Agrama v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 25 January 2013
• Neutral Citation: [2013] IEHC 15
• Docket Number: Record Number: No. 397 JR/2008
• Court: High Court
• Date: 25 January 2013

[2013] IEHC 15

THE HIGH COURT

Record Number: No. 397 JR/2008

Agrama v Min for Justice & Ors

Between:

Frank Agrama

Applicant

And

The Minister for Justice, Equality and Law Reform, District Judge Catherine Murphy, and District Judge Bridget Reilly

Respondents

CRIMINAL JUSTICE ACT 1994 S51

CRIMINAL JUSTICE ACT 1994 S51(1)

CRIMINAL JUSTICE ACT 1994 S51(2)

CRIMINAL JUSTICE ACT 1994 S51(3)

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 15

CRIMINAL JUSTICE ACT 1994 SCHEDULE II PARA 4(1)

BRADY v HAUGHTON 2006 1 IR 1

NICHOLLS MONTGOMERY & KNOWLES THE LAW OF EXTRADITION & MUTUAL ASSISTANCE (2ED) PARA 19.13

R v SECRETARY OF STATE OF THE HOME DEPARTMENT EX PARTE FININVEST SPA 1991 1 WLR 743

R v BOW STREET MAGISTRATES' COURT EX PARTE ZARDARI UNREP 9.4.2001 2001 EWHC ADMIN 275

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 1

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 2

CRIMINAL LAW

Evidence

Criminal law - Evidence - Mutual assistance - Assistance to foreign criminal - Whether lawful for Minister to accept request for assistance from prosecuting authority - Whether Minister required to screen request - Whether Minister entitled to exercise discretion to accede to request - Which Minister required to investigate background facts and allegations in request - Whether Minister required to consider representations relating to request - Brady v Haughton [2005] IESC 54, [2006] 1 IR 1; R v Secretary of State for the Home Department ex p. Fininvest Spa [1997] 1 WLR 743; [1997] 1 All ER. 942; [1997] Crim LR 213 andZardari v Secretary of State for the Home Department [2001] EWHC Admin 275 (Unrep, High Court of Justice, 9/4/2001) considered - Criminal Justice Act 1994 (No 15), s 51, sch 2 - Council of Europe Convention on Mutual Assistance in Criminal Matters 1959 - Relief refused (2008/397JR - Peart J - 25/1/2013) [2013] IEHC 15

Agrama v Minister for Justice, Equality and Law Reform

Facts The applicant had been the subject of a criminal investigation in Italy concerning money-laundering and the purchase of broadcasting rights in certain companies. The authorities in Ireland had received requests for mutual assistance from their Italian counterparts in respect of these matters and for assistance in gathering evidence. A District Judge had been nominated to gather evidence in respect of matters involving a Bank. The applicant had taken issue with a number of the procedures and claimed that they were an abuse of process. It was contended that the Minister must not merely “rubber-stamp” such an application. The applicant imitated judicial review proceedings contending that the requests made contained a number of misstatements and misrepresentations and had not been properly initiated. The applicant also sought to amend his statement of grounds seeking to have certain material, which had already been sent, retrieved from the Italian authorities. On behalf of the Minister it was submitted that the accuracy of matters contained in the requests was ultimately a matter for the courts of the requesting state. It was also submitted that there was nothing in the Criminal Justice Act, 1994 which precluded the making of successive requests for mutual assistance either in relation to the same offences.

Held by Peart J in refusing to grant the relief sought: The nomination of the District Judge to receive the evidence was in accordance with the law at that time. The transmission of the evidence and material relating to the Bank was in accordance with domestic law. There was nothing in the provisions of the Act of 1994 which obliged the Minister to investigate matters of dispute in such requests and was not required to be satisfied as to the strength of the potential evidence or the merits of any possible prosecution which might ensue. Simply because the applicant considered that the Italian prosecutor was incorrect in some of his assertions could not result in the onus of resolving those issues being placed upon the Minister. There was nothing in the Act of 1994 which precluded the Minister from considering representations which he might receive from any party such as the applicant in relation to a request for mutual assistance.

