Daniel Mullan had just served a term of imprisonment for child sexual assault and child pornography convictions in Ireland, when he was arrested for further child sex offences that he allegedly committed in New York. The US authorities have requested Mr Mullan’s extradition for child sex offences, but this week Mr Mullan applied for a judicial review stating that the conduct alleged against him, in New York, should be prosecuted in Ireland, instead.
In the Irish High Court, Ms Justice Aileen Donnelly rejected Mr Mullan’s application for judicial review and found that an individual had no legal right to be considered for prosecution in Ireland. Justice Donnelly was also satisfied that Mr Mullan’s application was out of time and found that Mr Mullan had failed to fulfil his duty of candour to the court.
Mr Mullan sought two orders on judicial review:
- one order to require the Director of Public Prosecutions (DPP) to consider prosecuting him in Ireland and to take all necessary steps towards that end; and
- a second order to require the State Respondents to procure or to assist in procuring the investigation file in relation to the offences for which he is wanted in the US, for consideration by the DPP.
Additionally, Mr Mullan also sought a declaration that he is entitled to have consideration given to the prospect of his prosecution taking place in Ireland in circumstances where the alleged offences are also offences under Irish law.
In opposing the application for judicial review, the DPP and the State Respondents argued that:
- the application for judicial review was delayed and had subsequently been made out of time;
- Mr Mullan did not act with the requisite candour during the application because he did not draw the attention of the High Court to relevant, binding court decisions;
- there was no known substantive right, or legal basis, for the entitlement to the reliefs sought in his application.
Ms Justice Donnelly’s decision to reject Mr Mullan’s application for judicial review rested on three grounds:
- the application for leave was not made within three months from the date when grounds for the application first arose, therefore Mr Mullan was out of time in respect of the relief claimed;
- it was an established rule that judicial review applications were subject to a duty of the ‘upmost good faith’ on the part of the applicant. Mr Mullan had failed to fulfil this duty by not drawing the attention of the High Court to relevant, binding court decisions and by failing to act with good faith at the ex parte stage; and
- Mr Mullan had not discharged the burden of proving that the right to be considered for prosecution in Ireland exists and had been violated.