Child porn accused seeks review of decision not to prosecute here

High Court proceedings involving an Irishman whom the FBI claims is the "largest facilitator of child porn in the world" will resume in three weeks' time.

Eric Eoin Marques, who is alleged to be the owner and administrator of an anonymous hosting site known as Freedom Hosting, is wanted by the US authorities to face charges relating to conspiring to distribute and advertise child pornography, and advertising and distributing child pornography.

The charges against Marques relate to images on over a hundred “anonymous websites” described as being extremely violent, graphic and depicting the rape and torture of pre-pubescent children.

The 30-year-old, with an address at Mountjoy Square in central Dublin, has been in custody since his arrest in August 2013, after he was refused bail over concerns he represented a flight risk and that he may abscond or interfere with evidence in the case.

The State is seeking to surrender him to US authorities, while Mr Marques is seeking a judicial review of the Director of Public Prosecutions' decision not to prosecute him in this country.

The matter came before Ms Justice Aileen Donnellyon Friday afternoon for the purpose of fixing a date for the resumed hearing.

Ms Justice Donnelly remanded Mr Marques in custody until July 21st next.

Counsel for Mr Marques, Miceál P O'Higgins SC, told the High Court on Thursday a "core aspect" of his client's attempt to seek prosecution in Ireland was his offer to plead guilty to the alleged offences on signed pleas in the District Court so that he could be sent forward for sentencing at the Circuit Criminal Court.

That precluded and excluded the refusal to prosecute on evidential grounds, Mr O’Higgins said.

Extradition material

“The gardaí­ say he did it, the extradition material says he did it,” Mr O’Higgins said, and a major part of the case was the computer seized in Ireland.

His plea would dispense with an expensive, unpredictable and long drawn-out criminal trial. There would be no difficulty in securing evidence or witnesses for a sentence hearing.

The FBI was co-operative and if officers needed to be brought over, they had already sent agents twice to this country for bail hearings, he said.

The offer to plead guilty was highly relevant and a decision-making process which regarded it as irrelevant was a flawed process, Mr O’Higgins said.

All of that pointed in favour of the strong public interest in directing a domestic prosecution,Mr O’Higgins said.

It was in the public interest to prosecute him here, unless the DPP can point to reasons why it would not be in the public interest, he said.

Supposing the DPP wanted to ensure Mr Marques did not change solicitor, he could be required to walk into a Garda station and give a “taped confession” on all the matters he’s offered to plead guilty to, he said.

Counsel for the State, Patrick McGrath SC, told the High Court on Thursday that Marques’s lawyers were suggesting the DPP had improperly exercised her function in choosing not to prosecute him in Ireland.

Forum issues

The court heard that the DPP, in choosing to prosecute, considers the availability and sufficiency of relevant evidence and the public interest in prosecuting, which included what has been referred to, according to Mr McGrath, as forum issues.

Mr McGrath said there was an acceptance that what had loosely been described as forum issues were “individual and personal circumstances” and that every case depends on the circumstances of the case.

It had been contended by Marques’s lawyers that the DPP was obliged to prosecute him in Ireland for a number of reasons, Mr McGrath said.

These were his Irish citizenship and the disproportionate sentence he would face in the US compared to Ireland for the same offence, and in circumstances where he had offered to plead guilty there would be no issue in relation to cost or sourcing of evidence, and lengthy extradition proceedings could be avoided.

This was “a recitation of individual and personal circumstances”, Mr McGrath said. The DPP was entitled to take these matters into account and Marques’s lawyers could not mount an evidential challenge to suggest they weren’t taken into account.

That should be the end of the case, Mr McGrath said.

The case continues before Ms Justice Donnelly on July 21st next.