Judgment of

Mr Justice Michael Peart

1 In these proceedings the Applicant seeks certain reliefs by way of Judicial Review in relation to two Requests for mutual assistance received by the first named respondent ("the Central Authority") from an Italian prosecutor in Milan, Italy in relation to the investigation and/or prosecution of the Applicant on certain charges in Italy.

2 The First Request is dated 17^th July 2006 and this is stated therein to be "aimed at investigating a serious and complex fraud - which includes offences of money-laundering - carried out in the period 1999-2000 - which is connected to the purchase of broadcasting rights made by the company Fininvest spa, through the subsidiary companies Mediatrade spa and TRI spa".

3 This Request goes on to state in its opening paragraphs that"the broadcasting rights in question were supplied to the companies Mediatrade spa and RTI spaby Olympus Trading Ltd, a dummy company based in Dublin and which can be traced back to Frank Agrama. The latter is an Egyptian individual who operates in Los Angeles."

4 The Second Request is dated 11^th January 2008 and was sent to the Central Authority here by the same Italian prosecutor in substitution for the First Request in circumstances where the 1999 charges against the Applicant which were referred to in the First Request have become statute-barred under Italian law. The Second Request relates to the investigation of charges of a similar nature to those in the First Request, but in respect of later years, namely 1999 - 2005.

5 Each Request contained a lengthy narrative of background facts to the investigations. In the case of the First Request this runs to some 12 pages, and in the case of the Second Request to some 16 pages.

6 Section 51 of the Criminal Justice Act1994 sets out the procedures to be undertaken where the Minister receives Requests of this kind for assistance in obtaining evidence in this State in connection with criminal proceedings which have been instituted, or in connection with a criminal investigation being carried on in the requesting state. Section 51, subsections (1), (2), and (3) provide as follows:

7 2 "51. - (1) this section shall have effect where the Minister receives --

8 (a) from a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory, or

9 (b) from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies,

10 a request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country or territory.

11 (2) If the Minister is satisfied --

12 (a) that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and

13 (b) that proceedings in respect of that offence have been initiated in that country or territory all that an investigation into that the fence is being carried on there,

14 he may, if he thinks fit, by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request.

15 (3) For the purpose of satisfying himself as to the matter is mentioned in subsections (2) (a) and (b) of this section the Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate."

16 7. Following the receipt by him of the First Request, the Minister having satisfied himself of the matters referred to in section 51(2) of the Act of 1994 nominated a Judge of the District Court (Judge Malone) on the 16^th February 2007 to receive the evidence and materials relating to National Irish Bank. According to an affidavit sworn by Anne Farrell, an Assistant Principal in the Minister's department, the other evidence and matters set forth in the First Request were at this time to be dealt with "by way of police to police co-operation" rather than by way of section 51. It appears that the evidence relating to National Irish Bank was gathered by the nominated District Judge on the 21^st February 2007 and thereafter transmitted to the Italian authorities by the Central Authority. At this point in time the Applicant had not become aware of the existence of this First Request. He became aware of it only in May 2007.

17 8. By May 2007, according to the affidavit of Ms. Farrell, it had become apparent that the companies from whom the remainder of the evidence was to be gathered on the basis of police to police co-operation were not prepared to co-operate, and accordingly the Minister decided to proceed in relation to that other evidence by way of section 51 also, and nominated the second named respondent on the 25^th April 2007 to receive that evidence.

18 9. The date fixed for that hearing was the 16^th May 2007. By that date the applicant had become aware of the Request. Counsel and solicitor attended on his behalf at the District Court and made certain submissions which resulted in the matter being adjourned. By letter dated 29^th May 2007, the applicant's solicitors wrote to the Chief State Solicitor setting out at considerable length the basis on which the applicant considered that the First Request contained...