Court of Appeal allows appeal on limited grounds, setting aside High Court ruling on 2005 Act duties due to jurisdictional overstep.

THE COURT OF APPEAL

Neutral Citation Number: [2018] IECA 130

15/348

Birmingham J

Mahon J

Hedigan J.

65CJA/17

Ali Charaf Damache

Applicant/

Respondent

V

The Director of Public Prosecutions, Ireland and the Attorney General

Respondents/

Appellants

AND

Minister for Justice and Equality

Notice party

AND

The Irish Human Rights and Equality Commission

Respondents/

JUDGMENT of Mr. Justice Hedigan delivered on the 12th day of April 2018

1. The respondents appeal against the judgment of Donnelly J. delivered on the 21st May 2015 and specifically with Part 12 thereof.

Background

2. The applicant herein was sought by the United States of America for prosecution of “terrorism-related offences”. He was sought in

relation to two separate offences set out in an indictment filed on the 20th October 2011 in the US District Court for the Eastern

District of Pennsylvania. The two offences for which Mr Damache was indicted are as follows:

“Count 1: Conspiracy to provide material support to terrorists, in violation of Title 18, United States Code, Section

2339A, and carrying a maximum penalty of 15 years imprisonment and

Count 2: Attempted identity theft to facilitate an act of international terrorism as defined in Title 18, United States

Code, Section 2231(1), in violation of Title 18, United States Code, Section 10289(a)(2), (b)(4), (f) and (2), carrying a

maximum penalty of 30 years imprisonment.”

3. The facts alleged against Mr Damache as set out in the extradition request and supporting documentation, indicate that in early

2009 Mr Damache met one Ms Colleen La Rose online. It is alleged that Mr Damache told Ms La Rose, a US citizen then residing in

Pennsylvania, that he was a devoted Jihadist living in Ireland and that he wanted to travel to Pakistan to fight against US and allied

troops. Soon thereafter, Mr Damache, Ms La Rose, and others developed plans to form a European terror cell. The plan called for a

small group to travel from Europe to an Al-Qaeda training camp in Pakistan to get training in military tactics and explosives.

4. After the completion of training this group was to return to Europe and support attacks on targets that were to include US and

Western European citizens. In August 2009, Ms La Rose travelled to the Netherlands, journeying eventually to join Mr Damache in

Ireland to assist him. Through electronic communications, Mr Damache co-ordinated Ms La Rose’s departure from the US and arrival,

transportation and accommodation in Amsterdam. In Amsterdam, Mr Damache provided Ms La Rose with spiritual guidance and planned

her move from Amsterdam to Ireland to join his group. Ms La Rose later flew to Ireland and moved in with Mr Damache and his new

wife.

5. Ms La Rose returned to the USA on the 15th October 2009 and was arrested on foot of a warrant issued on 10th October 2009. In

an interview following her arrest, it is alleged that Ms La Rose admitted that she had travelled overseas with the intent to join Mr

Damache and commit violent attacks on US and European citizens, that she was involved in a plot to kill the Swedish artist Lars Vilks,

a cartoonist who had drawn depictions of Muhammad, that she tried to raise funds for Al-Qaeda and that she had intentionally misled

investigators by providing false information on two occasions in order to further the conspiracy.

6. A request for the extradition of Mr Damache was sent on the 11th January 2013 by the Embassy of the USA in Dublin to the

Minister for Foreign Affairs and Trade. It was received by the legal division of the Department of Foreign Affairs and Trade on the 14th

January 2013 and by the then Minister for Justice and Equality on the 18th January 2013. On the 8th February 2013 the Minister for

Justice and Equality certified that the request for extradition had been duly made by and on behalf of the USA and received by him in

accordance with Part 2 of the Act of 1965. An application was made to a judge of the High Court (Edwards J.) in accordance with the

provisions of the Act of 1965 and a warrant for the arrest of Mr Damache was issued on the 15th February 2013. Mr Damache was

arrested on the 27th February 2013 in Waterford Courthouse on foot of this warrant.

7. There followed a series of applications to court, both in respect of his extradition and two particular applications in which leave

was sought to seek judicial review of the DPP’s failure to prosecute the applicant in Ireland in respect of the offences for which his

extradition was sought by the United States or to give reasons for not doing so. Two separate applications for leave to seek judicial

review were refused by Edwards J. on the 14th March 2014. Both of these decisions were appealed to the Supreme Court which in an

ex tempore judgment dated the 3rd November 2014 allowed leave in respect of both applications as follows:

“5. The grounds upon which the Court will grant leave are as follows:

(i) Whether the decision of the DPP in the circumstances of this case is reviewable.

(ii) Whether the DPP is required to give reasons for her decision in the circumstances of this case.”

It is that judicial review which came before Donnelly J. as a result of which she delivered her judgment on the 21st May 2015 from

which the DPP appeals.

