Friday 22 June 2018

'Necessary' not to prosecute Irishman known as world’s largest ‘facilitator of child porn' here, High Court hears

Eric Eoin Marques is facing extradition to the US
Eric Eoin Marques is facing extradition to the US

Alison O'Riordan

The High Court has heard that it is “necessary” for the Minister for Justice to have regard to the DPP’s reasons not to prosecute an Irish man in this jurisdiction because of the “profoundly serious consequences” of his extradition to the US.

Eric Eoin Marques, who is alleged to be the owner and administrator of an anonymous hosting site known as Freedom Hosting, is wanted by the US authorities to face charges relating to conspiring to distribute and advertise child pornography, as well as advertising and distributing child pornography.

He has been described by the FBI as the world’s largest ‘facilitator of child pornography”.

The charges against Mr Marques relate to images on over a hundred “anonymous websites” described as being extremely violent, graphic and depicting the rape and torture of pre-pubescent children.

The 32-year-old with an address at Mountjoy Square in central Dublin, has been in custody since his arrest in August 2013 and suffers from Asperger’s Syndrome.

His surrender despite his opposition was ordered by the High Court in December 2015 and a subsequent appeal was dismissed by the Court of Appeal.

Mr Marques also brought actions over the DPP's decision not to prosecute him in respect of the offences for which his surrender is sought. He had offered to plead guilty to the alleged offences in Ireland.

Both the High Court and the Court of Appeal dismissed that action.

Last June, the Supreme Court turned down Marques bid to bring an appeal on that issue before it.

An application to the European Court of Human Rights, that would have put a stay on the extradition, had also been unsuccessful, the High Court previously heard.

Mr Marques has launched fresh judicial review proceedings aimed at halting his surrender over the Minister for Justice's alleged refusal to use her discretion to halt his extradition.

Previously, Mícheál P O’Higgins SC, for Mr Marques, argued that his client should have access to records that were before the Minister for Justice when she allegedly refused to use her discretion.

Mr O’Higgins told the court today (Wednesday) that his challenge to the adequacy of the reasons given by the Minister affect his client’s rights in a significant way.

He said the Minister had confirmed by way of a “uninformative” letter that she had not sought or had regard to the DPP’s reasons for not prosecuting Mr Marques in this jurisdiction.

The Minister was of the view that it was not necessary or appropriate to seek the DPP’s reasons, the court heard.

The barrister said that while the DPP does not have to give reasons for her decisions, the Minister for Justice does not have any "such immunity.”

Counsel said the Minister’s letter did “not pass muster” for a decision that clearly impacted the interests of his client in a very significant way.

“It follows that the Minister as a decision maker must not disregard potentially relevant considerations that arise in a case and must give reasons for the decision when they are requested,” he said.

Mr O'Higgins submitted that if the DPP did provide her reasons to the Minister or if the Minister sought the reasons and received them, would there be an obligation to share them with the affected party and the court?

The court heard that flowing from the Minister’s duty to act in the public interest, it was necessary for her to consider why the DPP had declined to prosecute Mr Marques.

“We say this rendered the proposed extradition unfair and disproportionate,” he said.

Read More: 'Largest facilitator of child porn' loses legal challenge against extradition to US

Mr O’Higgins described it as an “unchartered” decision making process that is largely untouched in case law but the Minister must have a sustainable reason for the decision made.

“We say that having regard to the profoundly serious consequences of extradition for Mr Marques, it was necessary and important for the Minister to have regard to the DPP’s reasoning not to prosecute,” he said.

Counsel for the Minister for Justice, Patrick McGrath SC, told the court that the Minister was exercising a “residual discretion" and the respondent was engaging in "wild speculation".

“There is no reason identified as to why he needs to know,” he said.

The barrister said that reasons have been given by the Minister and that they were “adequate.”

Mr Marques was not present in the High Court for today’s hearing before Ms Justice Aileen Donnelly.

The hearing resumes at 10am tomorrow morning.

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