ATTORNEY GENERAL -V- DAVIS, [2016] IEHC 497 (2016) 2

48. This is an approach which is consistent with the jurisprudence of the Irish courts which does not accept that extradition may be successfully opposed based on a lack of correspondence between Irish criminal procedure and the rights available thereunder and the rules or criminal procedure and rights accruing thereunder in the requesting state.
49. In The Minister for Justice v. Stapleton [2006] 3 I.R. 26 Fennelly J., delivering the judgment of the Supreme Court rejected the contention that in a proposed rendition under a European Arrest Warrant the court should require or seek parity of criminal procedure in the requesting member state:

“73. The trial judge was mistaken in seeking parity of criminal procedure in the issuing member state. It is apparent that, even under the long established extradition jurisprudence, as it applied between some member states prior to 2004 and, as it still applies between this country and third countries, such a comparison was not required. Extradition does not demand that there be parity of criminal procedures between contracting states. It is notorious that criminal procedures vary enormously between states. Indeed it is obvious that they approximate much more closely between this country and the United Kingdom than between either of those states and the great majority of member states practising the civil law system, where, for example, there is no tradition of cross-examination of the sort practiced in our courts, and which is here regarded as totally fundamental to the rights of the defence.”

50. A similar submission that the High Court should consider whether evidential rules to which the respondent might be subject in the course of trial if extradited would be unconstitutional was rejected by Edwards J. in The Minister for Justice v. Shannon [2012] IEHC 91.
51. In The Minister for Justice v. Brennan [2007] 3 I.R. 732 an attempt to impose standards of domestic procedures on foreign criminal law and sentencing procedures was rejected by the Supreme Court. The respondent absconded to Ireland having escaped from prison in the United Kingdom while serving sentences for various offences. A European Arrest Warrant was issued seeking his surrender to serve the balance of the sentence and to prosecute him for the offence of escaping from lawful custody. Since escape from lawful custody was a common law offence the maximum term of imprisonment that could be imposed was life imprisonment. The respondent claimed that if surrendered in respect of that offence he faced the imposition of a mandatory minimum sentence which constituted denial of his rights under the Constitution. It would not take into account the particular circumstances of his case, including his personal circumstances, in order to ensure that a sentence was proportionate. It was held by the Supreme Court that a judge who is satisfied that the minimum gravity requirement under the 2003 Act was fulfilled, was bound to make the order for surrender unless some other specific ground upon which an order for surrender ought to be refused was established. The trial judge in the United Kingdom was not obliged to impose a minimum mandatory sentence for the offence of escaping from lawful custody without exercising his discretion and this had been made clear in the European Arrest Warrant. In delivering the judgment of the court Murray CJ. stated:

“35. There is no doubt that the operation of the process for surrender as envisaged by the Act of 2003, as amended, is subject to scrutiny as to whether in any particular case it conforms with constitutional norms and in particular due process so that, for example, the respondent in such an application has an opportunity to be duly heard in the proceedings.

36. However the argument of the respondent goes much further. He has contended that the sentencing provisions of the issuing state, in this case the United Kingdom, did not conform to the principles of Irish law, as constitutionally guaranteed, governing the sentencing of persons to imprisonment on conviction before our courts for a criminal offence.
37. The effect of such an argument is that an order for surrender under the Act of 2003, and indeed any order for extradition, ought to be refused if the manner in which a trial in the requesting state including the manner in which a penal sanction is imposed, does not conform to the exigencies of our Constitution as if such a trial or sentence were to take place in this country. That can hardly have been the intention of the Oireachtas when it adopted s. 37(1) of the Act of 2003 since it would inevitably have the effect of ensuring that most requests for surrender or extradition would have to be refused. And indeed if that were the intent of the Framework Decision, which the Act of 2003 implements, and other countries applied such a test from their own perspective, few, if any, would extradite to this country.
38. Indeed it may be said that generally extradition has always been subject to a proviso that an order for extradition, as with any order, should not be made if it would constitute a contravention of a provision of the Constitution. I am not aware of any authority for the principle that the extradition or surrender of a person to a foreign country would contravene the Constitution simply because their legal system and system of trial differed from ours as envisaged by the Constitution.
39. The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the same objective, such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters. Not all for example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non-minor offence. Rules of evidence may differ. The fact that a person would be tried before a judge and jury in this country for a particular offence could not in my view, be a basis for refusing to make an order for surrender solely on the grounds that in the requesting state he or she would not be tried before a jury. The exceptions which we have to the jury requirement, as in trials before the Special Criminal Court, acknowledges that a fair trial can take place without a jury even though it is constitutionally guaranteed for most trials in this country.
40. That is not by any means to say that a court, in considering an application for surrender, has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be egregious circumstances, such as a clearly established and fundamental defect in the system of justice of a requesting state, where a refusal of an application for surrender may be necessary to protect such rights. It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting state according to procedures or principles which differ from those which apply, even if constitutionally guaranteed, in relation to a criminal trial in this country does not of itself mean that an application for surrender should be refused pursuant to s. 37(2) of the Act.”
41. The court is not satisfied that it should or may infer that the counts as framed are bad for duplicity under Irish law. Even if the court were satisfied that it would be impermissible to try the respondent on the counts on the indictment as drafted and handed down by the grand jury, it is not open to this Court to deny an extradition request because the rules of criminal practice, procedure and due process in the Federal Courts of the United States allow for the charges as framed to proceed. The evidence in this case does not establish the type of fundamental defect in a system of justice that might justify a refusal of an application for surrender. The court is not satisfied to refuse the application for extradition on the ground of duplicity.

Specialty

53. It is claimed that if extradited, tried and convicted, the trial judge in the United States would be allowed under Federal Sentencing Guidelines to take into account alleged conduct which was not the subject of the conviction and in respect of which he was not charged. It is claimed that he might also be subject to an “enhanced” sentence in respect of such facts. This could lead to an increase in his sentence and punishment for conduct which is outside the scope of the charges set out in the request and a breach of the rule of specialty.
54. The rule concerning specialty is set out in s. 20 of the Extradition Act of 1965 (as amended) which states:

“Subject to subs. (1A) (inserted by section 15 (b) of the Extradition (European Union Conventions) Act, 2001), extradition shall not be granted unless provision is made by the law of the requesting country or by the extradition agreement –

(a) that the person claimed shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order, or otherwise restricted in his personal freedom, for any offence committed prior to his surrender other than that for which his extradition is requested, except in the following cases…” (which do not arise in this case).

