Attorney General v Wall (Approved)

Factual and Procedural Background

The Applicant sought an order under section 29(1) of the Extradition Act, 1965, as amended, to commit the Respondent to prison pending extradition to the United States of America ("the USA"). The extradition request was made in writing and received by the Minister for Justice on 6th January 2020, supported by certificates and affidavits from officials in the USA, including evidence of the Respondent’s prior guilty plea and sentencing in Georgia for offences related to online sexual abuse of a person believed to be a child.

The Respondent had previously pleaded guilty to offences involving communication with a person he believed to be a 13-year-old child, including sending a nude photograph and arranging a meeting, for which he was sentenced to detention and probation. However, he breached probation conditions by absconding and leaving the USA for this jurisdiction. A warrant for his arrest was issued and executed in this jurisdiction.

The Applicant sought the Respondent’s surrender for re-sentencing in the USA for breach of probation. The Respondent contested surrender on two grounds: lack of correspondence between the offences charged and offences under this jurisdiction’s law, and that the conditions he would face if surrendered would breach his fundamental human rights, including rights to private life and protection from inhuman or degrading treatment.

Legal Issues Presented

1. Whether the offences for which extradition is sought correspond to offences under the law of this State as required by section 10 of the Extradition Act, 1965.
2. Whether the conditions the Respondent would face if surrendered would breach his fundamental human rights, including rights to private life and protection from inhuman or degrading treatment.

Arguments of the Parties

Applicant's Arguments

• The acts of the Respondent correspond to offences under this jurisdiction’s law, including offences under the Criminal Law (Sexual Offences) Act, 2017 and the Child Trafficking and Pornography Act, 1998.
• The Respondent’s communications and conduct would constitute offences or attempts to commit offences in this jurisdiction.
• The probation and post-release supervision system in Georgia, though more onerous than in this jurisdiction, does not amount to inhuman or degrading treatment or breach of fundamental rights.
• The Respondent’s breach of probation and absconding justify his return to serve further detention.

Respondent's Arguments

• There is no correspondence between the offences charged and offences under this jurisdiction’s law because no real child was involved, and the law of attempt and impossibility creates uncertainty.
• The conditions of probation and supervision in Georgia would breach his fundamental rights, including his right to private life and protection from inhuman or degrading treatment.
• The Respondent’s living conditions post-release, including restrictions on residence and employment, and public registration as a sex offender, cause hardship and potential exposure to vigilante violence.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully examined the acts committed by the Respondent and the relevant statutory provisions under this jurisdiction’s law. It found that the Respondent’s conduct would constitute offences or attempts to commit offences, including under sections 8(1) and 8(2) of the Criminal Law (Sexual Offences) Act, 2017, and sections 3 and 6 of the Child Trafficking and Pornography Act, 1998.

The Court rejected the Respondent’s argument regarding legal uncertainty on impossibility in attempts, reasoning that the Respondent’s acts demonstrated sufficient mens rea and actus reus to constitute attempt offences. The Court emphasized that difficulty in determining correspondence does not justify refusal of surrender, and the facts must be assessed concretely.

Regarding the human rights objections, the Court distinguished the Respondent’s case from precedent cases involving vulnerable groups and found no basis to conclude that the conditions of detention or probation in Georgia would amount to inhuman or degrading treatment. The Court noted that the Respondent’s probation had been breached and that the current surrender was to impose further detention. Speculation about post-release conditions was deemed insufficient to refuse surrender.

The Court acknowledged that differences in legal systems and probation regimes between jurisdictions are inherent in extradition matters and do not automatically justify refusal unless there is a fundamental defect. It found that the registration and supervision requirements in Georgia, while onerous, did not breach the Respondent’s constitutional or ECHR rights, particularly given the strong public interest in extradition.

Holding and Implications

The Court GRANTED the application pursuant to section 29(1) of the Extradition Act, 1965, committing the Respondent to prison to await the order of the Minister for his extradition to the USA.

The direct effect of this decision is that the Respondent will be extradited to the USA to face further detention and sentencing for breach of probation. The Court dismissed the Respondent’s objections based on lack of correspondence and alleged breaches of fundamental rights. No new legal precedent was established beyond the application of existing principles to the facts of this case.