By Natasha Reid
An Irish man described by the FBI as the world’s ’largest facilitator of child pornography’ is making a legal bid aimed at halting his extradition to the United States.
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 and advertising and distributing 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 30-year-old with an address at Mountjoy Square in central Dublin, has been in custody since his arrest in August 2013.
His surrender was ordered by the High Court in 2015 December, which he opposed. His appeal against that order 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 month 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 has heard.
Mr Marques has now 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.
Mr Marques was not present in the High Court for today (Friday’s) hearing before Ms Justice Aileen Donnelly. However, his barrister, Mícheál P O’Higgins SC, spent much of the hearing outlining why his client should have access to records that were before the minister when she allegedly refused to use her discretion.
He said he needed the documents to find out ‘did the minister actually choose not to make a decision whether to exercise her discretion not to extradite’.
As for his grounds for judicial review, Mr O’Higgins said the minister should have had the DPP’s reasons not to prosecute him here, and that she should have advanced those reasons to his client. He also wanted to ascertain if she’d had regard to irrelevant considerations and had not had regard to relevant considerations.
He also said an issue of fairness arose, especially when the requested material was in the possession of one party and that no indication had been given about a difficulty or problem providing it.
“It doesn’t appear to be claimed that what we’re seeking is irrelevant, but solely that it not necessary,” he said.
He added that it was of note that the respondent (the minister) was not asserting privilege or confidentiality.
“I say that as a matter of fundamental fair procedures, it is necessary in a public law case that a decision maker places face-up on the table the cards the decision maker has,” he continued. “Not only do we not have the cards face-up, we don’t even have the cards uniquely in the possession of the minister.”
He said his client argued that it was a breach of natural justice and fair procedure not to be given the DPP’s reasons and not to be given a chance to reply to those reasons.
“My client should be given a chance to make meaningful submissions,” he said.
Counsel for the minister has been given until close of business on Wednesday to provide an amended statement of opposition. The hearing will then continue on Friday.
Court of appeal
Dismissing Mr Marques’ earlier legal actions in the Court of Appeal last December, Mr Justice Michael Peart said he agreed with the High Court’s conclusion that the DPP’s decision not to prosecute Mr Marques in Ireland was “not reviewable” and the Director was “not obliged to give reasons” for her decision not to prosecute.
Mr Marques had no right be it statutory, constitutional or otherwise to be prosecuted for an offence here even where he offers to plead guilty. There was “simply no such right known to the law,” Mr Justice Peart said.
Citing case law, he said the constitutional right of access to the courts is a right to initiate litigation, not a right to compel suit or prosecution.
Mr Justice Peart said Mr Marques had no free standing right to be given reasons for the decision not to prosecute. If he had no right to even request what he was requesting, he had no right to reasons why his request was refused.
Mr Justice George Birmingham and Mr Justice Garrett Sheehan said they agreed with Mr Justice Peart’s judgment.
Dismissing Mr Marques’ appeal against his extradition order, Mr Justice Peart said the single ground of appeal was essentially that, if he was convicted, Mr Marques would be exposed to a sentencing regime in America that would be unconstitutional here.
It was submitted that a sentencing judge in America is “obliged” to take account of other uncharged conduct as well as conduct an accused has been acquitted of at sentencing and to do so on the lower standard or proof – on the balance of probabilities.
Mr Justice Peart said the apprehensions expressed by Mr Marques were based on speculation. Insofar as he feared that a potential sentence could be enhanced by reference to him allegedly making a financial gain, that fear could not amount to a substantial or real risk of unfairness.
Mr Justice Peart said he agreed with the High Court judge’s conclusions that all of the common law cases referred to the court concerned the burden of proof at trial. None of them demonstrated a “universal requirement that all matters at sentencing” be determined beyond reasonable doubt.
Referring to the European Court of Human Rights case known as ’Abu Qatada v the United Kingdom’, Mr Justice Peart said the facts relied on by Mr Marques “cannot by any stretch of the imagination be compared to the heinous and egregious prospect of a conviction based upon evidence or confessions … extracted through the use of torture”.
That, “unlike the apprehended regime in the present case”, was something that very clearly breached an international norm.
Mr Justice Birmingham and Mr Justice Sheehan again said they agreed with Mr Justice Peart’s judgment.