th January, 2010, send a message by telephone which was of a menacing character to Madjid Moughni, and he was remanded in custody pending his trial. The applicant believes, and it has since been confirmed (see para. 22 below), that a file was also sent to Director of Public Prosecutions. That file is believed by the applicant to have contained a recommendation or recommendations from An Garda Síochána that the applicant should be further charged with some or all of the offences mentioned to him in his last interview in detention. While there is no direct evidence as to what recommendation(s) may have accompanied the said file the applicant contends that the Court may infer from the contents of the last interview that the offences mentioned to the applicant were recommended as charges.

9. In November, 2010, the applicant, anticipating possible further charges, initiated judicial review proceedings in the High Court seeking a declaration that s .29 (1) of the Offences against the State Act 1939 (as inserted by s .5 of the Criminal Law Act 1976) was repugnant to the Constitution, as it permitted a member of An Garda Síochána who had been actively involved in a criminal investigation to determine whether a search warrant should issue in relation to the said investigation. The applicant remained in custody on remand awaiting the outcome of the said proceedings, with a stay on the criminal charge pending against him.

10. A U.S. domestic warrant for the arrest of the applicant was issued on 16th November, 2010, by a United States Magistrate Judge for the Eastern District of Pennsylvania. This warrant sought his arrest based upon a complaint filed against the applicant in the Eastern District of Pennsylvania, alleging that he had conspired to create a terror cell in Europe and that he participated in the attempted theft of U.S. identity documents for use by a co-conspirator in Pakistan, in violation of Title 18, United States Code §§ 2339A and 1028.

11. On the 16th of March, 2011, the Director of Public Prosecutions decided that no further charges should be proferred against the applicant in this jurisdiction.

12. On the 8th of August, 2011, the Minister for Justice and Equality introduced in Dáil Éireann the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Bill 2011 (hereinafter the Bill of 2011). S. 25 of the Bill of 2011 as initiated contained a proposed amendment to s. 15 of the Act of 1965, which proposal was ultimately enacted as s. 27 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012, there having been no amendments to the relevant provision as the Bill of 2011 made its way through Dáil Éireann and Seanad Éireann, respectively.

13. On the 23rd of February, 2012, the Supreme Court ruled that s. 29 (1) of the Offences against the State Act 1939 (as inserted by s. 5 of the Criminal Law Act 1976) was ‘repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person’. See Ali Charaf Damache v The D.P.P. and the A.G. [2012] 2 I.R. 266. The consequence of this decision was that all evidence generated as a result of the search conducted on foot of the warrant granted by Detective Superintendent Dominic Hayes under s. 29 (1) of the Offences against the State Act 1939 (as inserted by s. 5 of the Criminal Law Act 1976) was tainted and would be inadmissible in criminal proceedings against the applicant in Ireland, through operation of the exclusionary rule.

14. On the 24th July, 2012, the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012 (hereinafter “the Act of 2012”) was signed into law. Prior to the enactment of the Act of 2012, s. 15 of the Extradition Act 1965 (hereinafter the Act of 1965) had provided:

      “15.—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.”
Section 27 of the Act of 2012 substituted for the former s. 15 of the Act of 1965 the following:
      “15.— (1) Extradition shall not be granted for an offence which is also an offence under the law of the State if—

        (a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings for the offence against the person claimed, or

        (b) proceedings for the offence are pending in the State against the person claimed.


      (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 the 18th of January, 2013, Ireland received a request duly made by the United States of America and duly communicated by its embassy, seeking the applicant’s extradition.

16. On the 15th of February, 2013, a warrant of arrest was issued by the High Court under s. 26 of the Act of 1965 as amended, authorising the arrest of the applicant.

17. On an unspecified date in February, 2013, the applicant pleaded guilty before Waterford Circuit Criminal Court to the charge still pending against him of sending a message of a menacing character by telephone contrary to section 13 of the Post Office (Amendment) Act 1951 as amended. The applicant received a four year prison sentence in respect of this offence back dated to the date he went into custody.

18. On the 27th of February, 2013, the applicant was arrested in execution of the warrant of arrest issued in respect of him under s. 26 of the Act of 1965 as amended and was brought before the High Court.

19. By a Notice of Motion dated the 22nd of July, 2013, issued in the extradition proceedings pending before the High Court and entitled The Attorney General v. Ali Charaf Damache (Record No. 2013/51 EXT), the respondent in those proceedings (the applicant in the present proceedings) sought various reliefs including discovery of documents. Following a hearing spanning two days i.e., the 30th and 31st of July, 2013, this Court refused to grant the reliefs sought for the reasons set forth in my ex-tempore judgment of the 31st of July, 2013, – see Attorney General v Ali Charaf Damache (High Court, Edwards J., ex tempore, 31st July, 2013). What is of relevance in the context of the present proceedings is the basis upon which discovery was sought, and in particular a course of correspondence between the moving party’s solicitor, Ms. Egan and the first named respondent, her servants or agents, which correspondence was exhibited before the Court, and is again relied upon in the present proceedings. This correspondence will be reviewed in detail in the next section of this judgment.

20. The present judicial review proceedings were commenced on the 6th of September, 2013, and, as stated in the introduction to this judgment, the application for leave to apply for judicial review was initially mentioned ex parte before Mr. Justice Michael White at a vacation sitting of the High Court on that date. The learned High Court Judge declined to deal with the matter ex parte and directed that the application should instead be brought upon notice to the respondents and the notice party herein. That was duly done.

21. On the 10th and 11th of September, 2013, the extradition proceedings entitled The Attorney General v. Ali Charaf Damache (Record No. 2013/51 EXT) were opened before this honourable Court by counsel for the Attorney General and the Court was taken in detail through various necessary, but in this case uncontroversial, proofs; at the end of which the extradition proceedings were adjourned sine die, and on a part heard basis, pending the determination of the present judicial review proceedings.

22. Also, on the 11th of September, 2013, this Court commenced hearing the applicant’s application for leave to apply for judicial review, which hearing continued on the 12th of September, 2013, and further continued on the 14th, 15th, 16th, 22nd and 23rd of October, 2013, at the end of which the Court reserved its judgment.

23. It bears mentioning at this point that at the hearing on the 11th of September, 2013, Mr. Remy Farrell S.C., who with Ms. Cathleen Noctor B.L. represents all of the respondents and the notice party in these proceedings, formally conveyed to the Court on behalf of the first name respondent, the Director of Public Prosecutions (hereinafter “the DPP”), in accordance with s. 4(3)(b) of the Prosecution of Offences Act 1974, for the purposes of s. 15 of the Act of 1965 as amended, that:

      • the DPP is not considering whether or not to bring proceedings for the offences which are the subject of the extradition request as against the respondent;

      • no proceedings are pending in respect of the said offences within the State as against the respondent.

Counsel for the respondents further informed the Court on this occasion that a file had been received by the first named respondent from An Garda Síochána touching on or related to the offences set out in the extradition request and that a direction issued on the 16th of March, 2011, that no prosecution would be brought.

Affidavit Evidence on behalf of the Applicant.
24. The Court has received and has taken due account of the contents of a number of affidavits filed on behalf of the applicant in these judicial review proceedings, as well as the documents exhibited therewith. These are the affidavits of Caroline Egan, solicitor for the applicant, sworn on the 5th of September, 2013; on the 15th of October, 2013 and on the 16th of October, 2013, respectively. Where necessary the Court will refer in this judgment to aspects of the evidence offered by Ms. Egan and documents exhibited by her.

The Relevant Correspondence
25. On the 8th of May 2013, the solicitor for the respondent in the extradition proceedings (the applicant in the present judicial review proceedings), Ms Egan, wrote to the Chief State Solicitor’s Office, Extradition Section, in the following terms:

      “Dear Sir/Madam,

      We act on behalf of the above named Respondent, whose extradition is sought by the United States of America in respect of alleged offences of 'Conspiracy to provide material support to terrorists' and 'Conspiracy to commit identity theft in furtherance of terrorist activities'.

      We intend to argue that the extradition of the Respondent is barred having regard to the culpable delay in seeking his extradition and the resulting prejudice to him. We also intend to make an 'abuse of process' argument, based on an assertion that the request for the Respondent's extradition was delayed by the US authorities until the relevant law in this jurisdiction was changed.

      Up until July 2012, the extradition of the Respondent would not have been possible, having regard to S.15 of the Extradition Act 1965 and to the decision of the High Court in AG v Garland [2012] IEHC90. This is because the purported conspiracy referred to in the extradition request is alleged to have been directed by the Respondent from Ireland, with most of the overt acts committed here.

      Shortly after the decision of Edwards J in Garland in February 2012, legislation was enacted which altered the long-standing principle that a serious offence alleged to have been committed in this jurisdiction must be prosecuted here, rather than in a different jurisdiction with a lesser connection to the alleged criminal activity.

      The Respondent is concerned that an undue influence may have been brought to bear by the requesting State in respect of the introduction of S.27 of the Extradition Amendment Act 2012. As Deputy John Halligan put it in the Dáil debates in relation to the amendment, 'The Minister may or may not admit that he has been contacted by the American authorities or some of their agencies. It is interesting that the Bill has come before the Dáil so quickly. It reminds me of a song by Sandie Shaw called "Puppet on a String". No answer was forthcoming from the Minister.

      According to the affidavit of Assistant US Attorney Jennifer Arbitier Williams, the domestic warrant for the arrest of the Respondent was issued on 16th November 2010. It follows that a decision had already been taken to seek his extradition. This intention was confirmed at a press conference by the Justice Department in Washington the following October. The question therefore arises as to why it took a period of at least two years and 2 months for the requesting State to formally request the extradition of the Respondent. We now seek information, detailed below, in relation to this aspect of the Respondent's case.

      The Respondent will also argue that S.27 of the said Act must be applied in such a way as to vindicate and safeguard the rights of Irish citizens to due process and to other core constitutional rights. It will be asserted that this requires the applicant to demonstrate why a citizen who is alleged to have committed a crime in this jurisdiction and who can, in principle, be prosecuted here should instead be prosecuted in a foreign jurisdiction.

      It will be argued that the prosecution of the Respondent in the US would result in further breaches of the constitutional rights referred to in the Supreme Court case of Damache v DPP [2012] IESC11 and breaches of other constitutional rights of the Respondent. The prosecution initiated against the Respondent in the requesting State appears to have been tainted from the outset by reliance on material, including a computer, obtained as a direct result of an unconstitutional search of his dwelling in March 2010. From an examination of the Indictment exhibited by Assistant US Attorney Williams and a consideration of the surrounding circumstances of the Respondent's case, it would appear that the unconstitutionally obtained evidence may have been adduced before the Grand Jury which ultimately recommended that charges be brought against the Respondent.

      It is also clear from Ms Williams's affidavit that the requesting State intends to rely on 'physical evidence' to corroborate testimony of cooperating witnesses and that it seeks 'the seizure and eventual surrender of all articles acquired as a result of the offences or which may be required as evidence if extradition to the United States is granted.' Accordingly, it would appear that the unconstitutionally obtained evidence might be adduced against the Respondent at his trial.

      For the above reasons, we will invoke the need for close supervision of the Respondent's case by our own Courts, in circumstances where the evidence against him was generated in an investigation in this jurisdiction and where our Supreme Court has already made adverse findings in relation to aspects of the said investigation.

      It will also be argued that 'cooperating witnesses' would be giving evidence of alleged interactions with the Respondent that took place while they were in this jurisdiction and that these witnesses could, if necessary, give evidence of same by way of video-link from the US under Mutual Assistance legislation. Accordingly, it will be argued that there is no reason why the Director of Public Prosecutions could not prosecute the Respondent here, in lieu of extraditing him to a different jurisdiction to face a trial relying on exactly the same evidence.

      In order to make these arguments effectively, we require the applicant to answer the following questions:

      1. Please confirm whether it is the intention of the Director of Public Prosecutions to prosecute the Respondent in respect of any offences related to the subject-matter of the extradition request in the event that the Respondent is not extradited.

      2. In the event that it is not intended by the Director of Public Prosecutions to prosecute the Respondent in this jurisdiction, please outline the basis for the decision not to prosecute him.

      3. Please confirm whether or not a Garda file was ever received by the Director of Public Prosecutions in respect of the subject-matter of the extradition request, or related offences, and whether a recommendation was given by the investigating Gardaí that the Respondent should be prosecuted in respect of same.

      4. Please confirm whether evidence generated directly or indirectly as a result of the search of the Respondent's dwelling, or through any other means in this jurisdiction, was put before the Grand Jury which returned an indictment against the Respondent. If it was, please outline the nature of the said evidence.

      5. Please confirm whether the Respondent or any of his alleged coconspirators were subjected to investigative techniques such as phone-tapping, email-hacking, covert entry onto private property, torture or use of 'enhanced interrogation' techniques, the use of an Agent Provocateur or entrapment or any other technique that might amount to a culpable breach of a constitutional right.

      6. Please confirm whether inducements have been offered to any person to testify against the Respondent at trial in the United States, including a reduced sentence, financial incentives, immunity from prosecution or entry onto a witness protection programme.

      7. Please confirm whether there were any contacts in advance of the extradition request made in January 2013 (whether by way of email, phone, letter, in person or through any other form of communication) between any agents of the requesting State and agents of the Irish State (including Government officials, diplomats, politicians, officers of the applicant or of the Director of Public Prosecutions or the Gardaí) in relation to the prosecution of the Respondent in this jurisdiction, the applicability of S.27 of the Extradition Amendment Act 2012 to the Respondent's case, his proposed extradition to the US or his prosecution there. If any such contacts took place, please outline the contents and the dates of same.

      In addition, we seek the following by way of voluntary discovery:

      8. Any documents in the possession or in the procurement of the applicant, including correspondence between members of An Garda Siochána and the Director of Public Prosecutions, and internally in the office of the Director of Public Prosecutions, in which the prosecution of the Respondent in respect of the conspiracy charges referred to herein or related charges was considered.

      9. Any documents or correspondence in the possession or in the procurement of the Applicant, including any internal correspondence, advices of legal officers or of Counsel furnished to the offices of the Applicant or the Director of Public Prosecutions, correspondence of government officials, diplomats or politicians, or of the Gardaí, created in advance of the extradition request made in January 2013, in which the possible extradition of the Respondent was considered.

      10. Any documents or correspondence in the possession or in the procurement of the Applicant, in respect of the proposed prosecution or extradition of the Respondent, between agents of this State and the requesting State. This includes correspondence between officers of the applicant or of the DPP, the Gardaí, government officials, diplomats, or politicians.

      11. Any documents or correspondence in the possession or in the procurement of the Applicant, including any internal correspondence in the office of the Applicant, advices of legal officers or of Counsel furnished to the office of the Applicant, any correspondence between the offices of the Applicant, the DPP and the Gardaí, relating to the introduction of S.27 of the Extradition Amendment Act 2012 in which the Respondent's case was mentioned.

      Please note that in the event that the Defendants [sic]fail to make voluntary discovery in the terms sought within 21 days hereof, the Plaintiff [sic] will issue the necessary notice of motion seeking discovery.

      Yours faithfully”

26. On the 10th of June, 2013, the Chief State Solicitor’s office replied to the applicant’s solicitor’s said letter in the following terms:
      “Dear Ms Egan,

      We refer to your letter dated 8th May 2013 regarding the above matter.

      1. You seek confirmation of the intention of the DPP in the event that the respondent is not extradited. This does not seem to us to be of any relevance to these proceedings as it relates to entirely contingent circumstances.

      2. There exists no obligation on the DPP to explain a decision not to prosecute the respondent.

      3. The nature and content of any recommendation by An Garda Síochána to the DPP is a matter that is manifestly privileged. Moreover, the fact of any such recommendation is of no relevance to the issues in these proceedings.

      4. The US authorities have confirmed that neither the superseding indictment nor the extradition request relies upon evidence seized in the course of the search of the respondent's dwelling. They have also confirmed that such evidence will not be used in the course of the respondent's trial in the event of his surrender.

      5. With respect, this request amounts to no more than a trawling expedition. There seems to be a misunderstanding as to the scope and purpose of the instant proceedings under the Extradition Act, 1965. No doubt, the respondent will have the opportunity to test issues of substance and admissibility of evidence at his trial subsequent to his surrender.

      6. As per 5 above.

      7. With respect, this request is an entirely blatant trawling exercise as much as apparent from the scope of same. Moreover, the information sought is not relevant to the determination of these proceedings.

      8. We will not be agreeing to voluntary discovery in relation to the category of documentation sought. Incidentally, we note that no effort has been made to indicate the relevance of such documentation to the determination of the extradition request. Again, this would appear to be little more than a trawling exercise. In addition, it is patent that all of the material sought under this heading would, prima facie, be subject to legal professional privilege. As such, we cannot see how such a request is intended to progress the proceedings.

      9. As per 8 above.

      10. As per 8 above, albeit that such documentation would, in principle, be subject to other forms of privilege.

      11. As per 8 above.

      Yours sincerely,”

27. The course of correspondence did not end there. In a lengthy further letter written in rejoinder and dated the 22nd of July, 2013, the solicitor for the applicant sought to engage with the positions adopted by Chief State Solicitor’s office in respect of her client’s various requests and, in an attempt to demonstrate relevance and necessity, sought to amplify and outline in greater detail various dimensions of the case that the applicant then intended to make at the committal hearing under s. 29 of the Act of 1965. As much of this is not ostensibly relevant to the present application for leave to apply for judicial review, the Court will only quote selectively from this letter. Ignoring for the moment the proposed constitutional challenge to s. 15 of the Act of 1965 as amended, the relief being sought, recited above at paragraph 2, demonstrates that the main focus of the proposed judicial review is on the role and actions/inactions of the DPP vis a vis the criminal investigation into the applicant’s alleged involvement in matters that are now central to the extradition request. This Court is not presently concerned with other issues flagged as likely to be raised at the extradition hearing itself, such as whether evidence obtained in breach of the applicant’s constitutional rights was relied upon before the Grand Jury in the United States, miscellaneous fair trial issues, the proportionality of the enhanced sentencing regime that the applicant faces if convicted in the USA, conditions in U.S. prisons, and so on. Therefore, the Court will only quote from those parts of the said letter that refer to directly or obliquely to the role of the Irish DPP in the case.