The rule of specialty is specifically provided for in Article XI of the 1983 Treaty on Extradition between Ireland and the U.S.

55. The respondent relies upon the decision of the Supreme Court in Attorney General v. Burns [2004] IESC 99 which arose from a case stated to the High Court in which the Federal Sentencing Guidelines were considered. It is an important feature of this case that the District Court heard and accepted unchallenged expert evidence on behalf of the respondent that he could be sentenced under the guidelines on the basis of conduct or offences other than those for which extradition had been sought and granted. In that case extradition was not sought in relation to a number of charges originally included in the request. The respondent submitted that the guidelines permitted a sentencing court to take the conduct underlying them and other conduct into account. The District Court, in the case stated to the High Court stated that it was satisfied that the rule of specialty applied and was enshrined in the laws of the United States and that he could therefore apply to courts in the United States to remedy any breach of his rights in this regard. The learned district judge sought the opinion of the High Court as to whether he was right in law in his determination in that regard.
56. O’Caoimh J. was satisfied that provision had been made under Article XI of the Treaty for the application of the rule of specialty and that s. 20 did not preclude the appellant’s extradition. He was also satisfied that the appellant had failed to show any basis for contending that the United States would disregard the rule in the course of the respondent’s trial. He added that

“any sentence to be imposed upon the appellant should he be convicted for any offence for which his extradition has been sought must be in respect of such offence, but the same must not preclude the court from having regard to the antecedents of the appellant in its ascertainment of the appropriate punishment in any given case.”

57. The Supreme Court allowed the appeal on this issue based on the facts as stated in the case stated. Denham J. stated:

“I am not satisfied on the facts adduced in the District Court that the rule of specialty will apply to the appellant. It is a contravention of the rule for him to be subject to a penalty for an offence other than that for which he is extradited. While this Court is bound by the findings of fact of the District Court on the law of the United States of America and may not itself, nor indeed is it competent to determine, the law of the United States of America, these findings may not be determinative of another case.

The treaty on extradition between Ireland and the United States of America specifically excludes extradition for a person to be “sentenced, punished, detained or otherwise restricted in his or her personal freedom” in the United States of America for an offence other than that for which extradition has been granted. Thus the decision in this case is specific to and based on the facts of this case as found in the District Court and may not be of precedential value in other cases.”

58. The applicant in these proceedings claims that the Burns case is of very limited application and relies upon the decision in Attorney General v. Russell [2006] IEHC 164 in which Peart J. reviewed its effect. In particular, the learned judge noted the emphasis placed by Denham J. on the fact that the decision is confined to its facts as found by the District Court and that the case may not be of precedent value in other cases.
59. In Russell the respondent raised the objection that if extradited on three charges of vehicular homicide and other charges he would also be tried in respect of an offence of bail jumping and interstate flight in respect of which his extradition was not sought or if not prosecuted, was likely to be punished for these offences. It was submitted that these were factors which could, under the law of Washington State, be taken into account by the trial judge when imposing the appropriate sentence for the extradition offences and that any enhancement of sentence on that basis amounted to punishment for an offence other than that for which his extradition was sought; this would breach the rule of specialty. The sentencing guidelines allowed for the imposition of an enhanced sentence or “an exceptional sentence” in circumstances where the judge formed the view that the sentence otherwise to be imposed would be too lenient in all the circumstances. In Russell the Chief Deputy Prosecuting Attorney in Whitman County, Washington stated that the respondent would only be prosecuted in respect of offences for which he was extradited. Peart J. distinguished the facts and circumstances of the Burns decision as follows( at p. 12):-

“On reading the judgment of Denham J. it is clear that the decision in Burns is confined to the facts as found in that particular case by the District Court. The matter came before the Superior Courts by way of a Case Stated and as such both the High Court and the Supreme Court were constrained by the finding of fact deemed to have been made by the district judge as to the law in the United States in relation to sentencing. The learned Supreme Court judge refers to the fact that the evidence of foreign law which was adduced in the District Court was that of a lawyer on behalf of the respondent only, and that there was no other evidence called by the applicant to contradict that evidence. It was on those deemed findings of fact as to US law that the learned judge considered that the district judge had erred in not releasing the respondent, but it is made clear that the case may not have any precedential value. I would readily and respectively concur with that view.”

60. Peart J. considers the scope and effect of the Burns decision. He noted that the district judge made a finding of fact to which the High and Supreme Courts were confined to the effect that under the United States law a person could be punished for an offence other than that for which his extradition was ordered. It was on that basis that relief was granted on appeal. However, he stated:

“The question which arises for determination in the present case is whether a person is in fact being punished for “an offence other than that for which his extradition has been granted” if in respect of the offence for which his extradition was granted he receives a sentence which reflects all the circumstances of that offence including the fact that he did not answer to his bail. If that be the position, does it follow also that extradition would have to be refused, if a person whose extradition is sought for an offence, has previous convictions in the requesting state either for the same type of offence or different offences, since such a person in all probability would receive a heavier sentence or punishment than a person who is being sentenced or punished for a first offence? I do not believe so. Mr. O’Connell argues that this is not the position since it is only in respect of unindicted conduct that is taken into account that there would be a breach of the rules. But in my view that is not what is stated in Article XI, which refers specifically to any other offence, and makes no reference to conduct as such.

I am satisfied that the words used in the Treaty mean simply what they say, which is, for the purposes of this particular issue, that a person must not be punished in respect of any offence other than the offence for which extradition was granted.

