A man facing extradition to the United States on international terrorism charges has been refused leave by the High Court, for a second time, to seek judicial review of the DPP's decision not to prosecute him in Ireland.
Mr Justice John Edwards said today that no new grounds had been advanced by Ali Charaf Damache since he refused the forty-eight year old's first application for judicial review earlier this year. The judge said Damache had not met the threshold required for the court to grant him leave.
Damache, an Algerian-born Irish citizen who has been living in Ireland for a decade, is wanted in the United States to face charges relating to the conspiracy to provide material support for terrorists and attempted identity theft to facilitate an act of international terrorism.
The High Court had previously heard that US authorities claim to have evidence that Damache conspired with American woman Colleen LaRose - who used the online name “Jihad Jane” - and others to create a terror cell in Europe capable of targeting both US and western European citizens.
It is alleged that Damache - who went by the username “the black flag” - also participated in a conspiracy to transfer a passport stolen from a US citizen to an individual in Pakistan whom the conspirators believed to be a member of Al Qaeda.
Damache had previously sought leave to apply for a judicial review of the DPP's decision not to prosecute him in Ireland. Last week he asked Mr Justice Edwards to recuse himself from hearing the second application on grounds of objective bias but this was refused by the judge.
In his judgment on the second application delivered today, Mr Justice Edwards said there were no rules which compelled the DPP, as an independent office in a sovereign nation, to prosecute suspected offences in Ireland.
He said extradition to other jurisdictions was still possible even if the DPP had decided not to prosecute in Ireland. What this meant the judge said, as articulated by counsel for the state, Remy Farrell SC, was that the DPP has the right of first refusal.
He said Damache accepted that he had no right to a prosecution in Ireland but claimed the DPP owed him a duty to do so now that he was the subject of extradition proceedings.
An arguable case could be made, the judge said, that the DPP had such a duty. However the office had already considered prosecuting him and decided against doing so on March 16 2011.
The judge said it was simply not open to the applicant to compel the DPP to reconsider their previous decision that, for whatever reason, a domestic prosecution would not be appropriate.
However, in a letter to Damache's lawyers earlier this year, the DPP had furnished some explanation for their decision not to reconsider where it was stated that no additional matters gave rise to such a step.
He said extradition may still be possible even though the DPP had decided not to institute or terminate prosecution in this jurisdiction and it would be wholly inappropriate for the DPP to direct a prosecution just to assist the person.
Counsel for Damache, Mark Lynam BL, indicated to the court that his client may appeal the judgment refusing him leave to take judicial review to the Supreme Court and parts of the first judgment which was delivered earlier this year.
Mr Justice Edwards said it was put forward my Mr Farrell on the last occasion that there was a real risk that any resources he was believed to have may have been exhausted by the first application and the state would now be liable to fund anything else.
The judge said he would deal with all subsequent matters on Tuesday March 4 and ordered that Mr Damache be remanded in custody until that date.