The letter of the 22nd of July, 2013, stated (inter alia):

      “Dear Madam,

      We note the contents of your letter of the 10th June. We feel that there has been a failure to properly engage with the issues set out in our letter of the 8th May last. We would ask that renewed consideration now be given to the request for information and discovery set out therein. We hope that your client will join us in a constructive attempt to narrow the issues that are to be litigated at the discovery hearing on the 30th July.

      In relation to paragraphs 1, 2, 3 & 8 of our numbered request for information and your response at paragraphs 1, 2 & 3:

      The Respondent wishes to make related arguments based on the interpretation of S.27 of the Extradition Amendment Act 2012 and on an alleged 'abuse of process' relating to the delay in processing the extradition request by the US authorities. We will argue that S.27 implicitly safeguards against abuses, such as where there has been a decision taken, based on improper considerations, not to prosecute in this jurisdiction. We will submit that the Court itself has a role to play in determining whether the Respondent can be extradited having regard to these implicit safeguards; that this is not the sole responsibility of the Minister for Justice; and that the said section would be unconstitutional if it could not be so construed.

      It would be unfair to export or to delegate the prosecution of an Irish citizen, merely because another country has more enthusiasm for the task and is exerting political pressure; or because evidence generated in this jurisdiction is tainted; or because witnesses might have to travel here to give evidence. We contend that some or all of these factors were in play when a decision was taken not to prosecute the Respondent. There is evidence to support this and we do not accept that our request for information amounts to a 'trawling' exercise. The Respondent has valid concerns in this regard which are neither artificial nor fanciful. If we are misguided in any of our concerns, why will the applicant not state this categorically?

      Based on the evidence apparently available to the US authorities, the DPP could also have directed a prosecution in Ireland. According to a Sunday Independent article published in or around the end of 2011, a file went to the DPP from An Garda Síochána recommending that the Respondent be prosecuted in respect of the conspiracy which is the subject matter of the extradition request.

      We do not agree with your contention at paragraph 2 that 'there exists no obligation on the DPP to explain a decision not to prosecute'. In Eviston v DPP [2002] 3 IR p.270, Keane J acknowledged that where there is evidence that the DPP has 'abdicated his function or been improperly motivated” then the DPP can be called upon to give reasons. I should add that this information is sought by us not as an end in itself, but in furtherance of the legitimate arguments to be advanced in the present proceedings.”

      “It is acknowledged that some of the categories of documents sought herein would ordinarily be subject to legal professional privilege. However, this privilege cannot be claimed over legal advice which has the effect of harming the administration of justice by preventing the exercise of a legal right or entitlement; in this case, the vindication of the Plaintiff's constitutional rights. If agents of the applicant, the DPP or of the State took concerted steps to facilitate the extradition of the Respondent to the Requesting State in advance of the extradition request, in conjunction with taking an improperly motivated decision not to prosecute him here, this would amount to a breach of the Respondent's legal rights sufficient to defeat the privilege.”

      “In relation to paragraphs 7, 9, 10 & 11 of our request and your reply at paragraphs 7 & 8

      You assert that the information and the documentation sought are not relevant to these proceedings. We say that in all the circumstances, the Respondent ought not be extradited having regard to principles of fundamental fairness in the manner in which the State deals with its citizens; and in order to protect and vindicate his right to a fair trial, to fair procedures within the criminal process and to bodily integrity and dignity during his incarceration.

      We contend that the Respondent could, in principle, have been charged in March 2010 in respect of these alleged offences. If this had occurred, our own Courts could then have fully vindicated the constitutional rights identified in the Supreme Court decision in Damache v DPP [2012] IESC 11. Such a course would also have prevented multiple possible breaches of the Respondent's constitutional rights in the Requesting State, as identified herein. We say that these are relevant factors that the Court should take into account in considering whether or not to refuse extradition. In coming to a decision, it will clearly assist the Court to know, even in broad terms, when, why and how the decision was arrived at to not prosecute the Respondent.”

      Tactical Delay by Applicant and Abuse of Process

      If it transpires that the extradition request for the Respondent was delayed pending a change in the law designed to permit his extradition, this could amount to an abuse of process in the circumstances of the Respondent's case.

      There is evidence to support these contentions: the unexplained delay in seeking the Respondent's extradition between the October 2010 arrest warrant and January 2013, when the extradition request finally issued; the failure of the DPP to bring charges during this period, notwithstanding the recommendations of An Garda Síochána; the introduction of the Extradition Amendment Act 2012 shortly after the Garland decision of Edwards J. and the failure of the Minister for Justice to address the concerns of members of the Dáil that an undue influence had been brought to bear by the United States authorities.

      All of these matters are within the power or procurement of the applicant Minister. Fair procedures require that the requested documentation and information should be provided to the respondent and to the Court. Absent to this being done, there is a serious risk that injustice will result. The applicant should not be permitted to hide behind a privilege plea for tactical reasons, particularly where all of these matters are within his knowledge or procurement.

      We would reiterate that it is still open to the applicant to refute in specific terms the Respondent's genuine and legitimate concerns, rather than merely characterising his requests as the manoeuvrings of someone who is attempting to manufacture a case. We call upon you to do so now …”

      Yours faithfully,”


Grounds Upon Which Relief is to be Sought
28. The draft “Statement Required to Ground Application for Judicial Review” identifies the grounds upon which the specified relief will be sought in the event of this Court granting the applicant leave to apply for the said relief by way of judicial review. These are advanced under four main headings, as follows:

“Unreasonable decision not to prosecute the Applicant
      8. It can be inferred from the fact that there is evidence available to the requesting State, that the decision of the First Named Respondent was not based on a lack of evidence. It must therefore have been based on ‘public interest’ grounds.

      9. In this regard, there are many relevant matters which ought properly to have been considered in the unusual and singular context of the Applicant’s case. Such matters relate, inter alia, to the importance of prosecuting a serious offence allegedly committed within this jurisdiction; the propriety of delegating such a prosecution to a country with a lesser connection to the alleged offence; and the many potential adverse consequences for the Applicant if tried, convicted and sentenced in the United States.

      10. The decision of the First Named Respondent fails a proportionality test and is unreasonable; as it exposes the Applicant to extradition to another jurisdiction where his constitutional and Convention rights would clearly receive less protection, and in circumstances where there was sufficient evidence to put the Applicant on trial here. In this regard, Section 3 of the European Convention on Human Rights Act 2003 enjoins the organs of State, including the First Named Respondent, to carry out their functions in a manner which is compatible with the State’s obligations under Articles 3, 5 & 8 of the European Convention on Human Rights.

      11. The First Named Respondent cannot assert that the consequence of extradition for the Applicant were not within its function to consider. Having regard to the provisions of S.27 of the 2012 Act, the First Named Respondent should have weighed all of the relevant factors in light of the fact that the Applicant could be extradited in the event that the First Named Respondent decided not to prosecute him.

      12. It would be unreasonable and disproportionate, given the consequences of a decision not to prosecute, for the First Named Respondent not to have considered such matters. The decision not to prosecute makes extradition an altogether more likely outcome, as it facilitates the invocation of S.27 of the 2012 Act; and leaves to the Court and the Minister the unappealing option of refusing to extradite and, thereby, to grant immunity to an individual suspected of committing offences of the highest order of gravity.

      13. In the alternative, if the First Named Respondent failed to take such matters into account and to properly assess them, the decision ought also to be quashed on this basis.

      14. The applicant seeks leave to argue that the impugned decision of the DPP was taken without regard to relevant considerations and in breach of the Applicant’s rights to natural and constitutional justice.


Breach of the duty to give reasons
      15. As a result of the First Named Respondent’s failure to give reasons, the following matters are entirely unclear:

        a. When the decision was taken by the First Named Respondent; and whether it was after the introduction of the said S.27 of the 2012 Act and on foot of an indication by the Requesting State that they wished to prosecute the Applicant instead.

        b. Whether, in weighing the aforementioned matters and before coming to a decision, the First Named Respondent took into account the fact that a decision not to prosecute would open the possibility of an extradition to the requesting State, and that the Applicant might be subjected to conditions there which were very different to and far more onerous than in this jurisdiction.

        c. Alternatively, whether the First Named Respondent discounted the possibility that these extradition-related factors were within her function to consider.


      16. Valid considerations do arise which may justify the protection afforded to the First Named Respondent against giving reasons in most cases. In the singular and exceptional circumstances of the Applicant’s case, however, different considerations arise which justify departure from the normal practice.

      17. The protection afforded to the First Named Respondent against giving reasons provides her with an unaccountability which is unwarranted on the particular facts of the Applicant’s case and which significantly hinders his attempts to prevent his extradition. There will be no opportunity, at any stage of the extradition process, to properly weigh the issue of appropriate forum if the reasoning of the First Named Respondent is not available for the Court and the Minister to consider.

      18. In all the circumstances, the failure to give reasons amounts to a breach of the Applicant’s right to fair procedures and his right of access to the Courts, as protected by Article 34.1 & 40.3 of the Constitution and Article 6 & 13 of the European Convention on Human Rights.

      19. The refusal to give reasons appears to be based on a blanket type policy, without regard to the singularly unusual facts of the Applicant’s case, and without regard to important jurisprudential developments on the public law side.


Inappropriate forum as a potential bar to extradition
      20. The European Court of Human Rights in the seminal extradition case of Soering v. the United Kingdom, 98 ILR 270, has stated that considerations in favour of extradition “must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases’. Therefore, if a prohibition on extradition based on human rights considerations resulted in immunity from prosecution for a serious offence, this would be considered by the Court in assessing whether it is proportionate to extradite the individual. The European Court of Human Rights has also, in the Babar Ahmad case, held that the Convention does not require the Contracting States to impose Convention standards on other States.

      21. Therefore, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an extradition case. Where, however the person whose extradition is sought can instead be prosecuted in the jurisdiction of the requested State, the same considerations ought not to apply. In such circumstances, the Court could balance all competing considerations and conclude that the extradition is barred having regard to potential human rights breaches and to the fact that the prosecution could instead take place in this jurisdiction.

      22. Having regard to S.27 of the 2012 Act however, the Applicant cannot raise arguments relating to the appropriate forum to bring the prosecution; and cannot claim that this should be a decisive factor in assessing whether to refuse extradition based on human rights considerations. The High Court (Edwards J) has so held in a recent discovery application brought by the Applicant within the extradition proceedings.

      23. In the United Kingdom, legislation was introduced in 2012 to permit the Court hearing the extradition case to consider whether, in the interests of justice, the extradition of a person ought to be barred having regard to issues of forum. There are many considerations which would be considered relevant in the Applicant’s case, if a regime similar to that in the UK was in place in this jurisdiction. The Applicant cannot litigate any of these matters under the current extradition regime, by reason of s.27 of the 2012 Act. While it is acknowledged that the Applicant would still not be guaranteed success if he could raise such matters in furtherance of a forum argument, a considerable injustice arises from the fact that such issues cannot even be litigated.


Unconstitutionality of S.27 of the 2012 Act
      24. If the First Named Respondent denies responsibility for assessing the consequences of not prosecuting the Applicant, there will have been no opportunity, at any stage of the extradition process, to properly weigh the issue of appropriate forum. As noted, the Court itself will lack the means to carry out a proper assessment, being in ignorance of the reasons for the decision not to prosecute. By reason of the terms of S.27 of the 2012 Act, the Court would also lack the jurisdiction to do so.

      25. This leaves to the Minister the task of considering the issue of the appropriate forum, but only after the decision not to prosecute has been taken and after the Court, perhaps only narrowly, has concluded that extradition is not prohibited on human rights grounds. In such circumstances, the Minister would have little choice but to extradite, in order to prevent a person charged with a serious offence from gaining immunity from prosecution.

      26. In coming to a decision on the propriety of refusing extradition on grounds of forum, there are many relevant factors that could be considered by the Court in assessing the appropriate forum:


        a. The offences were allegedly committed in Ireland. The State has a duty to prosecute serious offences committed here, so as not to allow our jurisdiction to become a haven for similar offending in future.

        b. The Applicant would undertake not to challenge a decision of the First Named Respondent to prosecute him in this jurisdiction, should the Court indicate that Ireland is the more appropriate forum for prosecution and that it is in the interests of justice that he be prosecuted here.

        c. The Applicant is an Irish citizen. He has never set foot in the Requesting State and it is not alleged that he was targeting the Requesting State. Seven people were arrested in Ireland and it is alleged that Ireland was to be a base of operations for attacking European targets.

        d. There is no difficulty with evidence being given by U.S. witnesses by way of video-link. The Applicant undertakes not to oppose the use of any mutual assistance provisions or the use of vide-link.

        e. Our Supreme Court has already ruled on the constitutionality of a search on foot of which much of the purported physical evidence against the Applicant was generated.

        f. The Applicant litigated at considerable personal cost to gain the advantage achieved in the Supreme Court, and at a time when his extradition was absolutely barred on forum grounds. There was a significant delay in seeking the extradition of the Applicant by the Requesting State and they now seek to benefit from this delay.

        g. It is questionable whether the Court could refuse extradition based on upholding the exclusionary rule in respect of evidence which was unconstitutionally obtained in this jurisdiction; since the deterrent principle grounding the rule might not to apply in the non-domestic context.

        h. If extradited, the Applicant may face a sentencing regime which includes coercive plea-bargaining and the taking into account of unindicted conduct when sentencing.

        i. The Applicant faces the prospect of being detained in horrendous prison conditions in the United States, including being held in complete solitary confinement for a period of years. The Court might narrowly rule in favour of allowing his extradition notwithstanding concerns that it might have about the conditions he could face in prison. The Court might very well rule differently however, if it was permitted to assess whether the Applicant could instead be prosecuted in this jurisdiction.


      27. Having regard to the provisions of S.27 of the 2012 Act, these factors cannot be raised or litigated. In this respect, the extradition process that the Applicant faces is unconstitutional and incompatible with the Convention, as it unfairly prevents the Applicant from raising legitimate considerations before the Court and prevents the Applicant achieving a just outcome to his case.

      28. In all the circumstances, Article 27 of the 2012 Act breaches the Applicant’s right to fair procedures and his right of access to the Courts, as protected by Article 34.1 & 40.3 of the Constitution and Article 6 & 13 of the European Convention on Human Rights.”

(The Court would observe that the points relied upon at 26 “e” and “g”, respectively, appear to have been overtaken by events, and are now probably redundant, in circumstances where an agent of the requesting state has expressly warranted in an affidavit sworn in the extradition proceedings that, in the event of the applicant being extradited to the USA, that state will not seek to rely upon evidence seized in the course of the unconstitutional search of the applicant’s dwelling in the course of the his trial.)

Threshold for the Granting of Leave
29. There is no controversy as between the parties as to the applicable law which is well settled. The threshold to be met by an applicant for leave to apply for judicial review was considered in detail in the case of G. v The Director of Public Prosecutions [1994] 1 I.R. 374. At page 377, Finlay C.J., stated:-

      “An applicant must satisfy the Court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-

        (a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).

        (b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.

        (c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.

        (d) That the application has been made promptly and in any event within the three months or six months time limits provided for in O.84, r.21(1), or that the Court is satisfied that there is a good reason for extending the time limit. The Court, in my view, in considering this particular aspect of an application for liberty to institute proceedings by way of judicial review should, if possible, on the ex parte application satisfy itself as to whether the requirement of promptness and of the time limit have been complied with, and if they have not been complied with, unless it is satisfied that it should extend the time, should refuse the application. If, however, an order refusing the application would not be appropriate unless the facts relied on to prove compliance with r. 21 (1) were subsequently not established the Court should grant liberty to institute the proceedings if all other conditions are complied with, but should consider leave as a specific issue to the hearing, upon notice to the respondent the question of compliance with the requirements of promptness and of the time limits.

        (e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.”

30. The applicant is therefore required to establish that he has made out a stateable case or an arguable case in law. This initial process was described by Lord Diplock in R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Limited [1982] A.C. 617 at pp. 643-644 where he stated:-
      “The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”
31. In the present case the High Court directed that this application for leave should be brought on notice. In Agbonlahor v Minister for Justice, Equality and Law Reform [2007] 1 I.L.R.M. 58 the High Court held that, even though the application was made on notice, the test remained one of arguability.

32. In D.C. v The Director of Public Prosecutions [2005] 4 I.R. 281 the Supreme Court confirmed that the applicable threshold, even in an on-notice leave application, is that of arguability. Denham J. (at p. 289) spoke against “[the] danger of developing a multiplicity of different approaches” and proceeded to apply the arguability test notwithstanding that the application was on notice to the Director of Public Prosecutions.

33. Finally, it has been urged by counsel for the applicant, and the Court accepts, that it should bear in mind that the standard for obtaining leave has been described as “light” (by Denham J. in G. v The Director of Public Prosecutions [1994] 1 I.R. 374 at 381); and that it should also bear in mind the purpose behind the filter that the leave procedure represents. In regard to the latter, it is noted that Denham J. further observed in G. v The Director of Public Prosecutions (at p. 382) that the aim of the “preliminary process of leave to apply for judicial review... is... to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstateable cases proceeding, and thus impeding public authorities unnecessarily”.

Alleged Unreasonable Decision Not to Prosecute the Applicant


The Applicant’s Submissions
34. The applicant seeks leave to argue that the impugned decision of the DPP not to prosecute him in this jurisdiction, made on the 16th of March, 2011; and the further decision of the DPP, the existence of which the applicant contends is to be inferred from the evidence, refusing to reconsider her decision of the 16th of March, 2011, notwithstanding the representations made to her by the applicant’s solicitor in the said letters of the 8th of May, 2013, and 22nd of July, 2013, respectively; were unreasonable on the grounds that those decisions, and each of them, were taken without regard to relevant considerations and in breach of the applicant’s rights to natural and constitutional justice.