But I am satisfied that under the Sentencing Guidelines, a trial judge may enhance a base level sentence for the extradition offence, or indeed impose an exceptional sentence in circumstances where in all the circumstances he/she considers the sentence under the Guidelines to be too lenient, and that such upward movement in the level of sentence can take account of other conduct of the respondent, including conduct which may have its factual background in the non-extradition offences, whether offences for which extradition was actually refused or not, or even uncharged and unproven conduct. In the present case I am satisfied that such matters have the capacity to enhance the respondent’s sentence should he be convicted. The extent by which any sentence may be enhanced does not really matter as far as my decision is concerned.

But I am also satisfied that the taking into account of such other conduct for the purpose of calculating or arriving at the appropriate sentence or punishment for the extradition offence, even if it could give rise to another offence if charged, does not amount to punishment for another offence, but is simply a process by which the appropriate sentence for the extradition offences is arrived at. It is not therefore a breach of the rule of specialty.”

61. The learned judge was also satisfied that though the Sentencing Guidelines permitted upward movement from a base level sentence, they did not thereby effect a breach of specialty since whatever penalty was imposed as the appropriate sentence in respect of the extradition offence would take into account all matters relevant to the level of sentence. It was not punishment imposed in respect of a non-extradition offence. Peart J. relied on two persuasive English decisions on this point R (Bermingham and others) v. Director of the Serious Fraud Office [2006] All ER 268 and Welsh and Thrasher v. Secretary of State for the Home Department [2006] All ER 289 which dealt with the same issues in a manner of which he approved and applied.
62. The Supreme Court upheld and approved the judgment of Peart J (Attorney General v Russell unreported Supreme Court; ex tempore, 13th October 2006). A similar argument was rejected by Donnelly J. in Attorney General v. Damache [2015] IEHC 339 at paragraph 7.5.7. applying the principles in Russell.
63. The respondent has chosen to address this matter by way of legal submission rather than expert evidence. Reliance is placed upon the Federal Sentencing Guidelines (U.S.S.G 1B 1.3) which provide (inter alia):

“In the case of a jointly undertaken criminal activity … all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity that occurred during the commission of the offence of conviction, in preparation for that offence or in the course of attempting to avoid detection or responsibility for that offence; all harm that resulted from the acts or omissions specified … above and all harm that was the object of such acts and omissions may be taken into account at the sentencing stage.”

64. Thus the respondent fears not only that he may be punished for matters in respect of which he is not extradited but that matters which occur outside the period of his alleged involvement in the conspiracy may be used to enhance any sentence ultimately to be imposed upon him, if convicted. I do not consider that there is any evidence beyond the assertion made in the submissions that this is so. The only evidence in relation to sentencing guidelines indicates that they are advisory and not binding upon the judge imposing sentence who retains a full judicial discretion in that regard. Indeed a claim made in the submission that this may result in some form of disproportionate sentence is not borne out by the sentence which was actually imposed on one of Mr. Davis’s co-defendants, a Mr. Nash who was also alleged to have served as a member of the Silk Road customer support staff and received a sentence of seventeen months imprisonment and was not involved for the full duration of the alleged conspiracy. In the circumstances I am not satisfied that the respondent’s extradition would breach the rule of specialty.
65. I also reject the submission that the applicant will be exposed to a potential mandatory sentence in respect of Count 1 which would be unfair, disproportionate or unconstitutional if applied in this jurisdiction on the basis of the principles set out in the Stapleton case.

Failure to Prosecute

65. The respondent submits (notwithstanding some inconsistency with the grounds advanced concerning correspondence) that extradition should not be granted because the offences with which the respondent is charged were allegedly committed in Ireland. Previously, s. 15 of the Extradition Act 1965, precluded the extradition from Ireland of a person charged with an offence which was committed in the State. I am satisfied that s. 15 has no application in this case. In order to have any application, the offence for which extradition is sought must be an offence “wholly” or “entirely” committed in Ireland (see Attorney General v. Pocevicius [2015] IESC 59). Clearly, the affidavits submitted contain evidence of commission of the offence in the United States, including evidence of undercover operations in the course of which contraband materials were supplied to agents in the United States. Section 15 of the 1965 Act no longer applies having regard to its substitution by section 27 of the Extradition (Amendment) Act 2012. This precludes extradition if a prosecution is under consideration or pending in Ireland. Furthermore, there is no evidence of any refusal by the Director of Public Prosecutions to prosecute offences in Ireland and no challenge by way of judicial review to any such decision (see Damache v. DPP [2014] IEHC 114). In addition, though the respondent claims that the former s. 15 applies because the alleged conspiracy dates back to 2011, the indictment restricts the alleged involvement of the respondent as site administrator to between 6th June, 2013 and 2nd October, 2013. I am satisfied that there is no substance in this ground.

