The High Court has refused Eric Eoin Marques’s application for discovery of departmental memoranda concerning the Minister for Justice and Equality’s decision to surrender him to the United States. The ruling concerns disclosure in his judicial review proceedings; it does not decide the substantive challenge to the surrender order.
Marques is sought by the United States for prosecution over four alleged offences relating to the advertisement and distribution of child pornography. He was arrested in Ireland in August 2013. Earlier courts ordered his committal for extradition, dismissed his appeal and refused further leave to appeal. The Minister ordered his surrender on 1 June 2017.
In the judicial review, Marques seeks to quash that order and challenge the Minister’s handling of the Director of Public Prosecutions’ decision not to prosecute him in Ireland for offences arising from the same acts. He also says the Minister failed to give adequate reasons and failed to consider relevant matters. The Minister’s position, as set out in correspondence and pleadings, is that she considered the matters Marques raised and that it was neither necessary nor appropriate to seek an explanation from the independent DPP.
Marques sought departmental memoranda about the Minister’s consideration of surrender, including advice or recommendations. He argued the documents could show whether she considered relevant matters, applied her discretion under the Extradition Act 1965 properly, and followed fair procedures. He also argued that disclosure could assist with a proportionality challenge and save court time.
Ms Justice Donnelly said discovery in judicial review is available but generally requires a demonstrated need tied to the pleaded issues. She found that the central claims about the Minister’s failure to seek the DPP’s reasons and the adequacy of the Minister’s stated reasons could be argued without the memoranda. The other grounds, she said, were unsupported by a sufficient factual basis at this stage or were matters for the substantive hearing. The judge also noted that a broader claim to a right of access to the departmental file had not been clearly pleaded.
The court concluded that Marques had not shown that withholding the documents would put him at a litigation disadvantage, and described the request as a fishing exercise. It refused discovery. The judge said the decision did not determine whether the absence of the memoranda could be raised at the substantive hearing, or whether a remedy might then be appropriate. The court directed that the judicial review proceed to a substantive hearing, with an issue paper and exchanged submissions; it was to hear the parties on timing and procedure.