35. The evidence adduced in support of these claims is principally that contained in paragraphs 27 to 31 inclusive of the affidavit of the applicant’s solicitor, Ms. Egan, sworn in these proceedings on the 5th of September, 2013. Ms. Egan stated therein:-

      27. I say that the Applicant cannot conclusively state the reasons why the First Named Respondent has declined to prosecute him. It must be acknowledged that, if it was on account of there being insufficient evidence, this could well be a sufficient basis to decline to prosecute. However, it is most unlikely that this is the case. I say and believe there would appear to be reasonably strong prima facie evidence against the Applicant disclosed in the material which was provided in advance of his trial at Waterford Circuit Court and in the extradition request itself; evidence which is, at the very least, strong enough to warrant a prosecution. I say that the requesting State have certainly formed this view.

      28. I say that I am aware of a newspaper article by Jim Cusack in the Sunday Independent in late 2011 or early 2012 which stated that An Garda Síochána had recommended to the First Named Respondent that the Applicant be charged in this jurisdiction in respect of the said conspiracy. I say and believe that the article also stated that it was intended that an alleged co-conspirator of the Applicant would travel from the US to give evidence at his trial. I say that I have been unable to locate this article, as I do not have the date of publication. I say that I have spoken to the journalist who wrote it and he has attempted, unsuccessfully, to procure a copy of same.

      29. I say that I accept that such an article does not amount to strong evidence, but I respectfully say that it would tend, to some degree, to support the contention that the First Named Respondent may have seriously contemplated a prosecution, prior to an extradition request arriving from the United States.

      30. I say that as it is reasonable to infer that the decision of the First Named Respondent was not based on lack of evidence, it must have been based on ‘public interest’ grounds. I say that ordinarily, a limited set of considerations are applied by the First Named Respondent in deciding whether to prosecute; including resource issues; the interest in deterring particular forms of crime or punishing a particularly heinous crime; the balancing of the rights of the victim, the community and the person who is being investigated. I say it is acknowledged that the First Named Respondent is ideally placed to make such decisions. It has the expertise and knowledge of all relevant factors that a review Court would not lightly interfere with.I say, however, that there are many other relevant matters which ought properly to have been considered in the unusual and singular context of the Applicant’s case.

      31. I say that such matters relate, inter alia, to the importance of prosecuting a serious offence allegedly committed within this jurisdiction; the propriety of delegating such a prosecution to a country with a lesser connection to the alleged offence; the status of the evidence generated as a result of the search which was the subject of the Supreme Court decision; the fact that such material had been provided to the US authorities and was relied upon in investigating the Applicant and seeking his extradition; the many potential adverse consequences for the Applicant if tried, convicted and sentenced in the United States.”

36. The applicant acknowledges, and indeed complains, that his ability to make a case under this heading is necessarily hampered by the fact that the DPP has declined to give reasons for her decision of the 16th of March, 2011. Further, he contends that he is similarly hampered by the fact that the DPP will not even acknowledge the further decision which the applicant says must be inferred (i.e. the DPP’s alleged refusal to reconsider a possible prosecution of the applicant in this jurisdiction), much less give reasons for it.

37. Notwithstanding these constraints, the applicant makes his case in respect of the decision taken on the 16th of March, 2011, on the following basis. In circumstances where the Gardai were working in close co-operation with U.S. crime and security agencies, and where it was known that the United States of America was interested in ensuring the prosecution of the applicant in respect of the alleged conspiracy to murder Mr. Lars Vilks and related offences, the DPP, in deciding in March, 2011 whether or not to prosecute the applicant in Ireland, ought to have had regard to the possibility that the United States of America would attempt to extradite him if he was not prosecuted in Ireland, and to have taken that into account. In particular, the applicant contends that the DPP ought to have had regard to the consideration that if exposed to extradition to the United States of America the applicant, who is an Irish citizen who was resident at all material times in Ireland, would face trial in a jurisdiction where his constitutional rights and right under the European Convention on Human Rights (hereinafter “the Convention) would (it is alleged) receive less protection. The applicant contends that it may be inferred from all of the circumstances of the case that no regard was had by the DPP to what his counsel characterises as “the appropriate forum consideration”. Further, the applicant makes much of the fact that as of March, 2011 the DPP was the only person who was entitled, and the applicant would say obliged, to consider the appropriate forum issue. As it has never been open to a proposed extraditee to raise an appropriate forum issue (as opposed to a territoriality objection based upon s. 15) before the courts in an attempt to resist his or her extradition, it was all the more important that the DPP should have due regard to the appropriate forum consideration.

38. The case made by the applicant in respect of the alleged further decision refusing to reconsider the question of prosecution in this jurisdiction is somewhat similar, though not identical. The applicant contends that by virtue of the amendment to section 15 of the Act of 1965 effected by s. 27 of the Act of 2012 it is now more difficult for a person in his position to resist extradition on the basis of a territoriality objection or on inappropriate forum grounds. Had the requesting state made its request more promptly the applicant would have been in a position to rely upon s. 15 of the Act of 1965 as originally enacted, and have been in a stronger position to resist his extradition on territoriality grounds than he now is. Therefore there has been a material change in the applicant’s circumstances, and the applicant submits that that alone should have mandated a reconsideration of the question of his possible prosecution in this jurisdiction. Further, in any such reconsideration account should be taken by the DPP of the appropriate forum issue for the reasons hereinbefore stated, and particularly bearing in mind the increased difficulty of resisting extradition on territoriality grounds following the 2012 amendment to s. 15 of the Act of 1965.

39. Counsel for the applicant submits that it is not sufficient for the first named respondent to claim that the consequences of extradition for the applicant were not within the DPP’s function to consider. It was submitted that s. 27 of the Act of 2012 places a burden on the first named respondent to weight the relevant factors in light of the fact that an individual can be extradited in the event that the first named respondent decides not to prosecute.

40. Counsel for the applicant has also submitted that while it might be argued that considerations relating to the human rights of the applicant in the United States are too remote for the first named respondent to consider and that it is not within her function to enquire into such matters, such an argument cannot withstand close critical analysis. Counsel has submitted that it would be unreasonable for the first named respondent not to consider such matters, given the consequences of a decision not to prosecute for a person in the position of the applicant. It was submitted that this must be so as a decision not to prosecute, leading to the invocation of s. 15 of the Act of 1965 as amended, makes extradition an altogether more likely outcome; and leaves the Court or the Minister with the unappealing option of refusing to commit for extradition / refusing to extradite and, thereby, to grant immunity to an individual suspected of committing offences of the highest order of gravity.

41. In summary, counsel for the applicant urges upon the Court that in the circumstances outlined he can advance an arguable case, both on the facts and in law, that the DPP’s impugned decisions were unreasonable and disproportionate, given the consequences for his client of a decision not to prosecute. It is further urged that the application has been brought in a timely fashion and that judicial review is the only effective remedy that can avail the applicant in the circumstances of his case. Counsel for the applicant asks the Court to grant his client leave to apply for judicial review on that basis.


The Respondents’ Submissions
42. Counsel for the respondents contends that it is a somewhat unfortunate feature of the present application that the applicant persists with the contention that there is evidence to the effect that the decision not to prosecute was contrary to the views expressed by an Garda Síochána in their submission to the DPP. He asserts that there is simply no evidence that that is the case, and that the high water mark of what the applicant has put forward as supposed evidence is that a suggestion to that effect was made by a journalist writing in the Sunday Independent some time ago. He points out that not even a copy of the article in question has been produced much less any concrete evidence to support the assertion, and recalls (correctly) that this was already the subject of criticism by this Court in giving judgment ex tempore on the discovery application made in the extradition proceedings. Counsel for the respondent has submitted that it is doubly surprising that the applicant has not addressed this issue of proofs in the interim.

43. It was further submitted that the entirety of the case made by the applicant seems to be predicated upon the contention that there existed an obligation on the part of the DPP to take into account multiple extraneous considerations relating to the applicant and his possible extradition at the time of making a decision whether or not to prosecute him. Counsel for the respondents contends that if the applicant is incorrect in relation to this contention then the entirety of the challenge intimated by way of judicial review must fall. The claim for declarations and other reliefs in relation to the claimed obligation on the part of the DPP to give reasons is, in the first instance, entirely predicated on the supposition that there was an obligation on the DPP to approach the decision in a particular manner.

44. In so far as the decision made on the 16th of March, 2011, is concerned, counsel for the respondents stresses that this was a decision favourable to the applicant and not one to his prejudice. The D.P.P. decided not to further prosecute him in this jurisdiction. That was something entirely to his benefit. Moreover, the evidence is that no request had been made for his extradition at that point in time. Furthermore, even if the State had been in receipt of an extradition request at that time, it would not have been possible to extradite the applicant because of the territoriality bar then provided for in s. 15 of the Act of 1965. Accordingly, when the DPP decided not to further prosecute the applicant on the 16th of March, 2011, that decision was entirely to his advantage and it was not one in respect of which he can possibly complain. In addition, any suggestion coming from the applicant that it was an unreasonable decision that failed to take into account his interests is wholly untenable and absurd in the circumstances.

45. Turning to an examination of the new s. 15 itself, and how it might apply in the circumstances of the present case, counsel for the respondents submits that it is clearly the provisions of s. 15(2) which are engaged. He asks the Court to note that it speaks of a decision having been made in the past not to institute proceedings. It is also noteworthy that no other temporal restriction is placed upon this criterion - in this regard it is to be contrasted with s. 15(1) which only comes into play in circumstances where there is a decision pending with the DPP.

46. It was further submitted that when considered in the broader scheme of the Act of 1965 as amended it is clear that the provisions of s. 15(2) could be engaged in a number of entirely different circumstances:

      (i) Where the decision not to prosecute was made a long time before there was any prospect of extradition proceedings;

      (ii) Where the decision not to prosecute is made broadly contemporaneously with the institution of extradition proceedings or at least at a time when these are in contemplation;

      (iii) Where the decision not to prosecute is made subsequent to the institution of extradition proceedings;

47. Counsel has urged upon the Court that when it is considered that the Act of 1965 as amended clearly envisages that a historical decision not to prosecute may engage the provisions of s. 15, it immediately becomes apparent that this may include a decision made before the coming into force of the amendment effected by s. 27 of the Act of 2012. Indeed, that is precisely the position in this case as is apparent from its chronology. However, it is submitted the idea promoted by the applicant that the decision of the DPP not to prosecute him made on 16th March, 2011, should have taken account of a provision that was not yet on the statute books and only came into effect over a year later is unsupportable on any basis.

48. Indeed, counsel for the respondents submits, the matter can be put even further. If one accepts the applicant’s thesis that the amendment of s. 15 was precipitated by the decision of this Court in Attorney General v. Garland it would seem that the decision which he seeks to impugn also predated that event by some time (the judgment in Garland was delivered on the 27th of January, 2012). In fact, at the time that the DPP made the decision not to prosecute the respondent the Bill of 2011 containing the provision that was ultimately enacted as s. 27 of the Act of 2012 had not even been initiated.

49. Counsel for the respondents has submitted that this disposes of the entirety of the judicial review application intimated by the applicant - if he is incorrect as to the purported criteria that ought to be applied then any issue in relation to the provision of reasons is entirely moot. This is because the sole reason advanced for the obligation to provide reasons is an assertion by the respondent that he is concerned that the DPP did not apply the criteria in dispute.

50. With regard to the suggestion that there has been a further unreasonable decision, namely an alleged refusal by the DPP, in response to an alleged request to her on behalf of the applicant, to reconsider whether or not to prosecute the applicant in this jurisdiction for the offences that are the subject matter of the current extradition request, counsel for the respondents contends that the onus rests on the applicant to prove the existence of the decision he seeks to challenge as being unreasonable, and that he has failed to discharge that onus.

51. In support of his clients’ case in that regard, counsel for the respondents points to the inability of the applicant to point to any express request for a reconsideration of the decision not to further prosecute him. The applicant places particular reliance on Ms. Egan’s letter of the 8th of May, 2013, the reply thereto dated 10th of June, 2013, and the further letter from Ms. Egan dated the 22nd of July, 2013. However, counsel for the respondents points out that nowhere within either of the letters from Ms. Egan will the Court find a request to the DPP to reconsider possibly prosecuting the applicant in this jurisdiction in the light of a request for his extradition having been received by this State from the USA, and the change in the law brought about by the amendments to s. 15 of the Act of 1965 effected by s. 27 of the Act of 2012. Moreover, there is nothing in the reply dated the 10th of June, 2013, to indicate that the DPP had regarded such a request as having been made and communicating a refusal to reconsider. It was submitted that the correspondence, far from focussing on a wish to have anything reconsidered, amounts to a request for information and discovery of documents with a view to the applicant seeking to contest the extradition proceedings. While the letter of the 8th of May, 2013, does ask the DPP to confirm “whether it is the intention of the Director of Public Prosecutions to prosecute the [applicant] in respect of any offences related to the subject-matter of the extradition request in the event that the Respondent is not extradited” (emphasis added), that request is predicated upon a specific contingency arising, which might or might not arise, and in any event is inconsistent with the case being made by the applicant that the DPP was being asked in effect to reconsider a domestic prosecution for the purpose of taking into account appropriate forum considerations in the context of a pending extradition request. The DPP’s reply of the 10th of June, 2013, shows that she afforded the words used in making the said request their plain meaning, and responded directly to it, stating: “[y]ou seek confirmation of the intention of the DPP in the event that the respondent is not extradited. This does not seem to us to be of any relevance to these proceedings as it relates to entirely contingent circumstances”.

52. Counsel for the respondents submits that it is difficult to see why or how the provisions of s. 15 as amended are intended to give rise to an obligation on the part of the DPP to approach a decision to prosecute in a particular way. He says it must be borne in mind that much of the case which the applicant makes, in relation to the issue of whether the DPP is obliged to give reasons, is predicated on the assumption that he is in a special and unique position.

53. The applicant contends that the DPP is obliged to consider a number of matters when considering whether or not to prosecute. At para. 51 of his written submissions, counsel for the applicant identified these as including “the risk the applicant may be subjected to a trial process and to penal conditions in America which are very different and more onerous than conditions in this jurisdiction, the risk the applicant may face a sentencing regime which includes coercive plea bargaining and the taking into account of unindexed counts and the risk the applicant may be subject to inhuman prison conditions in America including being held in complete solitary confinement for a period of years”. Counsel for the respondents submits that leaving aside the issue of proof of any of these broad contentions it is clear that the applicant contends that the DPP must consider these matters at the time of deciding whether or not to prosecute on the basis that there exists the possibility that the respondent might be extradited if she decides not to prosecute. Whilst the point has already been made that the DPP could not conceivably have been expected to take such matters into account in March, 2011, given that the Act of 2012 did not exist at the time, it would also seem to be a direct corollary of the respondent’s argument that, were the decision being made today, the DPP would have to take such matters into account. Counsel for the respondents has submitted that when one pauses to consider that scenario it quickly becomes apparent that such an obligation would be utterly unworkable.

54. It was submitted that most obviously it would apply to an enormous number of decisions to prosecute/not prosecute. Given the very generous jurisdiction which many other countries afford themselves, a straightforward robbery may be amenable to prosecution in another state if the accused was a national of that state (on the basis of the active personality principle); or where the injured party was a national of that state (the passive personality principle); or where the financial institution/company where the robbery took place was based in that state (the protective principle).

55. That being the position in respect of a straightforward robbery, counsel for the respondents then poses the question: what of the situation where there are elements of transnational fraud or international travel? Presumably the obligation would arise in that scenario as well. Where any aspect of the conduct in question might give rise to the possibility of prosecution in another state and thereby the prospect of prosecution the DPP must take account of the criteria set out above. What of the transnational drugs mule? Presumably such a person would also be amenable to prosecution in the country from whence they came - and all points in between. Counsel for the respondents poses the question: in such a case would the DPP be obliged to consider the prospect of prosecution in Peru, where the drugs came from; or a prosecution in Nigeria, where the mule was recruited; or in Amsterdam, through which the mule transited?

56. Most problematically, submits counsel for the respondents, should the DPP exercise this discretion in favour of prosecution or against. It seems from the thrust of the applicant’s argument that it should be exercised in favour of prosecution with a view to forestalling the possibility of extradition. But what of the person who doesn’t wish to be tried here? The person who would much rather be extradited for prosecution in his or her home country? It was urged that when considered from this perspective it becomes apparent that the argument made by the applicant is little more than an assertion of an entitlement to have criminal jurisdiction exercised in the forum most convenient to him and thereby effectively put himself in the position of dominus litis merely by reason of being subject to an extradition request.

57. Counsel for the respondents then asks: what materials should the DPP rely upon? He suggests that it is noteworthy that notwithstanding the fact that the applicant has been in custody since 28th February, 2013, he has not been in a position to put any evidence before this Court to the effect that he will be subjected to a harsher regime, coercive plea bargaining, anticipated breaches of the rule of specialty or inhumane prison conditions. Counsel for the respondents submits that given the presumed personal interest and motivation on the part of the applicant to marshal such evidence for the purpose of these proceedings and his apparent failure to do so it is difficult to understand how the DPP should be expected to carry out the same exercise in his case and a great many other cases as well.

58. For all of these reasons, counsel for the respondents contends that the applicant has failed to demonstrate that s. 15 obliges the DPP to approach the decision to prosecute/not to prosecute in any case, and in the applicant’s specific case, in the manner suggested by the applicant; much less demonstrate, even on an arguable basis, that the single decision to prosecute/not to prosecute made in the case of the applicant, namely the decision of the 16th of March, 2011, was unreasonable.

Alleged Breach of the Duty to give Reasons


The Applicant’s Submissions
59. Counsel for applicant has submitted that that the law in relation to a public decision-maker’s requirement to give reasons has undergone significant change in recent times, both in constitutional cases in Ireland and also in the context of the European Convention on Human Rights. More and more, it was submitted, the focus is on whether the reasons furnished for a particular decision stand up to scrutiny on grounds of reasonableness and proportionality. Absent the decision-maker being required to give some reasons, this important process cannot occur at all. It was submitted that if, in the present case, the applicant is not furnished with reasons for the first named respondent’s decision not to proceed with a prosecution against him in this jurisdiction, he will be denied fair procedures, left in the dark as to why and on what basis the decision was taken, and his ability to resist his extradition to the United States of America will be materially impaired.