Health Issues

66. In paras. 17 to 20 of the points of opposition the respondent claims that he has Asperger’s Syndrome and a “depressive” and/or “generalised anxiety” disorder. He claimed that since childhood and throughout his adolescence he has exhibited symptoms of Asperger’s Syndrome. It is submitted that his extradition, as a person living with this syndrome and suffering from mental ill health, would place his health and life at grave risk. The applicant is fearful of the effect of prison conditions upon his health if subjected to pre-trial detention or post conviction imprisonment. He does not anticipate that he will be released on bail if extradited because he has no right to reside or work in the United States, no means to support himself while there and no address at which to stay. He believes that he will be imprisoned in a maximum security facility pending trial, and following his conviction, and that conditions in such a facility will have a highly damaging effect on his mental health. It is also submitted that he would be subjected to an unlawful and unconstitutional sentencing process and a penal regime, which, if applied in Ireland would constitute a violation of his fundamental rights and in particular Articles 38, 40.3 and 40.4 of the Constitution. It is also claimed that his imprisonment in such facilities would be contrary to the rights guaranteed under Articles 3 and 8 of the European Convention on Human Rights and/or the provisions of the European Convention on Human Rights Act 2003.
67. The respondent’s challenge to the proposed extradition is not a generalised challenge to the prison conditions that exist in federal prisons in the United States or in a particular prison, but is focused upon his mental vulnerabilities, health and the effect of incarceration upon him as a person who lives with Asperger’s Syndrome.
68. Section 11 of the 1965 Act prohibits extradition for an offence which is a political offence, or one connected with a political offence, if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion or that person’s position may be prejudiced for any of these reasons. The section also provides that extradition should be refused if there are substantial grounds for believing that, if granted, the person may be subjected to torture. In addition, extradition must be refused if the evidence establishes that there is a substantial or real risk that the respondent’s fundamental constitutional rights will be breached or not adequately protected or that it would give rise to a real risk of a breach of his Convention rights.
69. In Finucane v. McMahon [1990] 1 I.R. 165 the Supreme Court was satisfied that the applicant had demonstrated that there was a probable risk of ill treatment if he were returned to the Maze Prison in Northern Ireland and ordered his release in order to ensure that his constitutional rights and in particular his right to bodily integrity under Article 40.3 of the Constitution were protected.
70. In this jurisdiction the duty of the prison authorities to protect a prisoner’s constitutional personal rights of health and bodily integrity was considered in The State (C) v. Frawley [1976] I.R. 365. The applicant, who suffered from a severe sociopathic disorder which caused him to commit acts of self injury and resulted in the prison authorities subjecting him to a rigorous regime for his own safety, applied for release under Article 40 on the basis that he was not accorded the medical attention which he desired and which expert evidence established was highly specialised and appropriate to his rare condition. Finlay P. held that the right to bodily integrity as a specified right operated to prevent an act or omission by the executive which without justification or necessity, would expose the health of a person to risk or danger. The executive had a duty “to protect the health of persons held in custody as well as reasonably possible in all the circumstances of the case …”
71. In Minister for Justice and Law Reform v. S.R. [2007] IESC 54 the Supreme Court considered whether there was a risk to the health and life of the respondent which precluded his surrender on foot of an application for extradition to the United Kingdom. It was established that the respondent had chronic impairment of heart muscle function and was at risk of developing heart failure. There was a possibility that stress could exacerbate his acute coronary disease and the medical recommendation was that it should, if possible, be avoided. The respondent underwent a number of operations which were successful but an acute coronary event “might well prove catastrophic in limiting heart function”. The court interpreted that evidence to mean that an acute coronary event was likely to result in future limitation of the heart muscle function rather than a likelihood of fatality. The court concluded on the evidence that whether on bail or in custody the respondent would receive appropriate health care. Finnegan J. (delivering the judgment of the court) stated that he was satisfied that “something much more definite by way of threat to life would be required in this jurisdiction before the courts would involve Article 40.3.2 of the Constitution and prohibit a trial” or refuse extradition. The possibility of the precipitation of acute coronary disease caused by the severe stress of surrender was insufficient to justify a conclusion that the respondent was at any real risk of dying if placed in a situation of severe stress. In an earlier case, Carne v. Assistant Commissioner Patrick O’Toole (unreported Supreme Court 21st April, 2005) the applicant, a sixty-four year old man, suffered two strokes while in prison awaiting extradition. It was submitted that the stress to which he would be subjected in facing trial would endanger his health and that his medical condition would be aggravated and his health seriously endangered if he were to be incarcerated. A considerable body of medical evidence was adduced on his behalf. It suggested that he had difficulty in recollecting events. He had a previous stroke some years earlier and a history of heart disease. The court held that his medical condition did not constitute “an exceptional circumstances” for the purposes of the then applicable s. 50(2)(bbb) of the Extradition Act 1965.
72. In Minister for Justice, Equality and Law Reform v. Johnston [2008] IESC 11 the Supreme Court rejected submissions that an application for surrender should be refused because of the respondent’s medical or psychiatric condition. It was accepted by the court that his medical condition was serious. It was clear that he understood the nature of the charges against him and was competent to instruct solicitor and counsel to follow proceedings. It was also recommended in medical reports submitted that he should be treated as a vulnerable prisoner given his reported history of significant self-harm and a recommendation was made that in the event of his surrender his psychiatric condition as well as the risks of suicide should be communicated to the appropriate authorities in Scotland. The court was satisfied that the respondent was receiving appropriate medical care in this jurisdiction which would continue until his surrender. The court noted that the authorities in the United Kingdom at all levels were obliged to protect the respondent having regard to his medical and psychiatric condition. In that case there was no evidence to suggest that he would not be fully assessed and treated for his particular medical and psychiatric difficulties upon surrender or that his mere surrender in itself would have serious medical effects.
73. In both S.R. and Johnston the Supreme Court considered the issues in the context of s. 37(1)(b) of the European Arrest Warrant Act 2003 including whether the respondents’ surrender would be in breach of their constitutional rights to life and/or bodily integrity and whether surrender would constitute a serious risk to their health. The conclusion reached by the Supreme Court in both cases was that the right to life and bodily integrity of the respondents must be considered and balanced with the State’s obligation under the Framework Decision.
74. In this case it is claimed that following the applicant’s transfer to the United States he is likely to be imprisoned in conditions which will cause serious damage to his mental health and probably his life. The onus is on the applicant to establish this threat as a matter of fact on the basis of cogent evidence. The cases of SMR and Johnston indicate the high threshold which the respondent must reach in order to satisfy the court that extradition should be refused on health grounds. The C case defines the scope of a prisoner’s constitutional right in this jurisdiction, the obligations imposed on the executive and the level of protection that Irish courts require for the protection of the rights to health and bodily integrity under Article 40.3.
75. The respondent also invokes Article 3 and Article 8 of the European Convention on Human Rights. The respondent claims that his extradition to the United States will expose him to a real risk of inhuman and degrading treatment under Article 3 and a risk to his right to private and family life under Article 8 because of the consequences of imprisonment before trial and if convicted, post-trial. It is submitted that he is perceived medically as at a heightened risk of suicide if extradited and imprisoned.
76. Article 3 of the European Convention on Human Rights provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The entitlement to protection under Article 3 is absolute and is not subject to a consideration of the proportionality of the respondent’s surrender.

