The High Court has refused Daniel Mullan’s application for judicial review seeking to require the Director of Public Prosecutions (DPP) to consider prosecuting him in Ireland for offences included in a United States extradition request. The court also refused an order requiring the State respondents to obtain or help obtain the US investigation file.
In a judgment delivered on 22 October 2018, Ms Justice Aileen Donnelly held that the application was out of time and that relevant case law had not been disclosed when leave for judicial review was sought. She also concluded that Mullan had not established a right to have his case considered for prosecution. The court refused all the reliefs sought. It did not decide the extradition request in this judgment.
The US request concerned four alleged offences: sexual exploitation of a child between 1999 and 2006; transporting a minor with intent to engage in sexual activity in or about December 1999; and two counts of possessing child pornography between January 2014 and August 2017. The judgment says the first two were alleged to have occurred in New York and elsewhere, including outside the US, while the possession counts were alleged to have occurred in New York. These remain allegations described in the extradition request.
Mullan was arrested in Ireland on 16 October 2017 under an extradition warrant after being released from prison. He had served a sentence imposed following his extradition from the US to Ireland for prosecution over child sexual assault and possession of child pornography offences in Ireland between 2000 and 2005.
His solicitor asked the DPP in February 2018 to consider prosecution in Ireland. The DPP replied that no investigation file had been sent by An Garda Síochána, her office was not considering proceedings, and it had no investigative function. The Chief State Solicitor’s Office later said that neither the DPP nor the Attorney General had a role in obtaining files from foreign law enforcement agencies where US proceedings had already been instituted.
The judge found that Mullan knew by November 2017 that the US offences were the subject of an investigation there, and that he had not applied to extend the time limit for judicial review. She said that even if an extension had been sought, the explanations offered did not provide good and sufficient reason for delay.
On candour, the judge found that the Court of Appeal’s decision in Marques v DPP was highly relevant to the claimed right to be considered for prosecution, but had not been brought to the judge’s attention at the ex parte leave hearing. The Marques decision had held that there was no right to be prosecuted in Ireland. The court refused relief on that basis and, considering the substance as well, found that Mullan had not proved a right to consideration for prosecution or its violation.