The High Court has refused Ali Charaf Damache leave to bring a second judicial review challenge over the Director of Public Prosecutions’ refusal to reconsider a 2011 decision not to prosecute him in Ireland.
Mr Justice Edwards ruled on 28 February 2014 that the proposed grounds did not meet the threshold of arguability. The court was deciding only whether the applicant could proceed with a judicial review; it did not decide the pending extradition case or order his extradition.
The challenge followed a US request for Mr Damache’s extradition over alleged terrorism-related offences. The extradition proceedings were pending before the High Court and had been adjourned while related proceedings, including this application, were dealt with. The committal hearing had opened but remained part heard.
Mr Damache’s solicitor asked the DPP in October 2013 to reconsider the decision, citing the extradition request and material about the possible consequences of extradition. In a letter dated 28 January 2014, the DPP said there had been no further consideration since the original decision and that the solicitor’s letter raised no additional matters warranting reconsideration. The DPP also declined to give reasons for the original decision not to prosecute.
The applicant argued that the DPP should reconsider in light of the changed extradition law, the US request and the consequences he said he could face if extradited. He also sought reasons for the decisions. These were claims advanced in support of leave, not findings by the court.
Mr Justice Edwards said the law in force when the DPP decided not to prosecute in March 2011 barred extradition for offences regarded as committed in Ireland. A 2012 amendment later replaced that absolute territoriality bar with a more limited rule. The judge said the change and the later extradition request did not, by themselves, require the DPP to revisit the earlier decision.
The court said forum considerations might be relevant to parts of the DPP’s assessment in some cases, including public interest and evidence availability. But the DPP did not have power to choose between the courts of different countries, and the judge found that the arguments advanced could not make reconsideration assist this applicant. He also noted that forum issues might arise in the extradition proceedings when connected to a recognised legal bar, including a claimed breach of personal rights.
The judge refused leave on all proposed grounds. The judgment did not determine whether extradition should be granted; that remained for the separate proceedings.