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Irish 'child porn facilitator' wouldn't give computer password to Gardai

CourtsBy Sunday World
Eric Eoin Marques
Eric Eoin Marques

State lawyers in the extradition case of an Irishman who is alleged to be the "largest facilitator of child porn in the world" have told the High Court that he would not give the password for his computer to gardai.

US authorities are seeking the surrender of Eric Eoin Marques (30), who is alleged to be the owner and administrator of an anonymous hosting site known as ‘Freedom Hosting’, 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 100 “anonymous websites” described as being extremely violent, graphic and depicting the rape and torture of pre-pubescent children.

Mr Marques 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.

Mr Marques is seeking a judicial review of the Director of Public Prosecutions' decision not to prosecute him in Ireland.

His lawyers say that the case is exceptional because Mr Marques is offering to plead guilty to the charges. They have submitted that it isn’t “a floodgates case”.

Today (WED) counsel for the State Pat McGrath SC said there were no exceptional circumstances in the case.

Ms Justice Aileen Donnelly presiding asked whether the exceptional circumstances were the plea of guilty but Mr McGrath replied that it was irrelevant.

Counsel said that the assertion by lawyers for Mr Marques failed to show any mala fides, breach of fair procedures or exceptional circumstances.

He told the court that the burden of proof was on the lawyers for Mr Marques and that “my friend has failed to satisfy the burden of proof”.

Mr McGrath said that the computer, the court previously heard was seized, could not be analysed as Mr Marques had refused to give his password to the gardai.

Counsel said there was no question that the alleged offences for which his surrender is sought were committed in Ireland.

He said it was more convenient to have the case tried in the US as the FBI are investigating the case and the sites were accessed in Maryland.

Counsel said that it was more practical to have the case tried in the US as the IP address was in the States.

He also said Mr Marques was a US citizen with dual citizenship and the investigation and primary witnesses are citizens of the US government.

Mícheál P O'Higgins SC, for Mr Marques, told the court that the DPP’s ability to shield her reasons for not prosecuting was “ripe for abuse.”

He said it was dangerous if the law permits that sort of formula to seal and insulate from review.

He previously said his client had offered to plead guilty to the alleged offences on signed pleas in the District Court so that he could be sent forward for sentencing in Dublin Circuit Criminal Court.

Mr O'Higgins said the alleged act of distribution occurred in this jurisdiction and while US officials were seeking to prosecute Mr Marques for the alleged offences in Maryland, the same could be said about any country in the World with Internet access.

Furthermore, his extradition would be entirely disproportionate, Mr O'Higgins said previously.

In Ireland, the alleged offences did not amount to a crime so heinous that a person would be imprisoned for the rest of his life – he would receive a determinate sentence – while in the United States, he would effectively receive a life sentence without the possibility for parole, Mr O'Higgins said.

Mr O’ Higgins told the court the principal facts of the case included the proposed extradition of his client who could be prosecuted in Ireland.

He said his client had offered to plead guilty and a means by which he could be prosecuted.

Counsel said his client lived in Ireland since he was six years old and his parents and sister remain in this country.

Mr O’ Higgins said that Dublin was the place of the commission of the alleged offences and the policing authority which arrested him were the Garda Siochana, who would be able to give evidence in the case.

Furthermore he said a computer was seized in Mountjoy Square.

Mr O’ Higgins submitted that on the facts there would be no question that it would be in the public interest to prosecute his client here.

Counsel also submitted that the evidence here would have to go to the US if he were to be surrendered and all of these factors are in favour of him being prosecuted here.

Mr O’ Higgins said that there was “a point blank refusal” by the DPP without giving a particular reason not to prosecute his client.

He also said there was evidence that the organisational hub of the operation was Dublin.

Mr O’ Higgins said that if a person walked into a garda station and confessed it would be automatic that the DPP would seriously consider bringing charges.

“They must set out why they’re discounting that factor which points strongly in favour of domestic prosecution,’ said Mr O’Higgins.

Opening the case on Monday, Mr McGrath gave the history of proceedings involving Mr Marques.

The court heard Marques has both Irish and US citizenship. He was born to a Portuguese father and Irish mother in New York in 1985 and moved to this State when he was six years old.

In May of this year he was diagnosed with Aspergers syndrome, a condition on the autism spectrum, by a psychiatrist and senior clinical psychologist from Dublin's Mater Hospital, Professor Patricia Casey and Dr Odhran McCarthy and concerns were raised that his health may be at risk in the American prison system.

Among the many documents Mr McGrath read to the court, was an affidavit by a US official who stated that it appeared Mr Marques' medical condition was “manageable” and the US Federal Bureau of Prisons was “currently providing treatment to inmates with these conditions”.

The US official stated that the Bureau of Prisons would be able to provide appropriate care for Mr Marques should he be extradited and prosecuted on the alleged offences, the court heard on Monday.

The case continues tomorrow.