77. Article 8 provides:

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

78. In Minister for Justice v. Altaravicius [2006] 3 I.R. 148 and Minister for Justice v. Stapleton, the Supreme Court recognised that extradition arrangements whether with Member States of the European Union or States outside the Union, implies a level of mutual political trust and confidence in the legal systems of the cooperating States. The existence of an extradition arrangement entitles the court to presuppose that the Government and the Oireachtas are satisfied that an Irish citizen extradited to the United States will not have his constitutional rights impaired (per McCarthy J. in Ellis v. O’Dea (No. 2) [1991] I.R. 251 at 262).
79. In Attorney General v. O’Gara [2012] IEHC 179 Edwards J. considered the approach to be taken to objections to surrender based on fundamental rights whether they arise under the Constitution or rights assured under the European Convention on Human Rights in respect of an extradition to the United States. Though the learned judge acknowledged the presumption created in European Arrest Warrant cases that the fundamental rights of a respondent will be respected if extradited, he did not consider that as strong a presumption applied in “conventional” extradition cases, to countries outside the European Arrest Warrant system. He stated:

“This is because the whole European Arrest Warrant system is built and predicated upon the notions of mutual trust and confidence between member states, and mutual recognition of judicial decisions, and there is a continuing and ongoing commitment to abide by these principles as expressed in the recitals to the Framework Decision, including Recital 12 thereto which expressly states that the Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union. … Such is the level of mutual trust and confidence in other member states … that the Oireachtas has given statutory effect to the presumption that arises … Neither the Extradition Act 1965, nor the Washington Treaty contains a comparable provision. That is not to say that no presumption at all arises, but as the Court has stated it is very much weaker and more easily rebutted than is the case under the European Arrest Warrant system. Furthermore, it needs to be emphasised that rebuttal of the presumption does not of itself establish the existence of a real risk. It merely means that the court is put on enquiry as to whether there is a real risk.”

80. Nevertheless, it is clear that there is such a presumption and the learned judge also emphasised that the principles adumbrated by the Supreme Court in Minister for Justice v. Rettinger [2010] 3 I.R. 783 applied, with some modifications, as set out at pages 54 to 56 of the judgment. These principles insofar as they are relevant to this case are as follows:

(a) The objectives of the [Washington Treaty] cannot be invoked to defeat an established real risk of ill-treatment contrary to Article 3.

(b) The court must inquire as to the level of danger to which the person is exposed.

(c) The respondent must establish that there is a real risk that he will suffer inhuman or degrading treatment. It is not necessary to establish that he will probably suffer inhuman or degrading treatment but a mere possibility of ill treatment is insufficient.

(d) The respondent bears an evidential burden of adducing cogent evidence capable of proving that there are substantial grounds for believing that if he were returned to the requesting country he would be exposed to a real risk of being subjected to treatment contrary to Article 3.

(e) If there is evidence from the applicant as to the conditions in prisons of the requesting State and no replying information, a court may have sufficient evidence to find that there are substantial grounds for believing that if returned to the requesting State he would be exposed to a real risk of treatment contrary to Article 3. It is open to the requesting State to dispel any doubts by evidence but that does not mean that the burden has shifted in respect of such conditions.

(f) The court should examine the foreseeable consequences of sending a person to the requesting State.

(g) The court may attach importance to reports of independent international human rights organisations in reaching it’s conclusion in much the same way as country of origin information is used in immigration and asylum cases.

(h) A court should examine the existence of a real risk by way of rigorous examination of the material before it and if necessary material obtained of its own motion.

81. In Minister for Justice and Equality v. I.S. [2015] IEHC 36 Edwards J. set out a number of principles relevant to the approach which a court should adopt when it is alleged that the surrender of a person suffering from mental health difficulties would breach that person’s Article 8 rights, as follows (at pages 51-57):-

“1. The test imposed by Article 8(2) is not whether extradition is on balance desirable but whether it is necessary in a democratic society;

2. There is no presumption against the application of Article 8 ECHR in extradition cases and no requirement that exceptional circumstances must be demonstrated before Article 8 grounds can succeed;
3. The test is one of proportionality, not exceptionality;
4. Where the family rights that are in issue are rights enjoyed in this country, the issue of proportionality involves weighing the proposed interference with those rights against the relevant public interest;
5. In conducting the required proportionality test, it is incorrect to seek to balance the general desirability of international cooperation in enforcing the criminal law and in bringing fugitives to justice, against the level of respect to be afforded generally to the private and family life of persons;
6. Rather, the assessment must be individual and particular to the requested person and family concerned. The correct approach is to balance the public interest in the extradition of the particular requested person against the damage which would be done to the private life of that person and his or her family in the event of the requested person being surrendered;
7. In the required balancing exercise, the public interest must be properly recognized and duly rated;
8. The public interest is a constant factor in the horizontal sense, i.e. it is a factor of which due account must be taken in every case;
9. However, the public interest is a variable factor in the vertical sense, i.e. the weight to be attached to it, though never insignificant, may vary depending on the circumstances of the case;
10. No fixed or specific attribution should be assigned to the importance of the public interest in extradition, and it is unwise to approach any evaluation of the degree of weight to be attached to the public interest on the basis of assumptions. The precise degree of weight to be attached to the public interest in extradition in any particular case requires a careful and case specific assessment. That said the public interest in extradition will in most cases be afforded significant weight;
11. The gravity of the crime is relevant to the assessment of the weight to be attached to the public interest. …;
12. The public interest in extraditing a person to be tried for an alleged crime is of a different order from the public interest in deporting or removing an alien who has been convicted of a crime and who has served his sentence for it, or whose presence in the country is for some other reason not acceptable. This does not mean, however, that the court is required to adopt a different approach to Article 8 ECHR rights depending on whether a case is an extradition case or an expulsion case. The approach should be the same, but the weight to be afforded to the public interest will not necessarily be the same in each case;
13. …
14. In so far as it is necessary to weigh in the balance the rights of potentially affected individuals on the one hand, with the public interest in the extradition of the requested person on the other hand, the question for consideration is whether, to the extent that the proposed extradition may interfere with the family life of the requested person and other members of his family, such interference would constitute a proportionate measure, both in terms of the legitimate aim or objective being pursued, and the pressing social need which it is suggested renders such interference necessary;
15. It is self-evident that a proposed surrender on foot of an extradition … will … result in the requested person being arrested, possibly being detained in custody in this State for a period of time pending transfer to the requesting State, and being forcibly expelled from the State. In addition, he/she may have to face a trial (and may possibly be further detained pending such trial), and/or may have to serve a sentence in the requesting state. Such factors, in and of themselves will rarely be regarded as sufficient to outweigh the public interest in extradition. Accordingly, reliance on matters which could be said to typically flow from arrest, detention or surrender, without more, will be of little avail to the affected person;
16. Article 8 does not guarantee the right to a private or family life. Rather, it guarantees the right to respect for one’s private or family life. That right can only be breached if a proposed measure would operate so as to disrespect an individual’s private or family life. A proposed measure giving rise to exceptionally injurious and harmful consequences for an affected individual, disproportionate to both the legitimate aim or objective being pursued and the stated pressing social need proffered in justification of the measure, would operate in that way and in breach of the affected individual’s rights under Article 8;
17. It will be necessary for any court concerned with the proportionality of a proposed extradition measure to examine with great care, in a fact specific enquiry, how the requested person, and relevant members of that person’s family, would be affected by it. In particular, it will be necessary for the Court to assess the extent to which such person or persons might be subjected to particularly injurious, prejudicial or harmful consequences, and then weigh those considerations in the balance against the public interest in the extradition of the requested person;
18. Such an exercise ought not to be governed by any predetermined approach or by preset formula; it is for the court seized of the issue to decide how to proceed. Once all of the circumstances are properly considered, the end result should accurately reflect the exercise;
19. The demonstration of exceptional circumstances is not required to sustain an Article 8 ECHR type objection because, in some cases, the existence of commonplace or unexceptional circumstances might, in the event of the proposed measure being implemented, still result in potentially affected persons suffering injury, prejudice or harm. The focus of the court’s enquiry should therefore be on assessing the severity of the consequences of the proposed extradition measure for the potentially affected persons or persons, rather than on the circumstances giving rise to those consequences.”