60. In development of his theme, counsel for the applicant stated that historically the Director of Public Prosecutions has enjoyed a quasi-immunity from the requirement to give reasons for his or her decisions. Indeed up until the 1980s, the view prevailed that the prosecutorial discretion was effectively unreviewable. This absolutist position of judicial reticence is reflected in such cases as State (Killian) v. Attorney General [1957] 92 ILTR 182, Judge v. DPP [1984] I.L.R.M. 224 and Savage v. DPP [1982] I.L.R.M. 385. That position pertained up until the Supreme Court decision in State (McCormack) v. Curran & Ors [1987] I.L.R.M. 225.

61. In the High Court in State (McCormack) v. Curran & Ors, Barr J. decided that the function of the DPP in deciding whether or not to prosecute an individual for a crime was an executive function, and therefore not reviewable by the Courts. On appeal, the Supreme Court differed with the High Court view, holding that the DPP’s decision can, in certain circumstances, be subject to review. In that case the prosecutor had been returned for trial in Belfast, having been charged with an extra-territorial offence within the meaning of the Criminal Law (Jurisdiction) Act 1976. The acts of which he was accused constituted offences under Irish law also and rendered him liable to arrest, charge and trial within this jurisdiction. The prosecutor wished to opt for trial in this state and accordingly he requested the relevant Irish authorities to issue a warrant for his arrest. The DPP in this jurisdiction decided not to issue a warrant and the prosecutor initiated judicial review proceedings, naming a Chief Superintendent of An Garda Síochána, the DPP and the Attorney General as respondents, and obtained conditional orders of certiorari and mandamus in the High Court in Dublin. In refusing to make absolute the conditional orders and in allowing the cause shown by the respondents, Barr J. held that the function of the DPP in deciding whether or not to prosecute an individual for the alleged commission of a criminal offence is an executive one, and one that is not reviewable by the Courts as this would interfere with the DPP’s independence. This conclusion was expressly overruled by the Supreme Court on appeal, which held that decisions of the DPP can in certain circumstances be reviewed by the Courts. However, the Supreme Court considered that in the case then before them the evidence did not exclude:

      “…the reasonable possibility of a proper and valid decision by the DPP not to prosecute the appellant within this jurisdiction and that that being so he cannot be called upon to explain his decision or to give the reasons for it nor the sources of the information upon which it was based.”
(per the judgment of Finlay C.J. at p. 237)

In the circumstances the appeal was dismissed.

62. Counsel for the applicant has drawn to this Court’s attention that, notwithstanding the dismissal of the appeal on the specific facts of the case, Finlay C.J. stated expressly in his judgment that:

      “In regard to the DPP I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him. Again, I am satisfied that there are many other factors which may be appropriate and proper for him to take into consideration. I do not consider that it would be wise or helpful to seek to list them in any exclusive way. If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I reject the contention again made on behalf of this respondent that his decisions were not as a matter of public policy ever reviewable by a court.”
63. It has been argued on behalf of the present applicant that it is not at all clear that Finlay C.J., in making this statement, was endeavouring to set out, in an exhaustive or exclusive fashion, the circumstances in which a challenge to a prosecutorial decision could be taken.

64. In a separate judgment also delivered in State (McCormack) v. Curran & Ors Walsh J., with whom Henchy, Griffin and Hederman JJ. agreed, concurred with the opinion of the Chief Justice that the actions of the DPP are not outside of the scope of review by the Courts. Walsh J. stated as follows:

      “If he oversteps or attempts to overstep his function he can, if necessary, be restrained by injunction but I do not think any step he takes or any action or omission which is ultra vires can be of the nature of orders which attracts certiorari. A failure to perform his statutory duties could however be the subject of mandamus”.
Counsel for the applicant emphasises that in the present case item (v) in the list of reliefs claimed in Part D of the draft Statement Required to Ground Application for Judicial Review expressly seeks an order of mandamus and/or an injunction by way of judicial review requiring the first respondent to give reasons for a decision not to prosecute the applicant in respect of the alleged offences for which his extradition is sought by the United States. In addition, declaratory relief is sought at D (iii) and D (iv).

65. The Court’s attention has also been drawn to the final paragraph of the judgment of Walsh J. in McCormack where he observes:

      “There is no evidence in the present case from which it could reasonably be inferred that either the Director of Public Prosecutions or Chief Superintendent Curran had abdicated their functions or had been improperly motivated”.
Counsel argues that this statement suggests that the ability to challenge a prosecutorial decision is not confined to cases where prima facie proof of improper motives can be adduced, but rather that it also extends to cases where a prosecutor may have abdicated his or her functions. Counsel relies on this as further supporting his contention that the Supreme Court in McCormack was not endeavouring to set out, in an exhaustive or rigid fashion, the only circumstances in which a challenge could be brought.

66. Counsel for the applicant has expressly stated in his submissions that the present applicant has no desire to make unsubstantiated allegations of impropriety or male fides against the Director.

(The Court considers that this is an important confirmation in circumstances where the correspondence reviewed earlier in this judgment tended to suggest the contrary, particularly the conjecture proffered at page 3 of the letter of 22nd July, 2013, that “If agents of the applicant,” [i.e., the Attorney General] “the DPP or of the State took concerted steps to facilitate the extradition of the respondent” [i.e., the applicant in the present proceedings] “to the requesting state in advance of the extradition request, in conjunction with taking an improperly motivated decision not to prosecute him here, this would amount to a breach of the respondent's legal rights sufficient to defeat the privilege.” )

Indeed, counsel for applicant acknowledges that the case law makes it clear that the casting around of serious allegations, unsubstantiated by proof or fact, in extradition proceedings, is a practice that ought be deprecated. In the present case, however, the applicant is desirous of putting forward a case that the Director may have abdicated her functions in delegating to the American prosecuting authorities the task of prosecuting a crime, which on any rendition of the facts, had its alleged organisational hub in this jurisdiction.

67. In support of the abdication of function submission, counsel for the applicant points out that there appears to be sufficient evidence against the applicant for the purposes of bringing charges in this jurisdiction: that the applicant is an Irish citizen; that the applicant has never set foot in the requesting State; that seven people were arrested in Ireland at the time of the applicant’s arrest; that it is alleged that Ireland was to be a base of operations for attacking European targets; that any U.S. witnesses that might be required to give evidence could do so by way of video link (indeed that is what had occurred at the applicant’s sentencing in Waterford in February, 2013); that the applicant has undertaken not to oppose the use of any such video link evidence; that it is now accepted by the DPP that a file was received from An Garda Síochána in relation to the matters under investigation at the time; and that the DPP has chosen not to comment on the contention that An Garda Síochána recommended that a prosecution be brought in this jurisdiction.

68. Counsel for the applicant has also very properly drawn the Court’s attention to a later judgment that, on one view of it, seems to be against his contention that the Supreme Court in State (McCormack) v. Curran & Ors did not intend to set out, in an exhaustive or exclusive fashion, the circumstances in which a challenge to a prosecutorial decision could be taken. The case in question, which came before the Supreme Court approximately eight years after the McCormack case, was that of H v. Director of Public Prosecutions [1994] 2 I.L.R.M. 285.

69. In H v. Director of Public Prosecutions the applicant had commenced a private prosecution against her husband and her brother in which she alleged that they had committed various sexual offences against her son. This followed the refusal of the DPP to initiate such a prosecution in his name. The applicant sought liberty to apply for judicial review to obtain orders compelling the DPP to initiate a prosecution or alternatively to provide reasons as to why he failed to do so. Barron J. in the High Court took the view that once an adverse decision was challenged by a person with locus standi to challenge it, the DPP was obliged to give reasons. In so concluding, Barron J. relied on the decision of Blaney J. in International Fishing Vessels Limited v. Minister for Marine [1989] I.R. 149. In that case Blaney J. had held that in taking a decision of crucial importance for the applicant the respondent was under a duty to act fairly and judicially and that the performance of such duties was subject to judicial review. The provision of reasons by the respondent was an essential pre-requisite to ensure fairness of procedures in the exercise by the applicant of such a right to judicial review. However, on appeal the Supreme Court held in H v. Director of Public Prosecutions that the decision of Blaney J. in International Fishing Vessels Limited was distinguishable by reason of the fact that the DPP’s discretion is reviewable only in certain circumstances, whereas the Minister for Fisheries’ discretion as to whether or not he should grant a fishing license was susceptible to challenge in accordance with general principles of administrative law and constitutional justice. In her judgment in H v. Director of Public Prosecutions, Denham J., having reviewed the judgments both of Finlay C.J. and of Walsh J. in State (McCormack) v. Curran & Ors (and having quoted, inter alia, the passages relied upon by the applicant in the present case), concluded (at p. 607):

      “The decision in International Fishing Vessels Ltd. v. The Minister for the Marine [1989] I.R. 149 is to be distinguished and is inapplicable. The prior decision of the Supreme Court in The State (McCormack) v. Curran on the reviewability of the Director's decisions sets out the appropriate test in law.”
Somewhat more expansively, O’Flaherty J. (with whom Egan J. agreed) stated (at pp. 602-603):
      International Fishing Vessels Ltd. v. The Minister for the Marine [1989] I.R. 149 is completely distinguishable because in that case the High Court Judge (Blayney J.) held that the Minister was under a duty to act fairly and judicially and that in the performance of such duties the provision of reasons was an essential pre-requisite to ensure fairness of procedures (the case had to do with applications for sea-fishing boat licences). An alternative distinguishing feature between the exercise by the Director of his discretion whether or not to prosecute and the International Fishing case is to be found in the following remarks of Blayney J. in that case at p. 155 of the report:-

        "It is common case that the Minister's decision is reviewable by the court . . . But in refusing to give his reasons for his decision the Minister places a serious obstacle in the way of the exercise of that right [of review]."

      Thus, Blayney J. starts from the premise that the decision of the Minister is open to full judicial review. However, it is clear from the decision in The State (McCormack) v. Curran [1987] I.L.R.M. 225 that the discretion of the Director of Public Prosecutions is reviewable only in certain circumstances as set out by Finlay C.J. at p. 237 of the report:-

        "If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court."

      It would seem then that as the duty to give reasons stems from a need to facilitate full judicial review, the limited intervention available in the context of the decisions of the Director obviates the necessity to disclose reasons.

      In deciding whether to bring or not to bring a prosecution, the Director is not settling any question or dispute or deciding rights or liabilities; he is simply making a decision on whether it is appropriate to initiate a prosecution. If he does, it is afterwards for the courts to decide whether a conviction may be sustained. The stance taken by the Director of Public Prosecutions is that he should not, in general, give reasons in any individual case as to why he has not brought a prosecution because if he does so in one case he must be expected to do so in all cases.

      I would uphold this position as being a correct one.”

70. Counsel for the applicant, while acknowledging that H v. Director of Public Prosecutions is potentially problematic for his client’s case, contends that in a number of cases that have been decided by the Supreme Court since the decision in H, such as Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260 and GE v Director of Public Prosecutions [2009] 1 I.R. 801 (both reviewed later in this judgment), this Court will find tacit support for the applicant’s view that it is incorrect to regard the Supreme Court as having set out, in State (McCormack) v. Curran & Ors, a comprehensive and exhaustive list of the grounds on which a decision of the DPP might be challenged . In particular, in Eviston, Keane C.J. remarked (at p. 294) that:
      “It is an important feature of the decisions in the State (McCormack) v. Curran [1987] I.L.R.M. 225 and H. v. Director of Public Prosecutions [1994] 2 I.R. 589 that, in each case, the court was concerned with (a) a decision not to prosecute in a particular case and (b) a challenge to the merits of that decision. The decisions, accordingly, go no further than saying that the courts will not interfere with the decision of the respondent not to prosecute where:-

        (a) no prima facie case of mala fides has been made out against the respondent;

        (b) there is no evidence from which it could be inferred that he has abdicated his functions or been improperly motivated; and

        (c) the facts of the case do not exclude the reasonable possibility of a proper and valid decision of the respondent not to prosecute the person concerned.


      They also make it clear that, in such circumstances, the respondent cannot be called upon to explain his decision or to give the reasons for it or the sources of the information upon which it is based.”
71. Counsel for the applicant acknowledges that there are valid considerations arising in the generality of cases which justify the protection afforded to the first respondent against giving reasons in normal prosecutorial situations. Such reasons include the possible drain on resources involved, the potential contravention of the presumption of innocence where an aggrieved complainant seeks an explanation why an individual was not prosecuted; the danger that accused persons would routinely seek to delay or halt a prosecution by seeking to quash the stated decision to prosecute and the concern that the important work of the DPP might be undermined by having to respond to meddlesome and misguided cranks, intent on corresponding with the DPP in relation to all aspects of her prosecutorial function. In the present case, the applicant contends that these ordinarily legitimate considerations either have no application at all, or have less relevance or force, in the applicant’s situation.

72. Counsel for the applicant has submitted that were the applicant to be provided with the reasons for the decision impugned in these proceedings, floodgates would not open and the skies would not fall. It has been urged upon this Court that the applicant comes within a tiny category of persons, affected by considerations relevant to s. 15 of the Act of 1965 as amended. The applicant’s situation is either unique or sufficiently unusual as to disengage the traditionally held view that prosecutors are immune from having to give reasons. Counsel for the applicant further contends that the applicant’s case is for these reasons distinguishable from the situations that obtained in State (McCormack) v. Curran & Ors and in H v. Director of Public Prosecutions, respectively.

73. It is contended that by reason of the facts and circumstances peculiar to his case as set out in his draft Statement Required to Ground Application for Judicial Review, and verified in the grounding affidavit of his solicitor, Ms. Egan, there are sufficient grounds to warrant an enquiry as to the basis for the Director’s decision.

74. Counsel for the applicant argues further, and in the alternative, that jurisprudential developments on the public law side – as evidenced in High Court decisions such as L.G.H. v. Minister for Justice, Equality and Law Reform [2009] IEHC 78 (unreported, High Court, Edwards J., 30th January, 2009); Hussain v. Minister for Justice Equality and Law Reform [2011] IEHC 171 (unreported, High Court, Hogan J., 24th May, 2011); and the Supreme Court’s decisions in Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260; GE v Director of Public Prosecutions [2009] 1 I.R. 801; Rawson v. Minister for Defence [2012] IESC 26 (unreported, Supreme Court, 1st of May, 2012) and Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 59 (unreported, Supreme Court, 6th of December, 2012) - now point to a broadening of the duty to give reasons, and an abandonment of the old common law position that there was no general obligation to give reasons for administrative decisions.

75. In Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260, the applicant was successful before the Supreme Court in challenging the DPP’s decision to proceed with the prosecution against her. A five judge Supreme Court found, notwithstanding its earlier judgments in State (McCormack) v. Curran & Ors and in H v. Director of Public Prosecutions, that the Constitution required the DPP to apply fair procedures in the exercise of his statutory functions in particular circumstances; that the decision of the DPP was prima facie reviewable by the High Court on the ground that fair procedures had not been observed (Murphy J. dissenting on this point); and that the DPP was in breach of fair procedures in activating the review procedure in circumstances where he had already informed the applicant that she would not be prosecuted and had not given her any intimation that this was a decision which could be subjected to review in accordance with the procedures in his office. Fair procedures required that the prosecution should be halted in the circumstances the applicant was granted an order of prohibition. In the course of delivering the leading judgment for the majority Keane C.J. stated:

      “Undoubtedly, the respondent remains subject to the Constitution and the law in the exercise of his functions and it has been made clear in decisions of this court that, while the nature of his role renders him immune to the judicial review process to a greater extent than is normally the case with quasi-judicial tribunals properly so described, he will be restrained by the courts where he acts otherwise than in accordance with the Constitution and the law.”
76. The applicant in the present case has also drawn to the Court’s attention the later Supreme Court case of GE v Director of Public Prosecutions [2009] 1 I.R. 801 wherein Kearns J., as he then was, giving judgment for the court, observed (at p. 12) that the Eviston decision was determined:
      “… on "fair procedures" grounds rather than on grounds of abuse of process, this court taking the view that there was a disposition evident on the part of the respondent to a particular prosecution which had the consequence, if not the intent, to avoid or circumvent due process. Clearly courts must intervene where circumstances of this nature arise.” (emphasis added)
77. The particular facts in GE were that the applicant had been charged with an offence contrary to s. 2(2) of the Criminal Law Amendment Act 1935. A professional officer in the office of the DPP (the respondent) had determined that a charge of rape should not be proffered and directed that the s. 2(2) matter be dealt with summarily, should the applicant decide to plead guilty. The applicant was put on his election in the District Court and opted for trial on indictment. A book of evidence was served and the case was adjourned from time to time pending the outcome of a challenge to the consistency with the Constitution of a related offence brought by a third party. This challenge was ultimately successful (see C.C. v. Ireland [2006] 4 I.R.1). The respondent directed that a nolle prosequi be entered in respect of the s. 2(2) charge as s. 2(2) contained a similar provision to that already declared inconsistent with the Constitution. The applicant was then re-arrested and charged with rape. The applicant sought to prohibit the respondent from prosecuting him on the charge of rape. He argued, inter alia, that the respondent was in breach of his own guidelines and that this breach constituted a breach of his entitlement to fair procedures.

