The Court of Appeal has set aside Part 12 of a High Court judgment concerning whether the Director of Public Prosecutions had to consider possible jurisdictional issues under the Criminal Justice (Terrorism Offences) Act 2005 before deciding whether to prosecute Ali Charaf Damache.
In a judgment delivered by Mr Justice Hedigan on 12 April 2018, the court allowed the State’s appeal to that extent. It held that the High Court had gone beyond the limited grounds on which the Supreme Court had granted leave for judicial review. The Court of Appeal did not remit the issue to the High Court.
The High Court’s Part 12 had concluded that the DPP was required to consider whether another EU member state might have jurisdiction over the alleged offences. It said Sweden might assert jurisdiction in connection with an alleged plot involving Swedish cartoonist Lars Vilks. Those were High Court observations, not findings by the Court of Appeal on whether the Act imposed such a duty or whether Sweden had jurisdiction.
The appeal court said the judicial review grounds allowed by the Supreme Court concerned whether the DPP’s decision was reviewable and whether she had to give reasons for it. They did not include whether the DPP had duties under the 2005 Act when considering prosecution. No leave had been sought to add that issue, and the parties had not had notice or an opportunity to make submissions on it.
The High Court had made conditional orders quashing the DPP’s decision not to prosecute Damache, subject to the outcome of appeals in the extradition proceedings. The Court of Appeal’s ruling addressed the additional Part 12 findings concerning the 2005 Act; it did not determine the underlying question of any duty under that Act.
The judgment recounted that the United States had sought Damache’s extradition on charges described in the request as terrorism-related. The Court of Appeal said he had travelled from Ireland to Barcelona after being released, was arrested there under a US extradition warrant, and was extradited to the United States in July 2017. At the time of the appeal judgment, he was awaiting trial in a federal prison in Philadelphia.
Given his situation in the United States, the court said there was no practical purpose in sending the matter back to the High Court. Any issue arising under the 2005 Act would have to await further consideration, with all parties given the opportunity to present arguments in pleadings and written and oral submissions.