Preliminary submissions by the appellant on the finding made in relation to the 2005 Act

8. Neither the relief granted nor the grounds upon which it was granted was the subject of:-

(a) any application for leave to apply for judicial review;

(b) any application for leave to amend the statement of grounds; or most significantly

(c) the order of the Supreme Court granting leave to apply for judicial review;

(d) in circumstances where no leave was obtained to apply for judicial review for the injunctive relief granted by the High

Court and/or on the grounds set out in the High Court judgment, the appellant submits that the High Court had no

jurisdiction to grant this relief.

It is to this preliminary submission that this judgment is directed.

9. The relevant section of the High Court judgment is as follows:

“12.7.36 The amicus curiae submitted that the DPP had to take into account forum issues. It was submitted that forum

issues play a role in extradition particular [sic] in relation to EAW cases. The amicus curiae also brought the Court’s

attention to the Council Framework Decision of 13th June 2002 on Combating Terrorism (2002/475/JHA) (“The

Framework Decision on Combating Terrorism”). This was another framework decision brought into force in the

aftermath of the event [sic] of 11th September 2001. This was to ensure that there was greater approximation of laws

of member states in relation to terrorism offences and a greater commitment to prosecuting these offences. As the

Framework Decision on Combating Terrorism required member states to prosecute certain extraterritorial offences of

terrorism the question of jurisdiction (or forum) was dealt with. Where the offence falls within the jurisdiction of a

number of Member States, then Article 9 and, in particular, para. 2 thereof provides for sequential account to be taken

of the following:

(a) The Member State shall be that in the territory of which the acts were committed;

(b) Member States shall be that of which the perpetrator is a national or resident;

(c) The Member State shall be the member state of the origin of the victims;

(d) The Member State shall be that where the perpetrator is found.

12.7.37 That reference by counsel for the amicus curiae was helpful, as further research established that the

Framework Decision on Combating Terrorism had been implemented in this jurisdiction by the provisions of the Criminal

Justice (Terrorism Offences) Act 2005 (“The Act of 2005”). During the course of the hearing no other party referred to

the Framework Decision on Combating Terrorism or that Act of 2005 and indeed it was not immediately clear to the

Court if the Framework Decision could have any relevance covering as it did relations between member states of the

European Union. . .

12.8.2 I considered whether I should bring the parties back for further argument on this matter as I had done in respect

of the matters arising in the extradition proceedings. For a variety of reasons I felt it either inappropriate or

unnecessary. In light of the decision I am making in the extradition matter, it is far more appropriate to deal with this

matter without any further delay. Furthermore, it was an issue the genesis of which was raised in the course of the

proceedings namely by the amicus curiae. In particular, the existence of a framework decision creates legal obligations

on each member state and the extent of those obligations could have been addressed by the State if they so wished.

Moreover, as it is a legislative provision directly impacting upon the legal obligations of the DPP, the Court is obliged to

apply that provision to the consideration of the matters at issue. . . .

12.8.8 In those circumstances, I am of the view that s. 6(9), when read in accordance with Article 9, para. 2 requires

the DPP to consider this issue of jurisdiction at the point at which she herself is considering prosecution. It is the alleged

facts and the alleged offence which give rise to the duty of the DPP to consider whether another member state has

jurisdiction to try the person for the alleged offence and to the requirement for cooperation with the relevant

authorities.

12.8.9 It is not for this Court, however, to decide if the allegations met the criteria under those provisions. That is a

matter for the DPP. Undoubtedly, however, in the circumstances of this case it is a matter which at the very least

requires her consideration. It is clear from all the information placed before the Court that, at a minimum, the possibility

arises on the facts alleged against Mr Damache that terrorist offences may have been committed and that at a

minimum they may give rise to a claim of jurisdiction by Sweden. It appears that no consideration has been given by the

DPP as to whether another member state has jurisdiction to try this matter. That is a reasonable inference in

circumstances where the DPP has submitted to this Court that she does not have any jurisdiction to consider forum

matters. . .

12.8.14 The Act of 2005 concerns forum issues between member states of the European Union. Does that mean it is of

no relevance to the forum issue raised in this case? In my view, that does not follow. As I have indicated, it may well be

that Sweden for example might assert jurisdiction to prosecute any person who might be involved to murder its citizens

or any resident of its State. In circumstances where the person is high-profile or indeed where the attempted murder is

being carried out with the intention seriously to intimidate a population or to seriously destabilise the social structures of

the State, it would amount to a terrorist offence under the Framework Decision on Combating Terrorism. The

attempted murder of a cartoonist because of his cartoons might well be viewed by Sweden as an intention seriously to

intimidate a population or to seriously destabilise the social structures of that member state. . .

12.8.16 The first issue raised by the Supreme Court was whether the DPP’s decision was reviewable. The DPP submitted

that she did not have to consider forum at all as she had no choice of forum between separate states with concurrent

jurisdiction. The DPP submitted that if she was wrong then the decision was reviewable. There is a legal requirement for

the DPP to consider forum albeit in relation to EU member states. Mr Damache’s principal aim in these proceedings is to

avoid being sent to the USA for trial. In furtherance of that, he argued that forum conveniens was an appropriate

consideration for the DPP. If a review of forum issues was undertaken by the DPP and ultimately Sweden, this at least

raises the possibility that Mr Damache may not be sent to the USA.