78. The applicant in GE lost in the High Court and appealed to the Supreme Court. Giving judgment for the Supreme Court, Kearns J. had been at pains to point out that that particular case possessed none of the disquietening factors that were present in Eviston. The learned judge had stated (at para. 28 of his judgment):

      “…this is not a case where some mysterious or unexplained circumstance surrounds the decision of the respondent to substitute the charge laid against the applicant. No question of mala fides arises nor is there any basis for suggesting that the respondent adopted or deployed an improper policy in relation to the proposed prosecution. Nor is this a case in which a decision not to prosecute for any offence had been communicated to the applicant followed by a reversal of that decision. While a nolle prosequi was entered in the Circuit Criminal Court in respect of the charge of unlawful carnal knowledge, it has not been contended on behalf of the applicant that he believed or was led to believe that any prospect of a criminal prosecution arising out of the incident in Wexford was thereby at an end.”
Notwithstanding the absence of all of these factors, the Supreme Court reversed the High Court and granted an order of prohibition on fair procedures grounds preventing continuation of the prosecution. The ratio for the decision is contained at para. 36 of the judgment of Kearns J., where he stated:
      “I would emphasise that this is not a case where ongoing investigations have yielded up further information or evidence which justifies the laying of further charges in addition to a preliminary charge. That is quite a different situation and not one addressed by this judgment. Here a radically different prosecutorial decision was made in respect of precisely the same material which was once seen as appropriate only for a charge of attempted carnal knowledge. The applicant has lost his option of having his case dealt with in the District Court and faces the prospect of a trial far from his home environment with a possibility of a far greater sentence upon conviction. This is palpably unfair given that the applicant has done nothing to contribute to this dramatic change of circumstances. An alternative charge which did not possess these features would obviously not have given rise to such consequences.”
Counsel for the applicant in the present case submits that this is yet a further illustration of how the contours of possible challenge to a prosecutorial decision identified in the earlier cases of McCormack and H are not set in stone and of how they can, in an appropriate case, be extended.

79. Further, counsel for the applicant has placed much reliance on two recent judgments of the Supreme Court, namely Rawson v. Minister for Defence [2012] IESC 26 (unreported, Supreme Court, 1st of May, 2012) and Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 59 (unreported, Supreme Court, 6th of December, 2012) as representing the up to date jurisprudence of that Court on the duty to give reasons, which duty, he submits, applied, and continues to apply, to the first named respondent, both with respect to the decision not to prosecute the applicant taken on the 16th of March, 2011, and the alleged refusal to reconsider that decision, which refusal is said to be ongoing.

80. The case of Rawson v. Minister for Defence involved the appeal of a member of the Defence Forces who had failed in his internal appeal against a decision to discharge him from the Air Corps. Notwithstanding specific appeal submissions, he had received a curt one-line determination upholding the earlier decision at first instance without any reasons being provided. Clarke J., giving judgment for the Court (Fennelly J. and Mac Menamin J. concurring), prefaced his examination of the theory underlying the common law duty to give reasons as follows:

      “5.2 It is clear … that this case is not a "reasons" case as such. Rather it is a case where it is said that the record does not suggest that those involved in the decision making process applied their mind to the right question at all rather than failed to give adequate reasons for their answer to that question.”

      “6.3 … a party faced with a decision which affects their rights and obligations must be entitled to assess whether they have a basis for challenging the lawfulness of the decision in question. The courts have consistently held that it is an inherent part of the judicial review role of the courts that parties need to know enough about the process and the decision which affects them to be able to mount a challenge to that decision on the grounds of unlawfulness in an appropriate case” .

81. The learned judge then went on to consider how cases such as O'Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750 and The State (Sweeney) v. Minister for the Environment [1979] I.L.R.M. 35 support this principle and how recently in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701 it was found that a failure to supply sufficient reasons would affect the applicant's “constitutional right of access to the Courts to have the legality of an administrative decision judicially reviewed rendered either pointless or so circumscribed as to be unacceptably ineffective”. Clarke J. continued:
      "6.9 … While, as already pointed out, this is not a "reasons" case per se nonetheless the underlying rationale for the case law on the need to give a reasoned but not discursive ruling, while not strictly speaking applicable, seems to me to have a bearing on a case such as this where the issue is as to whether the decision maker addressed the correct question.

      6.10 … [I]f a person affected does not have any sufficient information as to the question which the decision maker actually addressed then it surely follows that that person's constitutional right of access to the courts to have the legality of the relevant administrative decision judicially reviewed is likely to be, in the words of Murray C.J. in Meadows, "rendered either pointless or so circumscribed as to be unacceptibly ineffective”.

82. Applying those principles to the facts of the Rawson case, Clarke J. continued:
      “7.2 While a judgment made in relation to a "reasons" case it seems to me that the logic of Clare v. Kenny (2009) 1 IR 22 is equally applicable to a challenge based on a contention that the correct question was not asked or inappropriate considerations were given. In that case MacMenamin J., at p.36, stated that:-

        ‘… a court in judicial review proceedings cannot act on what must be at best a hypothesis as to the possible rationale for the decision, particularly so in the context of the array of possible reasons, some of which would go beyond jurisdiction … The situation required a decision so that all the parties would be aware precisely of their positions. The reason or rationale for the decision as to jurisdiction unfortunately cannot be inferred from what was said by the respondent’ .

      7.3 There may, of course, be cases where it is possible to say with a great deal of comfort that the decision maker has approached the issue in a particular way. The materials before the court may make it clear as to what the approach of the decision maker was so that, even if not set out in express terms, there is only one real basis on which it might be considered that the decision maker approached the issues under consideration.”
83. Clarke J. found that the case then before the Court was not such a case as it was not known why Airman Rawson's appeal was rejected. He acknowledged that "[t]here may be cases where an analysis of the situation with which the decision-maker was presented bears only one reasonable interpretation", but he held that the case before them was not such a case. Ultimately while there might be circumstances in which a decision-maker could have concluded that Airman Rawson's defence was insufficient, there was insufficient evidence before the Supreme Court to meet the requirement that a court should be able to be satisfied, in the event of a challenge, that the decision-maker had asked the right question.

84. The applicant in the present case contends that this Court cannot be satisfied that the decision-maker in this instance, i.e. the DPP, asked the right question, and that appropriate regard was had to the implications which the impugned decision might have for the applicant’s ability to contest the extradition proceedings, in the light of s. 15 of the Extradition Act 1965 as originally enacted, and in the light of the amendment contained within the 2012 Act. Similarly, it is urged, this Court cannot be satisfied that the DPP had regard to the many potential, and allegedly adverse, consequences for the applicant if tried, convicted and sentenced in the United States. Counsel for the applicant submits that if it be the case that the DPP discounted the possibility that these extradition-related factors were within her function to consider, this should be made known to the Court and also to the applicant.

85. The applicant further relies upon the decision of the Supreme Court in Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 59 (unreported, Supreme Court, 6th of December, 2012).

86. The Mallak case concerned a declared refugee who had been refused a certificate of naturalisation in the Minister's absolute discretion without any reason being given. There was no appeal process and an application to the Office of the Information Commissioner proved fruitless as a decision was taken not to disclose whether records existed in relation to the Minister's decision. A request under the Data Protection Acts caused the release of a Garda report and a Garda request form but no reasons for the refusal were identifiable. In the High Court, Cooke J. who heard the substantive application found that, in light of the Minister's absolute discretion and following the judgment of Costello J. in Pok Sun Shum & Ors v. Ireland & Ors [1986] I.L.R.M. 593, there was no requirement for the Minister's decision to be accompanied by a statement of reasons. He pointed out that as there was no right of appeal, no reasons were required. Cooke J. also rejected arguments relating to Article 13 of the European Convention of Human Rights and Article 41 of the Charter of Fundamental Rights of the EU.

87. Cooke J.’s decision was appealed to the Supreme Court. Giving judgment in the Supreme Court, Fennelly J (Denham C.J., Murray J., O’Donnell J., and McKechnie J., concurring) noted that the duty to give reasons is closely related to the rules of natural justice. He held:

      "While our courts have extensively considered the adequacy of reasons when they have actually been given, there has been no principled consideration of the question whether a general obligation to furnish reasons exists at all or, if it does not, in what cases reasons should be given and why. There is a persistent view, as evidenced by the High Court judgment in the present case, that there is no general obligation at common law to give reasons for administrative decisions. There must be a close relationship between the process of giving prior notice and giving reasons after the event."
88. The Supreme Court found that just because the Minister had absolute discretion, it did not follow that he was not obliged to have reasons for his decisions. To so hold would be the very definition of an arbitary power. It was axiomatic that the rule of law requires all decision-makers to act fairly and rationally, meaning that they must not make decisions without reasons. The fact that a power is to be exercised in the Minister's absolute discretion may be relevant to the extent of the courts' power to review the decision, which might perhaps be limited to the question of examining the reasonableness of the decision, but that did not mean that a decision-maker was dispensed from observance of such requirements as the rules of natural and constitutional justice. Fennelly J. reiterated the importance of the constitutionally protected right of access to the courts to enforce one's legal rights. In exercising his absolute discretion, the Minister was required to act in accordance with law and in principle his decisions were open to review.

89. Fennelly J. went on to assess the extent of the Minister's obligation to give reasons for his decision to refuse a certificate of naturalisation by reference to (i) the developing general principles of judicial review and (ii) the particular statutory provision. With respect to (i), he held:

      “The general principles of natural and constitutional justice comprise a number of individual aspects of the protection of due process. The obligation to give fair notice and, possibly, to provide access to information or, in some cases, to have a hearing are intimately interrelated and the obligation to give reasons is sometimes merely one part of the process. The overarching principle is that persons affected by administrative decisions should have access to justice, that they should have the right to seek the protection of the courts in order to see that the rule of law has been observed, that fair procedures have been applied and that their rights are not unfairly infringed."
90. Fennelly J. examined the judgments of O'Higgins C. J. and O'Hanlon J. in State (Lynch) v. Cooney [1982] I.R. 337; Barron J. in State (Daly) v. Minister for Agriculture [1987] I.R. 165; Blayney J. in International Fishing Vessels Ltd. v. Minister for the Marine [1989] I.R. 149; Costello P. in Pok Sun Shum v. Ireland (cited above) and McCormack v. Garda Síochána Complaints Board [1997] 2 I.R. 489 and Finlay C. J. in The State (Creedon) v. Criminal Injuries Compensation Tribunal [1988] I.R. 51 and he held:
      “This body of cases demonstrates that, over a period approaching thirty years, our courts have recognised a significant range of circumstances in which a failure or refusal by a decision-maker to explain or give reasons for a decision may amount to a ground for quashing it. Costello J. attached importance, quite correctly, to the presence or absence from the statutory scheme of a right of appeal. The absence of a statement of reasons may render such a right nugatory.

      (…)

      In the present state of evolution of our law, it is not easy to conceive of a decision-maker being dispensed from giving an explanation either of the decision or of the decision-making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.

      Several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them.”

91. In the present leave application the applicant has submitted that the Supreme Court has restated the law on the giving of reasons, and that it’s judgments in cases of Meadows, Rawson and Mallak, respectively, reflect the abandonment of the view that there is no general obligation at common law to give reasons for administrative decisions and the widening of the category of cases in which the provision of reasons will be an essential element for the purposes of complying with basic fairness of procedures. It was further submitted that this line of jurisprudence clearly points in favour of the applicant in the present case being entitled to the reasons behind the DPP’s decision not to direct a prosecution of the applicant in this jurisdiction, and her ongoing refusal to revisit that decision.

92. The applicant has further submitted that if the test laid down in the cases of State (McCormack) v. Curran and H v. DPP applies at all to the applicant’s situation (the applicant is submitting that it does not), at a minimum, the current state of Supreme Court jurisprudence calls into question the previously held understanding that the correct approach is to ask whether the facts of the case exclude the reasonable possibility of a proper and valid decision having been made by the DPP. Counsel has submitted that instead, and in application of the Supreme Court’s recent jurisprudence, this Court should consider whether there is sufficient evidence to meet the requirement that the Court must be satisfied, in the event of a challenge, that the decision-maker has asked the right question and has had regard to the correct criteria. The applicant submits that he can advance an arguable case that in the absence of reasons the available evidence simply cannot be adjudged sufficient, and that in the circumstances he ought to be granted the leave that he seeks.

93. It should be further recorded that the applicant places some reliance on the DPP’s “Report on Prosecution Policy and the Giving of Reasons for Decisions” of the 22nd of October, 2008, as reflecting a supposed recognition by the first named respondent that the long maintained position of her office that she is not obliged to give reasons for her decisions is becoming increasingly untenable. Beyond noting that this submission was made, and that this Court has had regard to it, it is not proposed to review those submissions in any further detail in this judgment.

94. The applicant further contends that the first named respondent’s refusal to give reasons is unreasonable and that if the applicant is not furnished reasons for the decision not to direct a prosecution in this jurisdiction, he will be denied fair procedures and his rights will be significantly compromised. In support of this counsel for the applicant places particular reliance upon the following passage from the judgment of Denham J. (as she then was) in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701, where the learned judge stated (at para. 133):

      “Fundamental rights arise in some cases where decisions are being judicially reviewed. When the decision being reviewed involves fundamental rights and freedoms, the reviewing court should bear in mind the principles of the Constitution of Ireland, 1937, the European Convention on Human Rights Act 2003, and the rule of law, while applying the principles of judicial review. This includes analysing the reasonableness of a decision in light of fundamental constitutional principles. Where fundamental rights and freedoms are factors in a review, they are relevant in analysing the reasonableness of a decision. This is inherent in the test of whether a decision is reasonable.”
95. Finally, counsel for the applicant has also drawn the Court’s attention to relevant jurisprudence of the European Court of Human Rights, and in particular to the case of Jordan v United Kingdom (2003) 37 EHRR 52 which the applicant contends is authority for the proposition that a blanket refusal to give reasons may be incompatible with the ECHR, a matter acknowledged by then DPP in his Discussion Paper on Prosecution Policy on the Giving of Reasons for Decisions published in January, 2008.

The Respondent’s Submissions
96. Counsel for the respondents contends that the analysis of the role played by the DPP as presented by the applicant is somewhat simplistic. Leaving aside the constitutional pedigree of the functions performed under the Prosecution of Offences Act 1974 the most obvious distinction between the DPP and an administrative body or tribunal making a decision is that the decision of the DPP to initiate a prosecution or not does not affect any vested rights. On the contrary it is simply a decision to commence a process which will have the effect of determining those rights - i.e. a criminal prosecution.

97. Counsel for the respondents has made the observation that, necessarily, most litigation as against the DPP involves cases where a decision has been made to institute a prosecution rather a decision not to. Indeed, it is generally considered appropriate to seek to injunct the DPP from proceeding with a prosecution rather than to seek to quash the decision to prosecute. This is simply a reflection of the very special position of the DPP in relation to the institution of criminal proceedings. Counsel for the respondents submits that a corollary of this would seem to be that it will be much harder to invoke certiorari or mandamus as against the DPP in relation to a decision not to prosecute.

98. It was submitted that whilst the applicant correctly cites The State (McCormack) v. Curran as authority for the proposition that a decision of the DPP may under certain circumstances be reviewable there seems to be little by way of engagement with the result in that case. The conclusion reached by the Supreme Court in that case, the facts of which have much in common with the instant proceedings, is equally applicable:

      “In regard to the DPP I reject also the submission that he has only got a discretion as to whether to prosecute or not to prosecute in any particular case related exclusively to the probative value of the evidence laid before him. Again, I am satisfied that there are many other factors which may be appropriate and proper for him to take into consideration. I do not consider that it would be wise or helpful to seek to list them in any exclusive way. If, of course, it can be demonstrated that he reaches a decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I reject the contention again made on behalf of this respondent that his decisions were not as a matter of public policy ever reviewable by a court.

      In the instant case, however, I am satisfied that no prima facie case of mala fides has been made out against either of the respondents with regard to this matter. Secondly, I am satisfied that the facts appearing from the affidavit and documents do not exclude the reasonable possibility of a proper and valid decision by the DPP not to prosecute the appellant within this jurisdiction and that that being so he cannot be called upon to explain his decision or to give the reasons for it nor the sources of the information upon which it was based.”

The latter part of this excerpt specifically deals with the absence of any obligation on the part of the DPP to give reasons.

99. The Court’s attention was also drawn H. v. Director of Public Prosecutions [1994] 2 I.R. 589 where counsel for the respondents relies particularly upon the following passage from the judgment of O'Flaherty J., who stated:

      "In deciding whether to bring or not to bring a prosecution, the Director is not settling any question or dispute or deciding rights or liabilities; he is simply making a decision on whether it is appropriate to initiate a prosecution. If he does, it is afterwards for the courts to decide whether a conviction may be sustained. The stance taken by the Director of Public Prosecutions is that he should not, in general, give reasons in any individual case as to why he has not brought a prosecution because if he does so in one case he must be expected to do so in all cases. I would uphold this position as being a correct one."
100. Counsel for the respondents also relies upon N.S. v. Anderson & Ors [2008] 3 IR 417 and Siritanu v. DPP [2006] IEHC 26 (unreported, High Court, Dunne J., 2nd February, 2006). Both of these cases concerned individuals who had been charged with offences relating to possession of false travel documents. They contended that Article 31 of the UN Convention Relating to the Status of Refugees, 1951, to which the State was a signatory, gave rise to a legitimate expectation that those claiming refugee status would not be prosecuted for such offences. On both occasions the High Court rejected such arguments noting the special position of the DPP in relation to the decision whether or not to prosecute. It is suggested by counsel for the respondents that, in effect, the courts concluded that it would only be permissible to injunct such proceedings where it was shown that there was an abuse of process such as to give rise to the real risk of an unfair trial.

101. Counsel for the respondents also relies upon what he characterises as a very significant line of authority relating specifically to the power of the DPP to issue certificates directing trial before the Special Criminal Court. In all of these cases without exception the courts have held that there is no obligation on the DPP to provide reasons for such a decision: Re MacCurtain [1941] I.R. 83; State (Bollard) v. Governor of Portlaoise Prison (unreported, High Court, 4th December, 1972); Savage v. Director of Public Prosecutions [1982] I.L.R.M. 385; Kavanagh v. Ireland [1996] 1 I.R. 321.

