Agrama v Minister for Justice and Equality and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 08 February 2016
• Neutral Citation: [2016] IEHC 55
• Docket Number: [2016 No. 50 JR]
• Court: High Court
• Date: 08 February 2016

BETWEEN

FRANK AGRAMA

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY AND DISTRICT JUDGE JOHN O'NELL

RESPONDENTS

(No. 3)

[2016] IEHC 55

[2016 No. 50 JR]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – European Convention on Mutual Assistance in Criminal Matters – The Criminal Justice Act 1994 – Criminal investigation – Second judicial review proceedings – Delay – Fair procedures

Facts: Following the dismissal of the appeal by the Supreme Court and its refusal to permit an amendment in the proceedings to include the claim that the evidence of the applicant was sought for the purpose of prosecution and not for the investigation pursuant to the letter of request for assistance from the Italian authorities, the applicant had now instituted second judicial review proceedings seeking an order for an amendment of the proceedings to include the said claim that his evidence was being taken for the purpose of prosecuting him as contrary to merely investigating the matter and thus, it was contrary to s. 51 of the Criminal Justice Act 1994. Since the Court had already delivered an unapproved version of the present judgment, the applicant returned to seek an order for certain corrections in relation to the date on which the applicant was charged.

Mr. Justice Richard Humphreys refused to grant leave to seek judicial review. The Court held that the applicant's present application was time barred and it was open for the applicant to raise the said contention in the first judicial review proceedings or in the High Court proceedings; however, the applicant deliberately did not do so until the hearing of the Supreme Court Appeal. The Court however, observed that since the applicant was acquitted in relation to tax fraud charge and his acquittal had been subject to appeal in Italian Courts, further delay in the present matter was undesirable. The Court held that the balance of justice favoured that the Court should allow the respondent to take evidence of the applicant based upon the mutual assistance provisions. The Court keeping in mind the prospect of a third judicial review proceedings directed that unless directed by the President of the High Court, any further judicial review applications relating to the present matter should be made to the judge, to whom such applications would be assigned with notice to the respondents. The Court held that an investigation could co-exist with a prosecution and might be effective even up to the finalisation of the criminal proceedings. The Court held that the conclusion of the prosecution at first instance would not affect the investigation or render it a fiction. The Court held that it had power to review the judgment even if an order had been perfected under special circumstances or where there had been an accidental slip in the judgment or where there was an omission to state what the Court had decided and intended.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 8th day of February, 2016.

1 It is alleged by Italian prosecution authorities that during the period 1999 to 2005, various frauds were committed in connection with the Mediaset Communications Group and related companies. One strand of alleged fraud occurred in relation to companies referred to as Mediatrade/RTI. The applicant became the subject of this investigation, together with Mr. Silvio Berlusconi, of whom the applicant is said to be an associate, and a number of other individuals.

2 Pursuant to the Council of Europe's European Convention on Mutual Assistance in Criminal Matters of 20th April, 1959, as implemented by s. 51 of the Criminal Justice Act 1994, provision is made for the receipt by the Minister for Justice and Equality of letters of request for the taking of evidence for purposes of criminal investigation or criminal proceedings. Where such a letter is received, the Minister may, in accordance with the Act, nominate a judge of the District Court to take the evidence.

3 On 17th July, 2006 a first letter of request was received from Italian prosecution authorities in relation to evidence said to be relevant to the investigation of the applicant. That letter was superseded for the purposes of this application by a second letter of request dated 11th January, 2008, which sought the taking of evidence for the purposes of a criminal investigation into the alleged offences by the applicant.

4 In March, 2008 the Minister appointed Judge Bridget Reilly to take evidence for the purposes of this letter of request. That decision gave rise to a first set of judicial review instituted by the applicant, in which leave was granted on 7th April, 2008. An issue arose in the High Court procedures related to discovery, which occasioned the first in a number of written judgments in this matter, which I will refer to as Agrama v. Minister for Justice, Equality and Law Reform (No.1) [2009] IEHC 476 (30th October, 2009), in which certain categories of discovery were ordered.