These principles must be applied to the facts of any particular case which, of course, may vary.

Medical Evidence

82. The evidence adduced by the respondent concerning the state of his mental health consists of affidavits from his solicitor, Mr. McErlean, Prof. Michael Fitzgerald, Prof. Simon Baron-Cohen, from Dr. Ciara Kelly, concerning medical records, and from Ms Claire Grealey and Ms Mary O’ Doherty concerning school reports. There is also a report from an addiction counsellor exhibited in his solicitor’s affidavit. There was no affidavit by the respondent or any member of his family attesting to any of the matters set out in the reports submitted in respect of his mental state or the symptoms of Asperger’s Syndrome of which he complains.
83. The applicant was born on 27th February, 1988 and has one brother who is four years older and three sisters. He attended national school between 1992 and 2000. His record of attendance indicates an average absence of approximately twenty days out of 183 school days per annum. He then attended secondary school completing his Junior Certificate with good grades in a number of higher level papers. Thereafter, he completed his Leaving Certificate in 2006, and sought to improve his results by attending the Institute of Education in 2006/2007. He was absent for a considerable number of days and his attendance there was not a success. Thereafter, he states that he worked with his father in his engineering company in Bray for two and a half years operating machines. He was let go in 2008 or 2009. He took a computer programming language course which he completed and obtained a certificate.
84. The medical records obtained from Dr. Ciara Kelly indicated no mental health issues until 14th January, 2014. The note states:-

“Loss of motivation, low mood, difficulty sleeping, especially initial insomnia. Poor school performance from mid-teens. H/O low mood from 14y, school refusal in teens. Friend suicide when Gary was 18y, brother in law suicide when Gary was 22y. Strong FHx depressive illness. Not worked past 12+12, previously worked with father. Reports ‘lack of empathy’, ‘excessive computer use’.”

85. The general practitioner consulted raised the question whether Mr. Davis had an unspecified organic or symptomatic mental disorder or depressive illness and the issue of Asperger’s Syndrome. He was referred to Prof. Michael Fitzgerald, Consultant in Child and Adolescent Psychiatry. Prof. Fitzgerald’s report was received in the practice on 27th January, 2014, and he prescribed Fluoxetine to Mr. Davis for depression.
86. It is clear that the report prepared by Prof. Fitzgerald was in the context of a court case then pending in which Mr. Davis was charged with and pleaded guilty to a charge of possession of cannabis of a value “just under” €10,000 with intent to sell or supply. Mr. Davis later explained to Prof. Kennedy that Prof. Fitzgerald prepared and furnished a report for use in the Circuit Criminal Court at his sentencing hearing. He said that he was a user of cannabis who had developed large debt as a result of which he was selling cannabis to his friends. He said he owed €5,000. He received a three year suspended sentence in June 2015. His solicitor arranged for him to give voluntary tests over a period of time to the Community Addiction Response Programme (CARP) in Tallaght. He was arrested outside his residence with approximately €3,500 cash in his possession and in the course of a search, he directed the Gardaí to a suitcase in his wardrobe which contained the cannabis.
87. Michael Fitzgerald in a short report dated 21st January, 2014 based on an interview with the respondent and his sister wrote:-

“This is to say that I saw Gary with his sister Natalie who is fifteen years older than he is. What emerged from the interview is that he meets the criteria for Asperger’s Syndrome ICD10. He also has Depressive Disorder and Generalised Anxiety Disorder. The depression is of very long standing and has never been treated with medications like Fluoxetine 20mgs daily. He does worry every day, finds it hard to control the worry, the worry puts him on edge, affects his sleep, makes him lethargic, affects his sleep and concentration and this would be Generalised Anxiety Disorder.

In terms of depression he has low energy, poor concentration, poor appetite. In terms of Asperger’s Syndrome ICD10, this has been evident since childhood and based on the history from himself and his sister there were problems in the past reading non-verbal behaviour, his own non-verbal behaviour was reduced and indeed described by his sister as blank. He is described as a loner, problems with social know how, naive and immature. He has narrow interests, obsessed with computers, so much that growing up he would soil himself rather than go to the toilet because he was so fixated on the computer.