102. Further, in Kavanagh v. Ireland [1996] 1 I.R. 321, it was said (per Barrington J. at p.360):

      “This judgment has attempted to stress that the primary control over the powers of the Government under Article 38, s. 3 of the Constitution and under Part V of the Offences Against the State Act, 1939, is a political control. This means that normally the proclamations of the Government under s. 35, sub-ss. 2 and 4 of the Offences Against the State Act, 1939, or the certificates or directions of the Director of Public Prosecutions under s. 47 of the same Act will not be subject to judicial review in the absence of evidence of mala fides.”
103. Similarly in Byrne v. Government of Ireland (Unreported, Supreme Court, 7th December, 1999), Hamilton C.J. stated:
      “In the absence of a prima facie case of mala fides in the issue by the Director of Public Prosecutions of the certificate, he cannot be called upon to explain his decision or give the reasons for it nor the sources of the information upon which it was based (vide State (McCormack) v. Curran [1987] I.L.R.M. at page 237).”
104. Counsel for the respondents submits that it is of particular note that, unlike a decision to prosecute or not prosecute, a decision by the DPP to send somebody for trial before the Special Criminal Court is not merely a decision to institute proceedings. Rather it is a decision to deprive a person of the benefit of a constitutionally protected right - the right to trial by jury. Nonetheless the courts have explicitly and persistently held that there is no obligation to provide reasons for such a decision.

105. The Court has also been referred to Director of Public Prosecutions v Monaghan [2007] IEHC 92 (unreported, High Court, Charleton J., 14th March, 2007) wherein Charleton J. conducted a review of some of the authorities dealing with the special position of the DPP. 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] I.E.S.C. 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.”
106. It was submitted that the statement of the Supreme Court in Dunphy [a minor] v. Director of Public Prosecutions [2005] IESC 75 (unreported, Supreme Court, Hardiman J., 2nd November, 2005) in relation to both the special protection of the DPP and how that related to the obligation to give reasons was entirely unambiguous. In that case the applicant had sought discovery of documentation to explain why she had been prosecuted. Hardiman J. stated:
      “In a case where this special protection is relied upon there is a special evidential standard for the applicant as described in the cases cited above. This onus must be discharged by any person seeking relief of the sort the applicant seeks here. It is of course true that she does not have to discharge that onus at this stage of the litigation but the existence of this unusual onus is important to the resolution of the present issue. The granting of discovery, even if the applicant failed to get inspection, would or might undermine the special protection available to the Director. His entitlement to that protection is beyond argument, certainly in the Court as at present constituted. In order to validate it, the applicant must show at least suggestive evidence of an impropriety. This has not occurred.”
107. It was further submitted that the very clear policy of non-interference by the courts with a decision of the DPP is also apparent from much more recent authority. In Carlin v. Director of Public Prosecutions [2010] 3 I.R. 547 the special position of the DPP was again noted by Denham C.J.:
      “The respondent 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.”
108. The significance of this special position was elaborated on by Fennelly J. in the same case:
      “Prior to considering this question of observance of fair procedures, it is appropriate to recall the nature and extent of the powers of the respondent to decide, respectively, to institute a prosecution, to decide not to prosecute and to review and, where appropriate, reverse any earlier decision. The relevant case law has seen the development of clear criteria. Keane C.J., most notably, in his majority judgment in Eviston v. Director of Public Prosecutions [2002] 3 I.R. 260, comprehensively examined and explained the key elements. For the purposes of the present appeal it is sufficient to recall the essence of that judgment. Firstly, ‘both the decision to initiate a prosecution and the subsequent conduct of the prosecution are functions exclusively assigned … to the respondent under the Constitution and the relevant statutory provisions’ (p. 290). Secondly, in the absence of mala fide, evidence that the respondent had abdicated his functions or improper motivation, the respondent ‘cannot be called upon to explain his decision or to give the reasons for it or the sources of the information upon which it is based’ (p. 294). Thirdly, the respondent is entitled to review and to reverse his own earlier decision not to prosecute even in the absence of new evidence and even following the making of representations by the complainant or his family.”
109. Insofar as the respondent suggests that there is an arguable case to be made that the DPP is obliged to give reasons on occasion there appears to be some considerable reliance on the fact that Barron J. upheld such a proposition at first instance in H v. DPP [1994] 2 I.L.R.M. 285. Counsel for the respondents makes two observations in regard to that. First, he submits that subsequent to his elevation to the Supreme Court, Barron J. was of the same mind as the rest of the Supreme Court on the issue as is apparent from his judgment in Ward v. Special Criminal Court and Ors (unreported, Supreme Court, Barron J., 18th of December, 1997) which concerned an attempt to judicially review a certificate sending the applicant for trial in the non-jury court. The following represents the entirety of his judgment in the case.
      “I agree that this appeal should be dismissed. It does not give rise to any questions of law which have not already been decided by this Court.

      Counsel for the applicant accepts that this is so in relation to the challenge to the bringing into and continued operation of Part V of the Offences against the State Act, 1939. Nevertheless, he still impugns the power of the Director of Public Prosecutions to certify that his trial should be before the Special Criminal Court; and submits that he is being discriminated against in relation to others in comparable circumstances in respect of which no such certificate has been given. In doing so, he also made it clear that the applicant had also appealed as a necessary step towards bringing the matter before a different forum.

      These two issues have already been decided by this Court. The first in In re the Criminal Law (Jurisdiction) Bill 1975, 1977 I.R. 129 which approved the decision of the former Supreme Court in In re MacCurtain 1941 I.R. 83 . The latter was determined in The People (Director of Public Prosecutions) v. Quilligan (No. 3) 1993 2 I.R. 305 specifically referred to by Laffoy J. in Kavanagh v. The Government of Ireland 1996 1 I.R. 321 at p. 345.”

Secondly, the suggestion that so many others have tried and failed in the same cause cannot amount to a basis for considering that there is an arguable case. Indeed, it represents cogent authority for the converse position.

110. Counsel for the respondents submitted that it is beyond argument that the position of the DPP has always been, and continues to be, regarded as being special and, save in very particular circumstances, her decisions are beyond the remit of the courts to review. Moreover, the courts have consistently and repeatedly made clear that the DPP cannot be obliged to give reasons for her decisions. Counsel for the respondents has sought to characterise the authority for this proposition as overwhelming.

111. It was submitted on behalf of the respondents that the height of any case that might be advanced on the part of the applicant is to suggest that there has been a shift in the law relating to the obligation to give reasons more generally. Whilst that may be true so far as ordinary administrative bodies are concerned, counsel for the respondents submits that it is fanciful to suppose that the courts are now required to jettison an entire generation of authority and require the DPP to give reasons for her decision not to prosecute in this and future cases.

112. Counsel for the respondents contends that it is abundantly clear that the reasoning of the Supreme Court in Rawson v. Minister for Defence [2012] IESC 26 (unreported, Supreme Court, 1st of May, 2012) was rooted in the nature of the decision under review. Clarke J. stated (at para. 6.1):

      “It is trite law to say that judicial review is concerned with the lawfulness of decision making in the public field. Where a decision is made by a public person or body which has the force of law and which affects the rights and obligations of an individual then it hardly needs to be said that the courts have jurisdiction to consider whether the decision concerned is lawful. If it were not so then it is hard to see how such a situation would be consistent with the rule of law. For if decisions materially affecting the rights and obligations of individuals could be made in an unlawful fashion the rule of law would not be upheld.”
113. The respondents contend, for the reasons already rehearsed, a decision of the DPP either to prosecute or not to prosecute does not affect the rights and obligations of an individual. Moreover, even insofar as an accused person might be heard to argue that his rights were affected where a decision is made to institute a prosecution it is impossible to see how a person who has been the subject of a decision not to prosecute can invoke any affected right. Taking it at its height, the applicant’s case is based upon a claimed right which, if it arises at all, arises under a statutory provision which came into force over a year after the decision was made. Counsel for the respondents suggests that H.H. v. Director of Public Prosecutions [2012] IEHC 41 (unreported, High Court, Peart J, 31st January 2012) is relevant in that regard. In the H.H. case, the applicant made a complaint of rape to the gardaí and the DPP directed that no prosecution be brought. The applicant sought, inter alia, an order of certiorari to quash the decision not to prosecute and an order of mandamus to compell the DPP to give reasons for the decision. Peart J. refused leave to apply for judicial review, holding that the applicant had failed to establish an arguable case. In refusing leave, Peart J. considered the applicant’s submission that the Supreme Court decision in Meadows v Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701 indicated a movement away from the absolutist position whereby, traditionally, a court might be considered to be constrained in the manner in which it could review certain decisions, such as those of the DPP. Peart J., however, considered that it was important to highlight the fact that fundamental constitutional rights were at issue in Meadows and the cases that followed it, whereas no constitutional or convention right of the applicant was affected by the DPP’s decision not to prosecute. The applicant had no right, either under the Constitution of Ireland, or under the European Convention on Human Rights, to be prosecuted.

114. The attention of the Court was further drawn to the judgment of Fennelly J. in Mallak v. Minister for Justice where the learned Supreme Court judge sets out the principles underpinning the Supreme Court’s decision in that case. Fennelly J stated:

      “52. The general principles of natural and constitutional justice comprise a number of individual aspects of the protection of due process. The obligation to give fair notice and, possibly, to provide access to information or, in some cases, to have a hearing are intimately interrelated and the obligation to give reasons is sometimes merely one part of the process. The overarching principle is that persons affected by administrative decisions should have access to justice, that they should have the right to seek the protection of the courts in order to see that the rule of law has been observed, that fair procedures have been applied and that their rights are not unfairly infringed.”
115. Counsel for the respondents submits that it is notable that Fennelly J. regarded the obligation to give reasons as being interrelated with rights to fair notice, access to information and the right to a hearing. None of these rights actually arise or exist in the context of a decision by the DPP either to initiate, or not to initiate, a prosecution. They only arise as an aspect of an accused’s rights under Article 38 of the Constitution after a decision to prosecute has been taken.

116. Finally, counsel for the respondents submits that in so far as the applicant cites a number of decisions of the European Court of Human Rights in support of the submission that the DPP is obliged to give reasons, it is evident from even the most cursory examination of these cases that they relate, not to a general obligation on a prosecutor to explain a prosecutorial decision, but rather an obligation on the part of the state to carry out an effective and independent investigation where a person is killed as a result of state action. As such these authorities are entirely irrelevant. The only circumstances in which the European Court of Human Rights has ever held that there exists an obligation to provide reasons is where an Article 6 right is engaged i.e. in the course of court or administrative proceedings.

117. In the circumstances, counsel for the respondents contends that the applicant has failed to demonstrate, even on an arguable basis, that he is entitled to receive reasons for the first named respondent’s decision not to prosecute him, and that leave to apply for the various reliefs sought in connection with an alleged failure or failures by that party to give such reasons should be refused.

Inappropriate Forum as a Potential Bar to Extradition


The Applicant’s Submissions
118. The submissions made on behalf of the applicant under this heading largely consisted of a reiteration of the matters pleaded at paragraphs 20 to 23 inclusive of his draft “Statement Required to Ground Application for Judicial Review”, set out earlier in this judgment at paragraph 28 above.

119. The evidential support offered to underpin these submissions consists primarily of the following matters deposed to by Ms. Egan at paragraphs 16 to 26 inclusive of her grounding affidavit sworn on the 5th of September, 2013:

      “16.I beg to refer to the Applicant’s Points of Objection in respect of the said extradition proceedings when produced, upon which pinned together and marked with the letters ‘CE3’ I have signed my name prior to the swearing hereof. As is apparent therefrom, the applicant asserts that:

        14.‘if...the correct interpretation of s.15 of the 1965 Act as amended precludes this Court from considering the forum issue, the Respondent reserves the right to argue that the said section is unconstitutional and repugnant to the Constitution...
        17. ‘In the interests of justice, the prosecution of the Respondent ought to take place in this jurisdiction. His extradition is barred as a result. The conduct alleged against the Respondent amounts to the planning from Ireland of a terrorist campaign aimed at European targets, with this country as an intended base of operations. It would be inappropriate to leave his prosecution to another country with a far lesser connection to the alleged offences. To subject the Respondent to a trial process, a sentencing regime and penal conditions which are so different to and more onerous than our own, when he could be prosecuted here without significant prejudice to this State or to the Requesting State, would amount to insufficient protection of the Respondent’s constitutional and Convention rights, including his rights to due process, to bodily integrity and protection from inhuman and degrading treatment.
      17. I say that some of the aspects of the alleged trial process, sentencing regime and penal conditions are then set out, as follows:

        24...The Irish State gathered material through unconstitutional means and forwarded this material to the Requesting State in order to facilitate the extradition and prosecution of the Respondent. The Irish State and the Requesting State should be denied the benefit of this unconstitutionality. The extradition of the Respondent should be barred as a result...

        27...It is alleged that the Respondent was engaged, inter alia, in a conspiracy to murder Lars Vilks. There is no onus on the Requesting State, nor any intention on their part, to prove this allegation against the Respondent at trial. Nevertheless, it can be taken into account when applying an ‘enhanced sentence’ in respect of the offences charged. Such a course of action breaches the rule of specialty...

        30... If convicted, the Respondent could be placed in a ‘Supermax’ prison for a period of years, in complete solitary confinement under a regime of ‘special administrative measures’. In the alternative, the Respondent could be held in a ‘communications management unit’ in a Federal prison, where his right to communicate would be severely and disproportionately restricted. Conditions in such institutions would also breach the Respondent’s right to respect for his religion as guaranteed by Article 44.2.1 of the Constitution and Article 9 of the Convention by reason, inter alia, of the unjustified restrictions on Group prayer and the unnecessary and disproportionately-frequent use of strip searches...


      18. I say that it might be suggested that the said arguments can be raised in isolation from an argument based on forum, and that if sufficient breach of a constitutional or an article 3 Convention right is made out it, the extradition of the Applicant would be prohibited in any event. However, the European Court of Human Rights in the seminal extradition case of Soering v. the United Kingdom, 98 ILR 270,has stated that considerations in favour of extradition:

        “must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases’.

      19. I say that if a prohibition on extradition based on human rights considerations resulted in immunity from prosecution for a serious offence, this would be considered by the Court in assessing whether it is proportionate to extradite the individual. I say that similarly, in the recent case of Babar Ahmad and Others v United Kingdom 12/04/2012 Times Law Reports, where arguments relating to prison conditions at ADX Colorado were also raised, the Court, in refusing relief to the Applicants, said at paragraph 171 that:

        ‘This Court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States... This being so, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case.’

      20. I say that where the person whose extradition is sought can instead be prosecuted in the jurisdiction of the requested State, the same considerations should not apply. In such circumstances, the Court could balance all competing considerations and conclude that the extradition was barred having regard to potential human rights breaches and to the fact that the prosecution could instead take place in this jurisdiction.

      21. I say that it would appear, however, that having regard to the said S.27 of the 2012 Act, the Applicant cannot raise arguments relating to the appropriate forum to bring the prosecution; and cannot claim that this should be a decisive factor in assessing whether to refuse extradition based on human rights considerations. I say that Edwards J has so held in a recent discovery application brought by the Applicant, in the context of the already issued extradition proceedings:


        ‘...there is a fundamental difference between proceedings arising under the European Arrest Warrant Act, 2003, and what might be described as 'traditional extradition proceedings'. In the European Arrest Warrant context both the issuance and execution of relevant warrants and the surrendering or non surrendering, as the case might be, of a respondent are functions that are exclusive to and entirely reserved to relevant judicial authorities. That is not the case in the traditional extradition context. Surrender is a matter for the Minister. That is not to say that the Court has no role. The Court does have a role but it is confined within the parameters of the legislation. However, in so far as reliance is placed on section 15 of the Act of 1965, as now amended, there seems to be a failure to appreciate that distinction.

        Section 15(2)says:

        "Extradition may be refused by..."

        and I emphasise:

        "...'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."

        In so far as any issue that this Court might be invited to consider is concerned, I have to respect the separation of powers. It is not the case, manifestly not the case, that I may refuse extradition under s. 15(2). That is a matter for the Minister. No reliance can be placed on s. 15(2) before this Court because to do so would be to ask this Court to, in a sense, trespass on a function that is reserved to the Minister. Insofar as material is sought in this discovery motion relevant to that it is not something that could be of any assistance to the issues in the proceedings that are before the Court. It is potentially relevant to an issue that the Minister might ultimately have to consider, but at the moment that is not something that falls for consideration.’


      22. I beg to refer to a copy of the said ex tempore judgment when produced, upon which pinned together and marked with the letters ‘CE 4’ I have signed my name prior to the swearing hereof. I say that the said judgment is under appeal and I beg to refer to a copy of the Grounds of Appeal when produced, upon which pinned together and marked with the letters ‘CE5’, I have signed my name prior to the swearing hereof.

      23. I say that following a number of high-profile and controversial extradition cases in the neighbouring jurisdiction, where the United States had successfully sought the extradition of individuals for offences committed while the person was physically present in the United Kingdom, legislation was introduced in 2012 to permit the Court hearing the extradition case to consider whether, in the interests of justice, the extradition of a person ought to be barred having regard to issues of forum. I beg to refer to a copy of Schedule 20 of the Crime and Courts Act 2012 when produced, upon which pinned together and marked with the letters ‘CE6’ I have signed my name prior to the swearing hereof.

      24. I say that there are many considerations which would be considered relevant in the Applicant’s case, if a regime similar to that in the UK was in place in this jurisdiction. For example, the entirety of the Applicant’s alleged offending took place in Ireland; the place where most of the harm resulting from the alleged offence occurred was in this jurisdiction and the main alleged victim is the Irish State itself; the Applicant is an Irish citizen and has never set foot in the Requesting State; the evidence necessary to prove the offence could be made available in this jurisdiction and some of it was generated here by an Garda Síochána.

      25. I say, however, that the Applicant cannot litigate any of these matters within the said extradition proceedings. I say that while it is acknowledged that the Applicant would still not be guaranteed success if he could raise such matters in furtherance of a forum argument, a considerable injustice arises from the fact that such issues cannot even be litigated.

      26. I say that I am instructed by the Applicant that, if the First Named Respondent undertook to reconsider its decision not to prosecute the Applicant, he would formally undertake not to challenge any fresh decision to prosecute him by way of Judicial Review. I further say that I am instructed by the Applicant that he would formally consent to any evidence of US witnesses being given by way of video-link, should the need arise. I say that due to time constraints, it has not been possible to procure an affidavit from the Applicant in respect of the herein proceedings, but that this will be done in early course.”

