New Appeal: Is the Minister for Justice required to give reasons for decision not to refuse extradition?

In this determination, Marques v Minister for Justice and Equality, the Supreme Court granted Marques leave to appeal on “the meaning of s 15(2) of the 1965 Act [Extradition Act 1965] and the nature of the Minister’s role thereunder”. The Court will consider whether s 15(2) obligates the DPP and the Minister to give reasons, of the judicial review standard, for decisions which are subject to the Act.

 

Background

In 2013, gardai searched Marques’ home on foot of a search warrant secured on information received from the FBI. It is alleged that Marques operated a web-hosting service which was “the largest facilitator of child pornography websites on the planet”. Soon after Marques’ arrest, the US sought his extradition. The High Court granted the Minister an order to extradite. In 2016, the Court of Appeal upheld that order and the Supreme Court refused Marques leave to appeal.

In 2017, Marques wrote to the Minister referring to her statutory duty under s 15(2) of the Extradition Act 1965.

S 15 states:

(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.

 

Marques requested that the Minister satisfy herself that his extradition would be in the public interest and that the DPP’s decision not to prosecute him in this jurisdiction was based on legitimate considerations. The Minister wrote back stating that it was neither necessary nor legitimate to seek the DPP’s reasons not to prosecute given the independence of that office, and that she had considered the views expressed by the High Court and Court of Appeal in deciding to proceed with the extradition. It is that decision that is the subject of this appeal.

Marques sought judicial review of the Minister’s decision. In the High Court the Minister conceded that she was obliged to give reasons for her decision. The trial judge held that the Minister’s reasons were adequate and that s 15 of the 1965 Act did not create a statutory exception to the DPP’s immunity from giving reasons. Dismissing Marques’ appeal, the Court of Appeal went further and held that, as there is no substantive right not to be extradited, the Minister was not required to give reasons not to refuse extradition to the judicial review standard.

Marques applied to the Supreme Court for leave to appeal that decision. Granting leave, the Court determined that the case raised issues of general public importance as to the correct interpretation of s 15(2) and the Minister’s role thereunder. The Court also determined that there was a genuine legal question concerning the different interpretations of the Minister’s obligations in the decisions by High Court and by the Court of Appeal.

 

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