Problems sharing, controlling and dominating, speaks with a monotonous tone of voice, preservation of sameness, sensory issues. This gives you Asperger’s Syndrome ICD10 which could be helped by pragmatic language therapy, social skills therapy, mind reading skills therapy, help in social know how, help in seeing things from other people’s perspective.

His depression could be treated with Fluoxetine 20mgs daily.

In terms of his current difficulties with the law, it emerged that when he was eighteen, he had to cut a man down who had completed suicide. More recently, his brother in law also completed suicide and this brought back all the traumas of the first suicide. This led to his developing post traumatic type symptoms with poor sleep, excessive drinking and cannabis use. This was the precipitating factor which led him to be apprehended by the Gardaí and which he is currently in court. Since then he has gone to counselling and has not used cannabis since.

I would be extremely grateful that these various factors could be taken into account during the court case.

He is a person who is naive and immature and his Asperger’s disability leads to doing things that are inappropriate and not fully realising it.

In addition, the two suicides had a severe effect on his personality and it was really the second suicide which reactivated the memories of the first suicide that sent him down on this path of trying to deal with his psychological problems using cannabis and alcohol…”

88. The professor gave him the names of people who engage in Asperger type therapy. There is no evidence to suggest that this was availed of at any stage. There is no suggestion in the report of any particular risk to Mr. Davis if the Circuit Court were to impose a sentence of imprisonment upon him following his guilty plea in respect of this very serious offence or any particular difficulty that imprisonment might present to his mental health. The court imposed a suspended term of imprisonment.
89. At an earlier stage, between 26th January and early June 2012, Mr. Davis attended the All Trust Centre, Bray with Mr. Donal Kiernan, an Addiction Counsellor and Psychotherapist. This is the period of counselling referenced in Prof. Fitzgerald’s report. He presented seeking help for cannabis abuse and episodic alcohol misuse. He was suffering from depression and was isolated from people. He was spending a lot of time on his computer. He had, at that stage, a criminal charge pending for possession of cannabis. He said that he ceased attending school due to bullying and harassment when he was about fourteen or fifteen years old and found comfort in computers and playing games. He outlined a traumatic incident in which he had been asked at age seventeen to assist in the taking down of a body of a young boy who had committed suicide. He was depressed about the later suicide of his brother in law. Mr. Kiernan believed that he was genuine in his attempts to get help for his cannabis use and episodic drinking. He concluded that this use was an attempt to self medicate the experiences of school and the self inflicted deaths of the young boy and his brother in law. Since he consistently missed the nuances of conversational relationships, it came as no surprise to Mr. Kiernan that he was diagnosed with Asperger’s Syndrome. His report is dated 20th November, 2015. Mr. Kiernan had ten to twelve sessions with Mr. Davis.
90. Davis’ medical records indicate that he attended his general practitioner on a number of occasions in 2015, complaining of low mood and anxiety arising out of the extradition proceedings. He was given medication to address anxiety disorder. His Circuit Court case was also pending at the time. There was no attendance between 10th March, 2015 and 1st September, 2015. On 7th September, 2015, Mr. Davis attended his doctor seeking a print-out of his case practice notes. I note that these were unavailable to the court or indeed, Prof. Kennedy until the court specifically requested that they be obtained during the course of this hearing.
91. On 28th October, 2015, his mood was noted to be very low and his subjective symptoms were that he was “down, low, expressing ideas of suicide, no current intent”. This was a reference to his increased fears regarding extradition to the United States. There are no other entries recording his attendance.
92. Simon Baron-Cohen, is Professor of Development Psychopathology at Trinity College, Cambridge. He submitted a number of affidavits on behalf of the respondent. In his first affidavit, having conducted his own assessment, he agreed with the diagnosis carried out by Prof. Michael Fitzgerald, whom he acknowledged to be a well known expert in Asperger’s Syndrome, that Mr. Davis had Asperger’s Syndrome. The professor conducted his assessment with Mr. Davis on 6th November, 2014 and it was, like Prof. Fitzgerald’s report, based on information received from Mr. Davis and his sister and a test completed by his mother.
93. Cohen noted the account give by Mr. Davis’ sister, Natalie, who has a sixteen year old son who also suffers from Asperger’s Syndrome. He considered her to be a good source of information because of her experience with the syndrome. She gave her view that her brother showed signs of AS throughout his life. She was fifteen years older than him. She reported that Mr. Davis was bed wetting until his teenage years and that he would soil himself when on his computer because he became so obsessed with it that he could not stop to go to the bathroom. He developed scabs on his legs through soiling himself. She said that he was the fifth child and did not respond to reward or punishment. He had inflexible behaviour and always wanted things his own way. He would become very angry if he had to change or compromise. He would have frequent temper tantrums when he was younger. He resisted change and liked things the way they were. He showed highly repetitive behaviour. She reported that he had no friends as a child and was verbally bullied in fourth class. He used to spend sixteen hours per day on the computer and not sleep more than four hours from about 2-3am. Prof. Cohen indicated that these were classic signs of AS.
94. Davis furnished a history to Prof. Cohen. He stated that he did not make eye contact and does not interact with people in the normal way. He avoids noisy social situations and did not have friends at school. He said he dropped out of school at the age of sixteen years. He explained his obsession with computers and the fact that he spent all his time playing games. He described some obsessive behaviours such as wiping his feet before bed every night. He had difficulty tolerating background noise. Prof. Cohen noted that these symptoms, social difficulties, obsessions and sensory issues were classic signs of AS.
95. Davis reported to Prof. Cohen that he had attempted suicide at age sixteen by taking an overdose of pills which he vomited up. He said that he had been traumatised by his brother in law’s suicide in January 2011. He said when he was eighteen years old, he had to assist in the removal of a man who had hanged himself who was his neighbour’s friend. He said that he was depressed and took Fluoxetine which was reduced from 20mg to 10mg per day. After his brother in law’s death, he abused cannabis but because it made him more depressed, he went to an addiction counsellor. Prof. Cohen noted that depression is not a sign of Asperger’s Syndrome but is a common consequence of it and indicated that Mr. Davis was “at risk”. He also noted the family history as reported by Mr. Davis, that his father (an engineer) had signs of AS and that his grandmother had depression as did his mother, her two sisters and five brothers and his sisters. He believed that this increased his risk level for “mental illness and risk of suicidality”.
96. Davis reported that if he were extradited he would not be able to cope and his depression would worsen because he would lose his family support. He said he is terrified of extradition because he would be placed in solitary confinement. Prof. Cohen comments as follows:-