120. The essence of the applicant’s claim under this heading is really linked to the claim under the two previous headings. It is contended on his behalf that in deciding not to further prosecute the applicant in March, 2011 the DPP, knowing that the United States was interested in seeing the applicant prosecuted and that that country might therefore seek his extradition, was obliged to consider the question of the most appropriate forum in which the applicant should be prosecuted. It is contended that the obligation on the DPP to do so, which it is acknowledged is not a statutory one, arises as an aspect the DPP’s obligation to act reasonably and judicially and to afford the applicant the benefit of fair procedures. Moreover, the applicant contends that this Court needs to know the reasons for the applicant’s decision because without knowing these it cannot be sure that the DPP asked the right questions in the making of the decision in question; and more specifically that the forum issue was in fact considered by the DPP and that the implications for the applicant of prosecution in each of the fora under consideration were taken into account. Further, and in the alternative, it is contended that even if there was no obligation on the DPP to consider the forum issue in March, 2011, an obligation to reconsider the decision not to prosecute, and to take the forum issue into account in that reconsideration, necessarily arises now in circumstances where a request for the applicant’s extradition has now been received, particularly having regard to the amendment to s. 15 of the Act of 1965 effected by s. 27 of the Act of 2012.

The Respondent’s Submissions
121. Counsel for the respondents has submitted that there is not now, and never has been, a requirement on the DPP to consider what the applicant characterises as “the forum issue.” Moreover, Irish law does create a forum bar capable of being invoked before a Court by a proposed extraditee. He submits that the purpose of s. 15 of the Act of 1965 is relatively straightforward. It is designed to allow the State a right of first refusal on any prosecution where the offences occurred within the state and the suspected offender is wanted elsewhere for extradition. The section does not impose additional decision making powers on the DPP nor impose separate and distinct criteria in respect of a decision to prosecute. Rather it simply provides that a decision to prosecute or not may have, or come to have, certain consequences so far as an application for extradition for the same offences is concerned.

122. It was further submitted by counsel for the respondents that there seems to be a fundamental misunderstanding as to the nature of s. 15 on the part of the applicant who continues to submit:

      Undoubtedly, the decision not to prosecute makes extradition an altogether more likely outcome, as it facilities the invocation of s.27 of the 2012 Act. Moreover, the decision not to prosecute leaves to the Court and to the Minister the unappealing option of refusing to extradite and thereby, to grant immunity to an individual suspected of committing offences of the highest order of gravity.
123. In counsel for the respondents’ submission, the applicant ignores the fact that where a decision is made by the DPP to prosecute for the same offences as those comprising the extradition request that this amounts to a total bar on surrender under Section 15(1)(b). To suggest that the making of such a decision puts the Minister and the Court in an invidious position in that it is a choice between extradition and immunity is to fail to grasp the respective roles of the parties.

124. The applicant goes on to make the point that there would appear to be sufficient evidence to prosecute him in this jurisdiction on the supposition that the witnesses are called by way of video link. In effect the applicant says that, because there is evidence against him in the U.S., he should be prosecuted here and he will not stand in the way of whatever mutual assistance procedures are needed to make that a reality. However, counsel for the respondents submits, such a submission fails to engage with the purpose of s.15. Were the provision to be interpreted as giving rise to a right to be prosecuted here on demand then it would effectively introduce a territoriality/extraterritoriality exception into the 1965 Act. Given that the whole purpose of the amendment of s. 15 was to excise the pre-existing territoriality exception such an interpretation would be entirely self defeating.

125. Counsel for the respondents has further submitted that given that extradition is not permissible for investigative purposes it is invariably the case that the requesting state will be in possession of sufficient evidence to prosecute the person sought. If the argument made by the respondent is correct, namely the existence of such evidence would allow his prosecution here if video link evidence was deployed, then it would seem to follow that in virtually every case where it was possible to prosecute respondent in the requesting state it would also be possible to prosecute them here by means of such procedures. In other words the mere possibility of exercise of domestic jurisdiction in respect of such an offence would, of itself, amount to a bar. That is clearly not the purpose nor function of the section.

126. The Court is invited to compare the Irish position with that in the United Kingdom where the Extradition Act, 2003 (hereinafter “the UK Act of 2003”) was amended by the Police and Justice Act, 2006 (hereinafter “the UK Act of 2006”), to include, inter alia, two new provisions: s. 19B and s. 83A. The two sections are the same, save that s. 19B is concerned with extradition to category 1 territories (i.e. EU member states) and s. 83A is concerned with category 2 territories (e.g. the USA). Neither section was ever brought into force. However, under both provisions extradition could be refused if an accused person was requested for conduct, a significant part of which occurred in the UK, and it was not in the interests of justice for the person to be tried in the requesting territory. Although never brought into force, the amendments made by the UK Act of 2006 provided that the issue of forum would be determined by a judge who was obliged to take into account whether the relevant prosecution authorities in the UK had decided not take proceedings against the person in respect of the conduct in question. In this regard s. 83A of the UK Act of 2003, as inserted by the combined effect of s. 42 and Schedule 13 to the UK Act of 2006, provided as follows:

      (1) A person’s extradition to a category 2 territory (“the requesting territory”) is barred by reason of forum if (and only if) it appears that-

        (a) A significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and

        (b) In view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.


      (2) For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.

      (3) ...

127. Counsel for the respondents points out that the Government of the UK commissioned a review of the country’s extradition arrangements in September, 2010 to consider a number of issues, including whether or not s. 83A should be brought into force. The “Baker Review” was presented to the Home Secretary in September, 2011, and the government published its response thereto in October, 2012. The result was section 50 of the Crime and Courts Act, 2013 (“the UK Act of 2013”), and Schedule 20 thereto.

128. Section 50 of the UK Act of 2013, and Schedule 20 thereto, amended the UK Act of 2003 by the substitution of, inter alia, a new s. 19B and 83A. In terms of category 2 countries (i.e. the USA), the relevant provisions are s. 83A et seq. All relevant provisions became law on the 14th October, 2013, pursuant to UK Statutory Instrument No 2349/13.

129. Counsel for the respondents has submitted that the significance of the changes made by the UK Act of 2013 may be summarised as follows: extradition can be barred by reason of forum if the judge decides that: firstly, a substantial measure of the relevant activity was performed in the UK; and secondly, having regard to a list of specified matters, it would not be in the interests of justice for the extradition to take place. S. 83A(3) outlines the specified matters relating to the interests of justice: (i) where most of the harm or loss occurred; (ii) the interest of any victim; (iii) any belief of a UK prosecutor that the UK is not the most appropriate place to prosecute the person; (iv) whether evidence needed to prosecute the person is or could be made available in the UK; (v) any delay that may result in proceeding in one country rather than another; (vi) the desirability and practicality of all prosecutions relating to the offence taking place in one place; and (vii) the person’s connections with the UK.

130. Counsel for the respondents further points out that a significant change has been brought about by subss. 83B-83D of the UK Act of 2003 (as inserted by Schedule 20 of the UK Act of 2013 )(and correspondingly by subss. 19C-E in terms of EU Member States). The change is that extradition cannot be barred on forum grounds if a designated prosecutor issues a certificate to the effect that he or she has: firstly, considered the offences for which the person could be prosecuted in the UK; secondly, decided that there are one or more such offences which correspond to the extradition offence; and thirdly, decided that either the person should not be prosecuted in the UK for a corresponding offence because the prosecutor believes that there is insufficient admissible evidence or it would not be in the public interest, or believes that the person should not be prosecuted in the UK because of concerns about disclosure of sensitive material. A designated prosecutor may apply for an adjournment in the proceedings in order to consider whether to issue such a certificate. The certificate can be challenged, but only as part of an appeal to the High Court under the UK Act of 2003. The High Court must apply the procedures and principles of Judicial Review when reviewing a certificate. If the High Court quashes a certificate, it must then consider the issue of forum.

131. In conclusion, counsel for the respondents submits that to the extent that UK law provides for the taking into account by prosecuting authorities of the issue of forum under UK law, that entitlement is both limited and highly circumscribed. Moreover, the UK has adopted its present system entirely as a matter of sovereign choice. However, there is no generally recognised requirement, or imperative, in public international law or otherwise that a prosecutor ought to have regard to the issue of forum, when considering whether or not to prosecute a party domestically in a case in which there also has been, or possibly may be, a request from another state for the extradition of that party in connection with the same matter. It is not a requirement mandated by the need to afford fair procedures to the party concerned. Some states have provided by law for forum to be considered by their prosecuting authorities, while others have not. Some states have provided by law for a forum bar that may be invoked before a court, while others have not. It is a matter of choice for every sovereign state, but is not something that is required, or in the specific case of Ireland something to be implied on account of a provision of Bunreacht na hÉireann, or the fact that Ireland has signed and ratified the European Convention on Human Rights. Simply put, Irish law neither provides for mandatory consideration of forum issues by the DPP, nor for the availability of a forum bar capable of being invoked before an Irish court. It was submitted that in the circumstances the applicant has not put forward an arguable case under this heading either.

Alleged Unconstitutionality of S. 27 of the Act of 2012


Preliminary Procedural Issue
132. The respondents have raised an initial procedural objection to this aspect of the applicant’s claim, in addition to disputing the substance of it. It is contended that the applicant should have commenced separate proceedings by plenary summons seeking a declaration of unconstitutionality in respect of the impugned provision of the Act of 2012, and that the present proceedings constitute an inappropriate vehicle within which to seek to have the relevant statutory provision condemned as unconstitutional. Counsel for the respondents has referred to various authorities in support of this preliminary objection, including the Supreme Court’s decision in this applicant’s earlier case - Damache v Director of Public Prosecutions and others [2012] 2 I.L.R.M. 153. In that case the Supreme Court deprecated the fact that “the proceedings were not brought correctly, by way of plenary proceedings”, but ultimately decided, exceptionally, to proceed to determine the issue “to minimise delay and cost”.

133. In the present case the respondents, without prejudice to their right to make the case that leave to apply for judicial review under this heading should in any event be refused on the merits, ask this Court not to entertain the application for leave to apply for judicial review at all under this heading in circumstances where, notwithstanding that he has been put on express notice by the Supreme Court of the correct procedure to be adopted in a constitutional challenge, the applicant has for a second time adopted the incorrect procedure. For his part, counsel for the applicant acknowledges that the Supreme Court criticised the fact that in the applicant’s earlier constitutional challenge he had not proceeded by plenary summons. However, he contends that the Rules of the Superior Courts do not prohibit the framing of a constitutional challenge within the context of judicial review proceedings, and he points to the fact that the Supreme Court did in fact deal with that challenge at the end of the day. In the circumstances he asks this Court to allow him to proceed, and to deal with the merits of his contention.


Interim Ruling
134. The Court has decided, in recognition of the principle that it should arrive at constitutional issues last, to defer full consideration of the issues, both procedural and, if necessary, substantive, in relation to the proposed constitutional challenge to s. 27 of the Act of 2012 until after it has rendered a decision in respect of the other aspects of the applicant’s application for leave to apply for judicial review.

135. However, on the procedural question, although it has not arrived at any final view, and is open to receiving further argument on both sides, it may be of assistance to remark that the fact that an incorrect procedure was deliberately adopted on a second occasion, ostensibly in clear defiance of a flag run up the mast by the Supreme Court in earlier proceedings to which the applicant in this case was himself a party, is to say the least of it troubling from this Court’s perspective.

The Court’s Decisions on Issues other than the Constitutional Challenge.


Alleged Unreasonable Decision Not to Prosecute the Applicant
136. The Court agrees with counsel for the respondents that the applicant’s case is unstateable in so far as the decision not to prosecute made on the 16th of March, 2011, is concerned. The decision was entirely one that benefited the applicant. It was decided not to prosecute him further in this jurisdiction. Moreover, having regard to the law as it was at the time, there was no possibility that he could then be extradited. To suggest that the DPP ought to have had regard to what the applicant characterises as “forum issues” at that time is an untenable proposition in circumstances where this state had received no request for the applicant’s extradition, and in circumstances where even if such a request had been received it could not possibly have been acceded to on the law as it stood.

137. Further it is fanciful, and wholly untenable, for the applicant to suggest that the DPP should have adverted to the possibility that s. 15 of the Act of 1965 might be amended in the future. The evidence is that the decision not to further prosecute the applicant was made several months before the Bill containing the relevant proposed amendment was initiated. The DPP was perfectly entitled to proceed on the basis of the law as it was at the time, and it was in no way unreasonable to do so.

138. In circumstances where the decision of the 16th of March, 2011, was entirely to the applicant’s advantage, he has no good grounds to complain about it. In so far as the applicant contends that there has been a further unreasonable decision by the DPP, namely an alleged refusal by the DPP, in response to an alleged request to her on behalf of the applicant, to reconsider whether or not to prosecute the applicant in this jurisdiction for the offences that are the subject matter of the current extradition request, the Court agrees with counsel for the respondents that the premise underlying the complaint has not been established. The complaint is predicated upon this Court’s willingness to accept that the DPP was in fact asked to reconsider the decision not to further prosecute the applicant at some point between the 16th of March, 2011, and the opening of the hearing in these proceedings, and has refused to accede to that request. In the Court’s view counsel for the respondents is correct in his contention that the onus rests on the applicant to prove the existence of the decision he seeks to challenge as being unreasonable, and that he has failed to discharge that onus.

139. In particular, the Court has very carefully considered the correspondence entered into with the first named respondent by Ms. Egan, solicitor for the applicant. It contains no express request for reconsideration of the decision of the 16th of March, 2011, (save for an entirely contingent request to do so in the event “that the [applicant] is not extradited”). Of course, counsel for the applicant contends that the Court would be justified in discerning an implicit request for reconsideration of that decision. However, the terms of correspondence do not provide any basis for such implication or the drawing of an inference that the DPP should, and would, have interpreted it as requesting a reconsideration. As counsel for the respondents has correctly pointed out, there is nothing in the reply dated the 10th of June, 2013, to indicate that the DPP had regarded such a request as having been made and that she was communicating a refusal to reconsider. Moreover, the Court agrees that the focus of the correspondence was on a request for information and discovery of documents with a view to the applicant contesting the extradition proceedings on various stated grounds, such as alleged inhumane prison conditions in the requesting state, other human rights concerns, coercive plea bargaining in the requesting state’s trial process, various alleged abuses of the process by the respondents, alleged collusion between agents of this state and agents of the issuing state, to list but some. This Court considers that on no reasonable construction of the correspondence in question could it have been interpreted as constituting a request to the DPP to reconsider possibly prosecuting the applicant in this jurisdiction in the light of a request for his extradition having been received by this State from the USA, and the change in the law brought about by the amendments to s. 15 of the Act of 1965 effected by s. 27 of the Act of 2012.

140. In the circumstances, the applicant has not demonstrated that he has an arguable case that he is the victim of an unreasonable decision not to prosecute him, or of an unreasonable refusal to reconsider the decision not to further prosecute him. The Court is not therefore disposed to grant leave to apply for judicial view in respect of any of the matters pleaded under this heading.


Alleged Breach of a Duty to give Reasons
141. The applicant has erected an elaborate construct based around the series of recent decisions of the Supreme Court represented by Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701; Rawson v. Minister for Defence [2012] IESC 26 (unreported, Supreme Court, 1st of May, 2012) and Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 59 (unreported, Supreme Court, 6th of December, 2012), and has sought to suggest that these “point to a broadening of the duty to give reasons, and an abandonment of the old common law position that there was no general obligation to give reasons for administrative decisions”. While that may be true as far as it goes, it utterly fails to engage with the fact that the DPP has always been regarded as being in a special position, as reflected in the decisions in the State (McCormack) v. Curran [1987] I.L.R.M. 225, H. v. Director of Public Prosecutions [1994] 2 I.R. 589, Eviston v Director of Public Prosecutions [2002] 3 I.R. 260, and Carlin v. Director of Public Prosecutions [2010] 3 I.R. 547, to list but some; and that it has been reiterated again and again that in the absence of mala fides, evidence that the DPP has abdicated her functions, or improper motivation, the DPP cannot be called upon to explain a decision to prosecute, or not to prosecute, or give reasons for it or to provide the sources of information upon which it is based. The applicant has adduced no evidence suggestive of mala fides, abdication of function or impropriety of any sort by the DPP. The high water mark of the case advanced by the applicant in terms of the applicable law is that it may be incorrect to regard the Supreme Court as having set out, in State (McCormack) v. Curran & Ors, a comprehensive and exhaustive list of the grounds on which a decision of the DPP might be challenged. The Court does not wish to express any definite view as to whether or not that might be so, it being sufficient for the purposes of a leave application to acknowledge that that very limited point is certainly an arguable one.

142. However, the real problem faced by the applicant is the fact that he has no tenable or stateable basis for challenging the decision at issue, and a fortiori for contending that he should be provided with reasons. The fundamental reasoning underpinning the line of jurisprudence on which he relies is that a person must have reasons if they are to have access to justice for the purpose of challenging the lawfulness of a decision prejudicially affecting their rights and obligations, because, to quote Clarke J. in Rawson, “if decisions materially affecting the rights and obligations of individuals could be made in an unlawful fashion the rule of law would not be upheld.” However, as counsel for the respondents has pointed out, a decision of the DPP either to prosecute or not to prosecute does not determine anybody’s rights or obligations. It is simply a decision to commence, or not to commence as the case may be, a process – i.e., a criminal prosecution. Counsel for the applicant has expressly acknowledged that his client has no right to be prosecuted. The decision not to prosecute him did not determine to his disadvantage any issue relating to his rights or obligations. His constitutional right to his good name remained intact in so far as the offences for which he might potentially have been prosecuted were concerned. Moreover, even if there had been a decision to prosecute him he would still have had the presumption of innocence. It would only be at the end of the trial itself, should it transpire that he was convicted, that his good name would be impugned and his liberty possibly taken from him. However, a decision not to prosecute him had no implications either for his good name or for his liberty, and there was also no prospect that he could be extradited in circumstances where his extradition was absolutely barred by virtue of the territoriality bar then contained within s. 15 of the Act of 1965. Quite simply there was no basis on which he could contend that a decision had been taken that affected adversely his rights and obligations.

