There is a “real and substantive” risk that the human rights of an on-the-run Irish sex offender who had wanted to meet a 13-year-old girl for “indecent purposes” will be breached if he is returned to the United States, his lawyers told the Court of Appeal on Tuesday.
Martin Jude Wall (47) fled the US after claiming a probation officer in Savannah, Georgia, told him to “go and live in a tent” when he complained the state’s strict parole restrictions governing sex offenders had left him without a job or anywhere to stay.
Wall was later arrested in Ireland in December 2020 after the State of Georgia issued a warrant for his arrest. He has been fighting attempts to send him back across the Atlantic ever since.
At the High Court last October, Mr Justice Paul Burns ruled there was no basis to refuse his surrender to US authorities and ordered his extradition.
Wall’s lawyers later appealed Mr Justice Burns’ decision on the grounds the judge had failed to “to carry out any further analysis as to whether the appellant would be subject to inhuman and degrading treatment” on his return to the US.
In an interim judgment issued by the Court of Appeal in February, Ms Justice Aileen Donnelly – who had heard the case along with Court President George Birmingham and Mr Justice John Edwards – stated that before making its ruling, the Court of Appeal required further submissions from both parties regarding Wall’s claims.
On Tuesday, Shane Costelloe SC, for Wall, told the three-judge court that it has always been his client’s case that there would be a real risk that his rights under Article 3 of the European Convention of Human Rights (ECHR) would be breached if he was sent back to the US.
Under Article 3 of the ECHR, citizens of signatory nations are protected from deportation or extradition if there is a real risk they will face torture or inhuman or degrading treatment or punishment in the country concerned.
Referring to the ruling by Mr Justice Burns, Mr Costelloe said the “court below” had “made a finding based on evidence not available to it”.
The decision to return his client to the US had been based on that “erroneous finding” and “in these circumstances, this appeal should be allowed”, counsel added.
Mr Costelloe said that in “the United States of America it was ok to tell people on probation to go and live a tent” at the side of rail tracks “where they would be subjected to violence on a daily basis”.
It was “borne out by the evidence”, counsel added, that Wall would face this system of probation if returned to the US.
“This court should get more information via the Minister [of Justice] to ensure that this is not the case,” he continued, adding that the test in this appeal was whether his client’s Article 3 rights would be breached if he was extradited.
“Once I have met that test, you must have evidence rebutting it,” Mr Costelloe told the court.
Patrick McGrath SC, for the Attorney General, said there was “no doubt Mr Wall will be incarcerated for some period of time if he is returned to the US”.
Regarding the possibility of probation, counsel said that the “risk is too remote and is speculative, and the court should disregard this risk”.
He said one of the issues the appellate court had to consider was “the application of the principle of good faith” between states involved in extradition agreements.
European arrest warrant
Although Mr McGrath conceded the presumption of good faith in this instance may not be as strong as the presumption enjoyed under the European Arrest Warrant cases, he said that “none the less, it does enjoy a presumption”.
“The prosecutors [in Georgia] are seeking a term of imprisonment [for Wall]. It goes without the saying that the authorities in the US have never failed to follow through on their undertakings,” he added.
Mr McGrath said Mr Justice Burns was correct to order Wall’s extradition and there had been no error in principle by the judge.
“Sight should not be lost of the facts in this case,” he continued.
“There was a house available to [Wall] at some stage and he did not have to live in a tent.”
Reserving judgment, Mr Justice Birmingham said the appeal was “fairly new territory” and that the court would “take time to consider matters”.
He said that he hoped a ruling would be issued before the end of the legal year.
Wall, whose last address in Ireland was in Clontarf, Dublin, but who is now a prisoner at Midlands Prison, had been convicted of trying to entice a child for sexual purposes after he set up a meeting with a ‘13-year-old’ girl he met in an Internet chatroom.
The girl’s account, however, was fictitious and had been created by US police officers to snare possible sex offenders. Wall was subsequently detained when he travelled to meet the ‘girl’ in person.
At appeal hearing on February 8, Mr Costelloe said convicted sex offenders in Georgia were not allowed to reside within 300 metres of places where children might congregate including schools, churches, shopping malls, and bus stops.
He said Wall lost his job and was made homeless as a result of the restrictions.
When Wall first informed his probation officer that he faced being made homeless because the 300-metre rule was making it impossible for him to find anywhere to live, Mr Costelloe said his client was told to “go and live in a tent”.
“He ends up living in a tent in a homeless facility at the side of train tracks, where he experiences violence on a nightly basis,” counsel said, adding that his client was forced to dig “his own latrine” in the earth because there were no toilet facilities at the camp.
Mr McGrath said that Wall was being returned to the US “to serve a sentence of imprisonment”.
“This is not a case where the appellant would be required to live in tent,” he said.
“The likely outcome in this case is that he would receive a period of detention.”
Previously, the High Court was told that in 2012 Wall had pleaded guilty through plea-bargain to attempting to entice a child for indecent purposes. He had sent messages and a nude photo of himself from his phone to chat-group user he believed was a 13-year-old girl.
Mícheál P O'Higgins SC, for the Minister for Justice, told the court that detectives created a "non-sexually suggestive" profile and that Wall tried to initiate a meeting.
Wall said in one message that he preferred "younger girls but I guess you're okay".
Mr O’Higgins said that Wall initiated "sex talk" and that he suggested meeting the girl for sex acts.
Wall told the officers controlling the profile that his wife had cheated on him and that he was looking to take revenge on her with the girl, whom he told was "very hot, very hot".
One message from Wall read: "Are you going to have me arrested?"
After sending the photo, Wall suggested that he and the girl should meet and detectives detained him at that location.