12.8.17 In light of all the foregoing, it is clear that this is a situation where the DPP abdicated her function to consider

forum (albeit unwittingly), or acted under an improper policy (the policy being that forum will not be considered). The

matter is therefore reviewable within the well-settled parameters of review of DPP decisions. I will consider further below

if I should issue an order of certiorari.

...

12.8.22 I have considered therefore whether the proper order is to make no order. However, it seems to me that to do

so may leave Mr Damache in a difficult position if there is such an appeal by the State solely in relation to the extradition

proceedings and it is successful. I consider that there could be a lacuna in the protection of his rights should I not make

a conditional order in terms as follows:-

(i) An order by way of injunction quashing the decision of the DPP, communicated on 31st January, 2014, by letter dated

28th January 2014, refusing to reconsider her decision taken on 16th March 2011, not to prosecute the applicant, such

order not to issue in the event that there is no appeal by the State in the manner of the extradition proceedings against

Mr Damache or in the event that such an appeal is taken but is unsuccessful.”

10. The orders ultimately made by the court on the 9th June 2015 in each of the two judicial reviews were identical and were as

follows:-

“It is ordered that the Court doth issue an injunction quashing the decision of the DPP taken on the 16th of March 2011

not to prosecute the applicant such order not to issue in the event that there is no appeal by the State in the matter of

the extradition proceedings against Mr Damache or in the event that such appeal is taken but is unsuccessful.

And it is ordered that the said order be stayed until the determination of the extradition appeal and/or the appeal in the

judicial review.”

It is to be noted that these two orders are somewhat different from each other. The one referred to in the judgment refers to the

quashing of the decision of the DPP refusing to reconsider her decision taken on the 16th March 2011 whereas the order actually

made by the Court related to quashing the decision of the DPP taken on the 16th March not to prosecute the applicant. In the light

of the decision in this judgment it will not be necessary to pursue the variation between these two orders.

The decision of the Court

11. The applicant in this case has had a most involved and complex journey through the Irish legal system. In the course of that he

has succeeded in establishing a landmark decision in relation to the legality of search warrants. He challenged his extradition and

sought judicial review on two separate grounds. He finally succeeded in obtaining his liberty after judgment in this case refusing his

extradition. He had litigated high and low in his efforts to ensure that he remained in Ireland rather than be extradited to the US. He

was prepared to be prosecuted in this country and to assist his prosecution in a number of different ways. In a bizarre denouement of

this strange story, having been released from prison he travelled out of Ireland before the Court of Appeal could hear the appeal in

this matter and travelled to Barcelona. There, he was promptly arrested on foot of an extradition warrant issued by the United States

and ultimately was extradited there in July, 2017. The Court is informed that he now awaits trial in a federal prison in Philadelphia.

12. The learned trial judge delivered in this case, no doubt after immense work, a most learned and complex judgment almost entirely

devoted to the extradition law matters. She dealt in all with 12 separate issues, the last of which was the judicial reviews. I have no

doubt that the learned judge in trying to cover all possible angles in this judgment was motivated by the admirable desire to have the

case concluded in the most efficient way possible consistent with justice. Bearing in mind the convoluted history of the case this was

an apparently good approach. It is regrettable, however, that in her efforts to do this, at the very last hurdle, she overstepped the

bounds of her jurisdiction. That jurisdiction is a strictly limited one. In a statement of the law frequently approved in the years since,

Costello P. in McCormack v. Garda Síochána Complaints Board [1997] 2 IR 489 stated at pp. 503-4 as follows:-

“It seems to me that only in exceptional circumstances would liberty to amend a grounding statement be made because

the court's jurisdiction to entertain the application is based on and limited by the order granting leave. . .”

Save in exceptional circumstances where the interests of justice clearly require it, the Court has no jurisdiction to go beyond the

grounds allowed and the reliefs sought. The Supreme Court set out those grounds in its judgment of the 3rd November 2014 in both

judicial review appeals. They are set out above. The grounds are clearly strictly limited to the issue as to whether the DPP has to

give reasons for her decision in the circumstances of this case in the event that the court should find that her decision was actually

reviewable. They do not extend to consideration of whether the DPP is bound to consider any duties that may fall upon her arising

from the provisions of the Act of 2005 nor any considerations she may have to take into account thereunder before deciding whether

to prosecute or not. As a result the learned judge’s decision in Part 12 was made without any pleadings or submissions to assist her

on the discrete issue relating to the 2005 Act. The parties had no notice of nor opportunity to advance any argument on the issue.

Counsel for the DPP has indicated that had she the opportunity, the DPP would have had some very trenchant arguments to make

upon the issue. Thus, Part 12 of the judgment of the High Court herein will be set aside and the appeal will be allowed to that extent.

In the light of the applicant’s current situation in the United States awaiting trial, no practical purpose can be served by remitting this

matter to the High Court. Any issues arising in relation to the 2005 Act will have to await further consideration by the Court and the

fullest opportunity for all the parties involved to make whatever arguments they wish to, both in pleadings and submissions, written

and oral.