143. In addition, and to further develop this point, any entitlement to reasons is necessarily linked to affording an ability to challenge the decision in question before a Court in an appropriate case. However, where a decision has gone entirely in favour of the person concerned, as occurred in the present case with the decision of the 16th of March, 2011, the person concerned has no need to seek access to justice because he has no legitimate basis for complaint, and consequently no tenable basis for challenging the decision, and equally in those circumstances no entitlement to reasons for the decision.

144. In those circumstances, the elaborate construct erected by counsel for the applicant is built upon sand. The Court considers that the applicant has not demonstrated that he has an arguable case that he is entitled to reasons for the DPP’s decision not to further prosecute him and the Court is not therefore disposed to grant leave to apply for judicial view in respect of any of the matters pleaded under this heading.


Inappropriate forum as a potential bar to extradition
145. As counsel for the respondents has pointed out, the Baker Review Committee in the UK was concerned inter alia with considering whether the so-called forum bar to extradition, enacted by the insertion into the UK Act of 2003 by paragraph 5 of Schedule 13 to the UK Act of 2006, of s. 19B and s. 83A, should be brought into force. When engaged in as a comparative law exercise, an examination of the specific terms in which the UK legislation providing for the forum bar was enacted (though never commenced), and then radically amended (and only commenced in that amended form), presents an interesting subject for study. However, it is less valuable as an aid to this Court in considering the applicant’s case under the present heading, than those parts of Chapter 6 of the Baker Review report, concerning “Forum”, that deal with the idea of a forum bar at a conceptual level, and that set out the background to the enactment of the relevant provisions of the UK Act of 2006.

146. As the Baker Review report states, in this context, 'forum' is used as meaning the most convenient or appropriate place for a legal proceeding to be heard and determined. In civil proceedings the latin term 'forum conveniens' is used: this is in contrast to 'forum non conveniens' which is a doctrine which gives a court power to refuse to hear a case where there is a more appropriate forum. In Spiliada Maritime v Cansulex [1987] AC 460 Lord Diplock stated (at p.476):

      "The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be heard more suitably for the interest of all the parties and the ends of justice."
There is no similar principle in criminal proceedings: decisions to prosecute are generally for the prosecuting authorities in each particular jurisdiction. The protection for the accused person is the ne bis in idem principle, which in Irish statute law is reflected in s. 17(1) of the Act of 1965 (and s. 41 of the European Arrest Warrant Act 2003).

147. The Baker Review report points out that, as of the date of that report’s publication, forum was not an express bar to extradition under UK law, although it might operate as such indirectly, for example on the basis that extradition is barred by reason of Article 8 of the European Convention on Human Rights. That was the conclusion reached by the English High Court in R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727. The Bermingham case concerned a fraud involving three British citizens and a request for extradition by the United States. The defendants claimed they should have been investigated and prosecuted, if at all, in England and Wales. Laws L.J. acknowledged (at para. 121) that the possibility of a trial in the United Kingdom was not "legally irrelevant in a case like this." He added, "There might be an instance in which such a possibility could tip the balance of judgment in favour of a conclusion that the defendants' extradition would amount to a disproportionate interference with his article 8 rights." The decision in the Bermingham case created a good deal of media comment, and subsequently a forum bar was inserted in the relevant UK legislation, i.e. in the form of ss.19B and 83A of the UK Act of 2003, as amended, though it was never brought into force.

148. The Baker Review Committee noted that recent years have seen a steady growth in both cybercrime and international organised crime. Many criminal offences now cross national boundaries, for example, computer hacking, computer related fraud, drug trafficking and other criminal conspiracies involving conspirators operating in several jurisdictions. This accords with this Court’s own experience where in the relatively recent past it has had to deal with cases involving alleged transnational conspiracies to counterfeit currency (Attorney General v. Garland [2012] IEHC 90 (unreported, High Court, Edwards J., 27th January, 2012)) and to launder the proceeds of crimes involving human trafficking and prostitution (Minister for Justice and Equality v. T.E. [2013] IEHC 323 (unreported, High Court, Edwards J., 19th June, 2013) and Minister for Justice and Equality v. T.E. No 2. [2014] IEHC 51 (unreported, High Court, Edwards J., 24th January, 2014).) The question of where someone should be tried for crime with a transnational or international dimension is arising for consideration in an increasing number of cases.

149. The Baker Review Committee examined the situation then obtaining in the United Kingdom in relation to decisions concerning forum, and noted that such issues were resolved as a result of discussions between prosecutors in the states concerned. Sometimes the issue was straightforward, for example in a conspiracy involving the majority of the conspirators in the requesting state where most of the overt acts occurred, and one conspirator in the requested state. In such circumstances it was likely that a prosecutor in the requested state would cede jurisdiction to the requesting state. However, in circumstances where the arguments might be evenly balanced, what was occurring in practice was that the United Kingdom prosecutor would meet or speak to his or her foreign counterpart, and they would then consider a set of criteria and try to reach agreement on where the case should be tried.

150. The Baker Review Committee noted that in European Arrest Warrant cases prosecutors are assisted by the Eurojust guidelines and in the unlikely event that they cannot agree, will meet at Eurojust in The Hague where the issue will be resolved. The Eurojust Guidelines provide that there should be a preliminary presumption that, if possible, a prosecution should take place in the place where the majority of the criminality took place or the majority of the loss was sustained. When reaching a decision, prosecutors should balance carefully and fairly all the factors, both for and against, commencing a prosecution in each jurisdiction where it is possible to do so.

151. The Eurojust Guidelines identify the relevant factors as: (i) the location of the accused; (ii) the availability of extradition or surrender from one jurisdiction to another; (iii) the desirability of prosecuting all the defendants in one jurisdiction; (iv) the availability of witnesses and their willingness to travel and give evidence in another jurisdiction; (v) the protection of witnesses including, for example, the possibility of one jurisdiction being able to offer a witness protection programme when another has no such possibility; (vi) the desirability of avoiding delay; (vii) the interests of victims and whether they would be prejudiced if any prosecution were to take place in one jurisdiction rather than another; (viii) the availability of reliable, credible and admissible evidence; (ix) the effects of a decision to prosecute in one jurisdiction rather than another; (x) the relative sentencing powers of courts in the different potential jurisdictions and while this must not be a primary factor, prosecutors should ensure that the penalties available reflect the seriousness of the conduct which is the subject of the prosecution; (xi) the powers available to restrain, recover, seize and confiscate the proceeds of crime; (xii) the costs of prosecuting a case or its impact on the resources of a prosecution office (although this should only be a factor in deciding whether a case should be prosecuted in one jurisdiction rather than in another).

152. The Baker Review Committee further noted that in cases under Part 2 of the UK Act of 2003 (i.e. non European Arrest Warrant cases), there are broadly similar guidelines for dealing with cases where the United Kingdom and the United States have concurrent jurisdiction. This guidance was signed on the 18th January, 2007, by Her Majesty's Attorney General, the Lord Advocate (for its application to Scotland) and the Attorney General of the United States of America. A separate document of the same date (18th January, 2007) entitled "Attorney General's domestic guidance for handling criminal cases affecting both England, Wales or Northern Ireland and the United States of America", gives effect on the domestic plane to the guidance agreed at the international level by the Attorneys General and the Lord Advocate. The report further notes that whilst the Attorney General's guidance requires decisions to be made in a structured manner, it does not descend into the detail of the Eurojust guidelines as to the factors to take into account in deciding where a case should be prosecuted.

153. This Court is unaware if similar guidance has been agreed between the Irish Attorney General and her counterpart in the USA. However, no such guidance has been brought to the Court’s attention.

154. The Baker Review Committee then considered the case for and against a forum bar. Among the arguments in favour of such a bar were the following considerations:

      (i) It was desirable that any decision on forum should be made by a judge in open court rather than by the prosecutor behind closed doors;

      (ii) There needed to be more rigorous scrutiny of the question of whether it is possible to prosecute in the United Kingdom: that was thought to be best done by a judge who was better placed than the prosecuting authority to do so;

      (iii) The current arrangements did not provide for the requested person to be heard or given any opportunity to influence the decision;

      (iv) In the European Arrest Warrant context, the Framework Decision expressly provides in Article 4(7)(a) for a forum bar as an optional ground for not executing a European Arrest Warrant and some countries have implemented this optional ground for non-execution;

      (v) Interference with the right to respect for family life guaranteed by Article 8 of the Human Rights Convention must be exceptionally serious before this can outweigh the importance of extradition and the forum bar would add an extra layer of protection to the extradition process;

      (vi) It would be a safeguard against over-zealous prosecutors in overseas jurisdictions. This was considered to be a concern in cases where “exorbitant jurisdiction” was being asserted by the requesting state, a feature of some extradition requests coming from the United States of America in particular.

155. The Baker Review Committee discounted as an argument in favour of a forum bar a sentiment detected in some of the submissions they had received, that a British citizen or a permanent resident should be tried in the United Kingdom rather than elsewhere, if this was possible. They discounted it for two reasons. First, the United Kingdom (as well as other common law countries) extradites its own nationals and only a diminishing number of countries now operates a bar to extradition based on nationality. Second, transnational and international crime has grown significantly in recent years and the importance of effective extradition procedures, operating in the public interest, is all the more obvious. However, they recognised that this was partly a political question. Some countries do refuse to extradite their own nationals or residents and agree instead to prosecute them so that they do not gain impunity. In many instances, the jurisdiction of the United Kingdom would allow it to prosecute. However, to impose an obligation to do this would first affect the principle of prosecutorial discretion and secondly have significant resource implications for the country leading to increased prosecutions and the associated costs including enforcing any sentence imposed.

156. They then summarised the arguments against introducing a forum bar, as being:

      (i) That effective and fair arrangements already existed to decide where a person should be tried.

      (ii) Requiring forum to be decided by a judge would unnecessarily complicate and impede the extradition process and undermine international co-operation.

      (iii) It would generate satellite litigation; in particular applications for judicial review directed at prosecutors seeking to compel a prosecution in the United Kingdom.

      (iv) The prosecuting authorities were considered to be better placed than the courts to decide the question of forum. The answer depends on a complex range of factors other than the defendant's interests. The court would be less able to make an informed decision.

      (v) The prosecutor's independence would be undermined.

      (vi) The forum bar was unnecessary: where someone is prosecuted in the United Kingdom, the domestic proceedings always take precedence.

      (vii) The forum bar would have a negative impact on the ability of the United Kingdom to fight serious and organised crime.

      (viii) When prosecutors decide a case should not be prosecuted in the United Kingdom, that decision is already open to challenge by judicial review.

      (ix) Where the impact of a crime is in another jurisdiction, it makes sense for the offence to be tried in the place where it can most effectively be prosecuted.

157. The Committee, having considered the submissions of various interested parties, concluded that the main criticisms of the then existing system in the United Kingdom were threefold (vide para. 6.70 of the report):
      “First, that the prosecuting authority does not give sufficient weight to the requested person's place of residence when taking a decision as to whether to prosecute. Secondly, the process of discussion between investigators or prosecutors as to who should prosecute is not transparent. Thirdly, that the requested person has no opportunity to have his views taken into account.”
158. The Committee considered that the first two criticisms could be addressed, at least in part, if the prosecuting authorities operated to clearer guidelines available for all to see.

159. As regards the third criticism, the report comments (also at para. 6.70):

      “ …no doubt most accused persons would prefer not to be extradited or prosecuted at all. However, there may be matters which are relevant to the issue of forum as regards the personal circumstances of the requested person or their family; these will be taken into account at the point of when the existing bars to extradition are considered. We believe that this is appropriate: it is not for a defendant to dictate where he should be tried, although the prosecuting authorities must, when reaching their decisions, have regard to the defendant's interests (and those of his family) in order to comply with Article 8 of the Human Rights Convention.
160. Consistent with this approach, the Committee had earlier remarked (at para. 6.68):
      “We appreciate that there are many who hold strong views in favour of the introduction of the forum bar and forceful arguments have been advanced to us in support of their position. It may be a considerable hardship for someone to leave his place of residence and his family and go to a foreign land to be tried in a legal system with which he is unfamiliar. However, in our firmly held view the issue of forum is better decided by the prosecuting authority than the court. A decision about where a case should be tried is par excellence a prosecutorial decision, as is a decision whether it should be prosecuted at all: the prosecuting authority will be familiar with the detail of the case, the available evidence and the viability of proceeding in one jurisdiction rather than another.”
161. The Baker Review Committee ultimately recommended against the bringing into force of the forum bar provided for in s. 19B and s. 83A of the UK Act of 2003 as inserted by paragraph 5 of Schedule 13 to the UK Act of 2006. As we now know, the United Kingdom’s parliament subsequently extensively amended those provisions by means of the UK Act of 2013, and in the manner described by counsel for the respondents in his submissions, reviewed earlier at paragraphs 127 to 130 above.

162. This Court has derived considerable assistance from the description and consideration of the idea of a forum bar, both at the conceptual level, and in terms of how one might operate in practice, provided by the report of the Baker Review Committee. In this Court’s view the submission of counsel for the respondents to the effect that there is no imperative, in public international law or otherwise, that a state should, as a matter of fair procedures, operate a forum bar capable of being invoked before its courts, is correct. Whether or not any state does so is a matter of choice for each sovereign state to make. The fact that the Oireachtas has not enacted a forum bar in Irish law capable of being invoked before our courts does not represent a defect, fundamental or otherwise, in our system of justice. It is not mandated by any right guaranteed to the applicant under the Constitution, or by the fact that Ireland has signed and ratified the European Convention on Human Rights.

163. It is necessary then to consider whether or not an arguable case can be made, as the applicant seeks to do, that the DPP is, and has at all material times been, obliged to have regard to forum issues in considering whether or not to prosecute a party domestically in a case in which there has been, or possibly may be, a request from another state for the extradition of that party. Certainly, an obligation to do so could not have existed prior to the amendment to s. 15 of the Act of 1965, effected by s. 27 of the Act of 2012. That has to be so, in circumstances where s. 15 in its original form provided an absolute territoriality bar in cases where the offence for which extradition was being, or might be, requested was regarded under the law of the state as having been committed in the state. If extradition was simply impossible because the offences were theoretically capable of being prosecuted in this state there were no fora to choose as between. In such a situation the only alternatives open to the DPP were to prosecute, or not prosecute, in this jurisdiction. That being so, the argument that the applicant wishes to make seems to this Court to be unstateable in so far as the statutory position, pre the 2012 amendment, is concerned.

164. However, even if the argument is unstateable in so far as the pre-2012 amendment statutory position is concerned, the applicant further seeks leave to argue that post the 2012 amendment there now exists an obligation on the DPP to consider forum issues. In the Court’s view that argument is also unstateable having regard to the specific terms of s. 15 of the Act of 1965 as amended. The way in which the amended provision is structured clearly demonstrates, as counsel for the respondents rightly points out, that the DPP is given a right of first refusal on prosecution where the offences are regarded as having been committed in the state and the offender is also wanted for prosecution for the same offences in another state, which has requested, or it is anticipated may request, that person’s extradition. The DPP does not get to choose as between potential fora in which an offender might be prosecuted. The position now is that where a decision is made by the DPP to prosecute for the same offences as those comprising an extradition request, this amounts to a total bar on surrender under s. 15(1)(b) of the Act of 1965 as amended. However, even if the DPP decides not to prosecute that does not have the automatic effect of clearing the way for the offender’s extradition. On the contrary, it is then up to the Minister to decide whether or not to extradite the offender. It may indeed be relevant for the Minister at that point to consider certain issues, loosely characterised earlier as “forum issues”, depending on the circumstances of the case. However, in referring to “forum issues” in this context, the Court is not to be taken as referring to anything other than whether or not it is appropriate to extradite. At that point there would in fact be no choice of forum. The decision to be made at that point would simply be a decision to extradite or not to extradite. However, the right to make that decision has been entrusted by the Oireachtas to the Minister and to the Minister alone. Having regard to the express wording of s. 15 of the Act of 1965 as amended, it cannot tenably be said to rest upon the DPP.

165. One further important point requires to be made. In circumstances where the respondent can raise fundamental rights issues before this Court at his s. 29 hearing, he cannot contend that the absence of inappropriate forum as a potential bar to extradition under Irish law breaches any of the rights guaranteed to him under the Constitution, or under the European Convention on Human Rights. In saying this, the Court is not to be taken as expressing any view in this judgment as to whether issues concerning the proportionality of a proposed extradition measure having regard to that person’s rights under Article 8 of the European Convention on Human Rights, or concerning whether to extradite that person in the circumstances of the case would be contrary to any of this State’s other obligations to that individual under the same Convention, or under the Constitution, are matters properly to be raised before this Court at the s. 29 hearing, rather than with the Minister at the point at which he is considering whether or not to extradite; or as to whether an offender can raise such issues either before the Court or before the Minister, at his choice, or indeed before both . The Court might be required to consider some or all of these issues at some point in the future, either in the applicant’s extradition case or in another case, but they do not arise for determination at this point in what is merely an application for leave to apply for judicial review.

166. In conclusion, as regards the issues raised under the heading “Inappropriate Forum as a Potential Bar to Extradition” in the applicant’s draft “Statement Required to Ground Application for Judicial Review”, the Court is not satisfied that the applicant has made out an arguable case that there was an obligation on the part of the DPP to have considered choice of forum issues in making her decision on the 16th of March, 2011, or that there was and is an obligation on her to reconsider the said decision in the light of recent changes in the law and to now take such issues into account. In addition, the applicant has not demonstrated an arguable case that a failure to consider “forum issues”, if indeed there was, and continues to be, any such failure, breaches his right to fair procedures. Further, he has not demonstrated that he has an arguable case that the absence of inappropriate forum as a potential bar to extradition under Irish law breaches any of the rights guaranteed to him under the Constitution, or under the European Convention on Human Rights. The Court is not therefore disposed to grant leave to apply for judicial view in respect of any of the matters pleaded under this heading.











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