5 At some point during the course of the first judicial review, the applicant was charged with offences arising from the investigation. The precise date on which the applicant was charged consumed unnatural attention in this case for reasons that will shortly appear.

6 The respondents contend that the date of charging was 9th March, 2010 (having initially suggested January, 2010 during the course of the hearing). The applicant contends that the relevant date was 18th October, 2011.

7 In the meantime the first judicial review was progressing through the High Court. Peart J. finished hearing the judicial review proceedings on 29th July 2011. He delivered a ruling on 14th October, 2011, dismissing relief sought in connection with the first letter of request. That ruling was not delivered in the form of a full written judgment but rather a written note of a decision. It was not circulated as a judgment. He then reserved judgment on the balance of the case.

8 On 25th January, 2013, Peart J. gave judgment dismissing the balance of the first judicial review in a judgment I will refer to Agrama v. Minister for Justice, Equality and Law Reform (No.2) [2013] IEHC 15, in which it was held that the nomination of Judge Reilly was lawful. This judgment incorporated the informal written ruling of 14th October, 2011.

9 On 8th July, 2014 the applicant was acquitted of the charges against him, namely aggravated misappropriation and tax fraud.

10 The applicant, having appealed to the Supreme Court in the Agrama (No.2) proceedings, then brought a notice of motion in that appeal dated 16th October, 2015 seeking to amend the proceedings to include the claim that the evidence was being sought not for the purposes of investigation but for those of prosecution. That motion was adjourned to the hearing of the Supreme Court appeal. Judgment was given by the Supreme Court in Agrama (No.2) on 9th December, 2015 ( [2015] IESC 94), dismissing the appeal and refusing to permit an amendment.

11 The Minister then moved to nominate a different District Court judge, Judge John O'Neill, to take the evidence pursuant to the second letter of request, by nomination dated 18th January, 2016. Judge O'Neill issued four summonses on 19th January, 2016 to two relevant witnesses, Joseph Kenny and Gerard Hayes, requiring them to attend for this purpose.

12 These steps led to the institution of the second judicial review application, the present proceedings, on 1st February, 2016. Mr. Paul Gardiner S.C. (with Mr. Marcus Dowling B.L.) appeared for the applicant, and pursuant to an advance request by the State, very properly made the application on notice to the respondents, for whom Mr. Patrick O'Reilly S.C. appeared. On that date the respondent undertook to hold off on further processing the letter of request until I determined the leave application.

13 I am also told that the hearing of the prosecution appeal against acquittal will take place in March, 2016. I draw the inference in the circumstances that whatever value the evidence may have as part of the investigation will be likely to be significantly diluted if it is not made available before that appeal, because prosecutors will lose the opportunity to consider applying to adduce the fruits of the investigation into the criminal process before its conclusion.

The question of revision of the unapproved judgment

14 It is now necessary to discuss an issue that arose in connection with the unapproved judgment relating to the present application.

15 This application for leave was further heard on 2nd February, 2016. In the course of that hearing, the issue of when precisely the applicant had been charged arose. The applicant's lawyers were not possessed of instructions in that respect other than to point out the necessary fact that it was at some point prior to 8th July, 2014. On behalf of the respondents I was given to understand that he was charged in 2010, a date subsequently refined in submissions as being understood to be in or about January, 2010. I delivered an unapproved version of the present judgment at 10.30 a.m. on 4th February, 2016 reflecting that information. At 1 p.m. on that day Mr. Gardiner appeared and contended that the date of the indictment was in fact in October, 2011, the inference being that certain elements of the unapproved judgment should be revisited on that basis.

16 As the order had not been perfected by that time, there was no issue as to my ability to retain seisin of the matter for the purpose. Even if the order had been perfected, the present sort of issue comes well within the court's power to review such an order. Ainsworth v. Wilding [1896] 1 Ch. 673 at 677 as cited with approval in Re Greendale Developments Limited (No. 3) [2000] 2 I.R. 514, established that even where an order has been perfected, it can be reviewed '(1) in special or unusual circumstances, or (2) where there has been an...