H308
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> The Attorney General -v- Snowden [2013] IEHC 308 (06 July 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H308.html Cite as: [2013] IEHC 308 |
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Judgment Title: The Attorney General -v- ![]() ![]() Neutral Citation: [2013] IEHC 308 High Court Record Number: 2013 168 EXT Date of Delivery: 06/07/2013 Court: High Court Composition of Court: Judgment by: Mac Eochaidh J. Status of Judgment: Approved |
Neutral Citation Number: [2013] IEHC 308 THE HIGH COURT [2013 168 EXT] BETWEEN THE ATTORNEY GENERAL APPLICANT EX TEMPORE JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 6th day of July 2013 This is an application pursuant to s. 27 of the Extradition Act 1965 for a provisional Arrest Warrant in respect of The request is one which contrasts with a request for a warrant where an extradition request has been made and where the Minister certifies the existence of that request. Section 26(1)(a) of the 1965 Act provides that if the Minister receives a request for the extradition of any person, he shall, subject to the provisions of the section, certify that the request has been made. In s. 26(1)(b) of the 1965 Act, the parameters of the High Court’s jurisdiction in relation to arrests following an extradition request is set out. The sub-section provides that on production to a judge of the High Court of a certificate of the Minister under paragraph 1(a) stating that a request referred to in that paragraph has been made, the judge shall issue a warrant for the arrest of the person concerned. That is in contrast with the power of the High Court under s. 27(1) which provides that a judge of the High Court may, without a certificate of the Minister under s. 26(1)(a), issue a warrant for the arrest of any person on the sworn information of a member of An Garda Síochána not below the rank of Inspector that a request for a provisional arrest of that person has been made on the ground of urgency. The key and obvious point of contrast is that under s. 27(1), the court has discretion whether or not to issue a provisional Arrest Warrant whereas an arrest warrant must issue if sought where the Minister certifies that an extradition request is extant. The parameters of the court’s discretion are set out in the section itself. The court is required to ensure that certain matters are contained in the request for a provisional Arrest Warrant from the foreign country. Before I describe what the minimum content of a request for a provisional warrant is it is useful to recall that in s. 25 of the Act, there is also a minimum content requirement for an extradition request. Section 25 provides that:
(a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or, as the case may be, of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting country; (b) a statement of each offence for which extradition is requested specifying, as accurately as possible, the time and place of commission, its legal description and a reference to the relevant provisions of the law of the requesting country” [Emphasis added] In respect of Mr. In this respect, what one is looking for in the request from the United States is a statement that one of the documents, in this case the warrant of arrest, exists. I am satisfied that at page 2 of the request, the Embassy of the United States, states that “on 14th June 2013, a warrant for the arrest of Mr. The provision then goes on to require that the request shall be accompanied by a statement of the offences to which the request relates, specifying the nature and description under the law of the requesting country of the offences concerned. On the first page of the request from the Embassy of the United States of America, the legislative provisions creating the criminal offences which Mr. The question for the court is whether that is a statement of the offences to which the request relates which specifies the nature and description under the law of the requesting country of the offences concerned. I am satisfied that that statement of the offences and the description of them satisfies the requirement of s. 27(2A)(b) of the 1965 Act. I should also say that counsel for the Attorney General in this case has submitted through witnesses tendered to the court a number of documents which were used to obtain the arrest warrant in the United States of America. In that context, an affidavit was sworn by a US Official under seal. That affidavit appears to have been sworn for the purposes of establishing probable cause that the offences were committed. Paragraph 3 of the affidavit says that the affidavit is submitted in support of a criminal complaint alleging breaches of 18 USC 793, 798 and 641. The deponent says that because the affidavit has been submitted for the limited purposes of establishing probable cause for the accompanying complaint, not every fact known concerning the investigation is included. At paragraphs 11, 12 and 13 of the affidavit, the deponent sets out in full the provisions of 18 USC s. 793(d), 18 USC s. 798(a)(3) and 18 USC s. 641, those being the offences of unauthorised disclosure of national defence information and the unauthorised disclosure of classified communication intelligence and theft of government property, respectively. I am also satisfied that that statement in that affidavit constitutes compliance with the requirements of s. 27(2A)(b) being a statement of the offences to which the request relates specifying the nature and description under the law of the requesting country of the offences concerned. Section 27(2A)(c) is the next sub-section of the provision, compliance with which I must ensure. It is complex and has a number of different elements in it. The section provides that the request shall specify:
(ii) the time the offences were alleged to have been committed; (iii) the place of the commission of the alleged offences; and (iv) the degree of involvement of the person in respect of whom the request is made in the commission of the alleged offences. The first matter to be looked at is whether the circumstances in which offences were said to have been committed are set out in the request. In this respect, I refer to page 2 of the request delivered by the United States Embassy to the Department of Foreign Affairs which has the following text:
![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() Between on or about 5 June 2013 and 9 June 2013, classified information was published on the Internet and in print by multiple newspapers including the ‘Washington Post’ and the ‘Guardian’. The articles and Internet postings by the ‘Washington Post’ and the ‘Guardian’ included classified documents that were marked ‘Top Secret’. The ‘Washington Post’ and the ‘Guardian’ later revealed that I am satisfied that in respect of item one, which is the circumstances in which the offences were committed, and item four, the degree of involvement of Mr. The second matter of which I have to be satisfied, is whether the request specifies the time when the offences took place. Counsel for the Attorney General has urged upon me that there is adequate information in respect of the time when the offences took place by reference to the timeframes which are in the request and that is the beginning of Mr. Not without some hesitation, and having considered the matter carefully, it appears to me that there is adequate information about the time within which the offences were said to have taken place set out by reference to that timeframe. I am aware that there is a difference between the degree of information required to ground an application for a provisional warrant and that which would be required in respect of an extradition request. Having regard to that difference between the provisions of s. 25(b) and s. 27(2A)(c), I say that there is adequate description of the time when the offence may have taken place. The final matter which I must check by reference to the provisions under section 27(2A) is whether the request informs this court where the offences took place. In this regard, I refer again to the affidavit sworn in support of the application for an Arrest Warrant in the United States of America. It is urged upon me that the content of this affidavit should fairly be considered to be comprised in the request for the provisional Arrest Warrant. It is arguable that the only document extraneous to the request itself which may lawfully form part of the request and be checked for compliance with the rules in s. 27 is an accompanying statement of offences. I am not necessarily deciding whether such approach is lawful but I am willing to assume that I am permitted to have regard to the information that was sworn and available to the court in the United States of America when it issued the Arrest Warrant. In particular, I note the contents which start at paragraph 26 of the affidavit and which says that on or about 15th May 2013, based on badge access records, Mr. This is the first indication in any of the documents before the court as to where these offences might have taken place. The request itself does not state where the offences actually took place. There is a reference to Mr. The affidavit to which I have been referring says that having accessed the NSA (which I understand refers to the National Security Agency) facility in Hawaii for the last time, on or about 19th May 2013, Mr. The publication of the material happened between 5th, 6th, 7th and 9th June 2013 and the interview which was videotaped where Mr. The difficulty with this is that we have a timeframe within which Mr. It is of note that the offences with which Mr.
(ii) That the disclosure took place in Japan some time on or after 19th May 2013 or in Hong Kong some time after 20th May 2013. My conclusion in this matter is that the request made on 5th July 2013 by the United States of America through its Embassy in Dublin fails to indicate the place where any of the offences took place. Therefore, I am compelled to refuse the application by the United States of America for a provisional Arrest Warrant in respect of Mr (Though the judgment as delivered referred to the failure of the request to state where the alleged unauthorised disclosures took place, the decision of the court was also based on the same failure in respect of the offence of theft of government property. The court could not discern what property had been allegedly stolen nor where the theft took place. The offence may relate to theft of information and its misuse rather than to physical property. In the absence of some information about this alleged offence it could not be assumed that the theft took place in Hawaii.)
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