The Court of Appeal has dismissed Eric Eoin Marques’s appeal against an order committing him to prison pending a decision by the Minister for Justice on his extradition to the United States.
The appeal concerned an order made by the High Court on 16 December 2015 under section 29 of the Extradition Act 1965. Marques’s single remaining ground was that, if extradited and convicted in Maryland, he could face a US sentencing process in which a judge may consider uncharged or acquitted conduct and apply a lower standard of proof than the criminal standard.
The appeal court reviewed affidavit evidence from US defence attorney Joshua L. Dratel, who described the possible use of sentencing enhancements based on conduct proved on the balance of probabilities. He outlined potential sentence calculations, including a possible enhancement linked to financial gain. The Attorney General’s witness, US prosecutor Keith A. Becker, disputed the reliability of predicting Marques’s sentence before trial, describing Dratel’s projections as speculative.
The High Court had found a real risk that financial gain could be considered at sentencing on the lower standard of proof, but concluded that this did not amount to a real risk of a flagrant denial of justice. It also found that the evidence did not establish more than the possibility that acquitted conduct would affect the sentence.
Delivering judgment on 12 December 2016, Mr Justice Michael Peart said the fears about what evidence would be presented at trial and what might later affect sentencing were speculative. The court could not assume that evidence of financial gain would be absent from the prosecution case. If a jury convicted, the verdict would not reveal which evidence it had accepted or rejected.
The court also held that, even if additional conduct were considered at sentencing on the balance of probabilities, that possibility did not meet the “very high” threshold for showing a real risk of a flagrant denial of justice. Differences between US and Irish sentencing procedures, including the possible use of hearsay, were not enough on their own to require extradition to be refused.
The Court of Appeal dismissed the appeal. The order committing Marques to prison pending the Minister’s extradition decision therefore remained in place; the appeal court did not itself order his extradition.