“Given his fear of extradition and fear of solitary confinement, I am very concerned of the risk to Gary’s mental health of being placed in a US prison. Given he has had depression since at least aged sixteen, and remains depressed, there is a significant risk that he will deteriorate further if extradited. He has highlighted that he would lose his family support upon which he is highly dependent. As a man with AS, he would also experience high levels of stress in a US prison, because of the sensory overload (prisons are very noisy environments), the unfamiliarity (people with AS often experience a breakdown when their environments change unexpectedly), and because he may be vulnerable as a potential victim of bullying by other prisoners because of his odd social behaviour. He would also likely be less able to defend himself against such victimisation because people with AS, … lack the ‘street smarts’ or social skills to evade or resist aggression.”

97. Baron-Cohen concluded his report with the following opinion:-

“There is no doubt in my mind that Asperger’s Syndrome is the correct diagnosis for Gary. He remains at suicidal risk. He claims he is innocent and that it is a case of mistaken identity. In my opinion, requiring him to be extradited to stand trial in the US would pose a serious risk to his mental health and would be totally inappropriate for such a vulnerable young man with this disability.”

98. The court sought further information on Mr. Davis’ condition from Prof. Baron-Cohen who helpfully supplied an additional affidavit in response. The professor was asked to indicate the level of severity of Mr. Davis’ Asperger’s Syndrome. He stated that in his original report he noted that Mr. Davis’ score on the Autism Spectrum Quotient was extremely high, on the Empathy Quotient, it was extremely low and on the Childhood Autism Spectrum Test (completed by his mother), it was extremely high. The scores achieved were not marginal but were “the most extreme scores I had seen”. He stated:-

“In my opinion, his Asperger’s Syndrome is very severe in that he struggles to live independently, depends to a great extent on his family, (in) particular his sister, and his Asperger’s Syndrome affects his social judgment so that he ends up in situations that could be misinterpreted by others to his detriment. Most worrying are his levels of depression that as mentioned earlier are not uncommon secondary consequences of his Asperger’s Syndrome. This is not just at ordinary levels of sadness, but are signs of serious mental ill health. As for how this might affect his ability to be extradited, it is clear that he feels extradition would be impossible and that extradition could precipitate a suicide attempt.”

99. He remained very concerned about Mr. Davis’ mental health and assumes that the length of time the legal case was taking would exacerbate his depression and add extreme stress and unpredictability, “the latter being toxic for someone with Asperger’s Syndrome”. He was asked to comment on how a US prison might affect Mr. Davis and stated that he was aware that US prisons can offer patients with mental health issues relevant psychiatric support but considered this to be irrelevant:-

“…because the very idea of leaving his family and leaving Ireland is causing Gary such stress, as well as his fears of how he would be treated in a US prison, that in my opinion there are grave risks in trying to extradite him.”

He read a report entitled “GAO-12-743 Bureau of Prisons: Growing Inmate Crowding Negatively Affects Inmates” and was concerned that since Mr. Davis could not cope with social crowds, the experience of prison would be extremely stressful and “could trigger a suicide attempt”.

100. Baron-Cohen helpfully exhibited a copy of an article which he co-authored on “Suicidal Ideation and Suicide Plans or Attempts in Adults with Asperger’s Syndrome attending a Specialist Diagnostic Clinic: a Clinical Cohort” (Lancet Psychiatry, 2014). This was a survey of data from adults newly diagnosed with Asperger’s Syndrome at a clinic between January 2004 and July 2013 in England. The rate of suicidal ideation in the sample was compared with published rates of suicidal ideation in the general population. Associations between depression, autistic traits, empathy and the likelihood of suicidal ideation and suicide plans or attempts were also assessed. The study found that adults with Asperger’s Syndrome were significantly more likely to report life time experience of suicidal ideation than were individuals from a general UK population sample, people with one, two or more medical illnesses or people with psychotic illnesses. Compared with people diagnosed with Asperger’s Syndrome without depression, people with Asperger’s Syndrome and depression were more likely to report suicidal ideation and suicide plans or attempts. It was concluded that the study lent support to anecdotal reports of increased rates of suicidal ideation in adults with Asperger’s Syndrome and depression as an important potential risk factor for suicidality in adults with this condition. The article concluded that on the basis of these findings, services should be alerted to the high lifetime risk of suicidal ideation and suicide plans or attempts, especially in individuals receiving a late diagnosis of Asperger’s Syndrome, in view of the substantial risk in this group.
101. McErlean stated in his affidavit, that Mr. Davis instructs him that he finds the prospect of being taken away from his family and girlfriend, as “absolutely terrifying” as this is the only place where he feels comfortable. He instructs his solicitor that he is not mentally strong enough to cope with the pressures of the judicial or penal system as it operates in the United States nor its likely oppressive effects on him as a person with Asperger’s Syndrome.
102. Davis was also examined by Prof. Harry Kennedy, Consultant Forensic Psychiatrist and Executive Clinical Director of the Central Mental Hospital and Professor of Forensic Psychiatry at Trinity College Dublin. He also interviewed Mr. Davis and his sister, Natalie Davis. He took a family history. Mr. Davis informed him that his eldest sister, Natalie, was fifteen years older. She lived nearby with her four children. She had trained as a psychiatric nurse and subsequently ran a Montessori school. She now works as a teacher/tutor in a special scheme for early school leavers. Her eldest son has Asperger’s Syndrome and her youngest son had Attention Deficient Hyperactivity Disorder. Mr. Davis indicated that she had been a great help to him because of her own experience of Asperger’s Syndrome. He gave a similar history of depression within the family to that described by Prof. Baron-Cohen.