Agrama v Minister for Justice

• Jurisdiction: Ireland
• Judge: O'Donnell J
• Judgment Date: 09 December 2015
• Neutral Citation: [2015] IESC 94
• Docket Number: Appeal No.s 534 & 555/2013
• Court: Supreme Court
• Date: 09 December 2015

[2015] IESC 94

THE SUPREME COURT

Denham C.J.

Hardiman J.

O'Donnell J.

McKechnie J.

Clarke J.

Appeal No.s 534 & 555/2013

Between/

Frank Agrama

Applicant

and

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

Respondents

Administrative & constitutional law – Judicial review – Ministerial decision – Assistance provided to Italian prosecutor – Review sought of decision to assist – S 51, Criminal Justice Act 1994

Facts: The first respondent had been contacted by a prosecutor in Italy seeking assistance in respect of a criminal investigation. The investigation related to transactions regarding broadcasting rights. The applicant sought to challenge the first respondent”s decision to assist the Italian request by appointing the second and third respondents, in the light of the relevant Italian statute of limitations. The High Court had dismissed the applicant”s complaints, and the applicant now sought to appeal to the Supreme Court.

Held by O'Donnell Donal J, the other Justices concurring, that the appeal would be dismissed. The applicant contended that the first respondent had incorrectly fettered his discretion under the relevant statutory provisions under s 51 of the Criminal Justice Act 1994. Notwithstanding some justified criticisms of the manner in which the matter had been dealt with in correspondence, the Court was satisfied that the High Court”s decision in the matter was correct.

Judgment of O'Donnell J delivered on the 9th day of December 2015

O'Donnell J

1 A colourful cast of characters, and some exotic locations, are involved in these judicial review proceedings. The case has sprawled over six lever arch files of appeal papers, one motion book, and even one large book of transcripts. It has generated much correspondence, and multiple court applications, hearings, and rulings. All of this can distract attention from the fact that at its core, the issues for determination are relatively net. While it will be necessary to address these matters in greater detail, the essential fact is that an Italian prosecutor has issued two letters of request of the 17th of July, 2006, (‘the first letter’), and the 11th of January, 2008, (‘the second letter’), to the respondent Minister for Justice Equality and Law Reform (‘the Minister’). By those letters, the prosecutor sought the assistance of the Irish authorities in obtaining evidence for an investigation then underway in Italy. The requests were made pursuant to the provisions of the European Convention on Mutual Assistance in Criminal Matters signed at Strasbourg on the 20th of April, 1959 (‘the Convention’). The Convention has been given effect in Irish law by the provisions of Part VII of the Criminal Justice Act 1994 (‘the 1994 Act’) now superseded and replaced by later legislation, which, however, is not relevant to these proceedings. The first letter was executed in part, with some evidence having been taken by the District Court and submitted to the Minister and transmitted to the corresponding Italian authorities. These proceedings have been brought by Mr. Frank Agrama, a U.S. business man who seeks to quash the decision of the Minister to appoint the second and third named respondents, respectively, to receive and transmit to the Italian authorities evidence sought under the requests. The proceedings alsoseek other consequential relief including orders seeking the return of any information and evidence transmitted under the first request.

2 The first letter runs to 12 pages. Simplifying the matter considerably for the purposes of setting the dispute in context, the first letter informed the Minister that Fabio De Pasquale, the public prosecutor of the court in Milan, was conducting an investigation into what was described as a ‘serious and complex fraud, which includes offences of money laundering —carried out in the period 1999–2000’. These offences were alleged to be connected to the purchase of broadcasting rights by the company Fininvest S.p.A. through subsidiary companies Media Trade SpA. and RTI SpA. Mediaset, which was, I believe, a parent of Media Trade, was part of the Berlusconi Group, which, at the time, was an important group of entertainment companies associated with Silvio Berlusconi, the well known Italian businessman, politician, and for some of the period covered by these events, the controversial Prime Minister of Italy. Signor Berlusconi was a large, if not the largest shareholder, whether directly or indirectly, in Mediaset, although as the letter of request points out, Mediaset is a listed company on the Italian stock exchange, whose shares are also owned by private investors and financial institutions.

3 Again, and in a very simplified form, it appears that the transactions being investigated related to the sale of broadcasting rights by the U.S. conglomerate Paramount, and which rights were ultimately purchased and exercised by Mediaset companies. The allegation was that the rights were initially purchased by intermediary companies named Wiltshire Trading and Melchers based in Hong Kong and Netherland Antilles, and then sold to Mediaset companies at substantially inflated prices. It was also alleged that payments of monies were made by Wiltshire to individuals owning accounts in Switzerland, which, it was alleged, ‘could reasonably be understood to represent a system for ‘returning’ part of the illegal proceeds made by Wiltshire Trading Ltd through the sale of television rights at inflated prices to Mediaset Group companies’. The Wiltshire and Melcher companies were alleged to be associated with Mr. Agrama. It was also alleged that in the year 2000 and thereafter, similar transactions were carried out through intermediary companies which had been incorporated in Ireland, Olympus Trading Limited, and Olympus Trading (Ireland) Limited. The sums alleged to be involved are enormous. It was, for example, alleged that the difference between the amount paid in the period 1988–1999 by the Berlusconi group companies to the Agrama related companies and the sum paid by the Agrama companies to Paramount for the products was $170 million. It appears that the Irish companies were established by a company formation business, FPR Trust Company Limited, 101 Furry Park Road, Dublin 5, which supplied directors to the companies. The first request, therefore, asked the Irish authorities to acquire documentation at the premises of FPR Trust Company Limited concerning Olympus Trading Limited, including the documentation relating to the incorporation of the company and all company documents. The request also sought the provision of contracts for the sale of the broadcasting rights to the companies Media Trade SpA and RTI SpA as well as contracts for the purchase of the broadcasting rights. Finally, the request sought documentation concerning bank accounts at National Irish Bank, 27 College Green, Dublin 2.

4 A feature of Italian law which looms large in these proceedings, and to which both parties have referred, is the unusual provisions of the Italian statute of limitations in criminal matters as explained in the second letter of request as follows:

‘After the formulation of the accusations by this Public Prosecutor and while the preliminary hearing was underway, the Italian Parliament (in December 2005) reduced the period of time after wich [sic] the Statute of Limitations would come in to effect for several offences, including those being examined in the ongoing Mediaset hearing.

It must be emphasised that in the Italian legal system the Statute of Limitation is the time within which

• The criminal lawsuit must be brought against the defendants, and

• The trial (and any subsequent appeal) must be concluded.

This means that even after the indictment and the beginning of the trial — and even during the trial itself — the Statute of Limitation continues to run. Therefore the expiry of the limitation period can occur during the trial — this is not rare with the new 2005 Law — and in this case for some charges (or even all charges) the trial would come to an end.’

Much of what occurred in this case can be understood when viewed in the context of these provisions.

5 The procedure under the 1994 Act did not require notice to any party other than the person or persons from whom evidence was sought. However, Mr. Agrama or his representatives became aware that the process had been initiated under the 1994 Act. This was hardly surprising since it appears that there were also applications for assistance made and for the obtaining of evidence both in Hong Kong and in the United States, and perhaps elsewhere. Messrs Arthur Cox & Company were retained to act on behalf of Mr. Agrama, who then instructed counsel to appear in the District Court on the 16th of May, 2007, to seek an adjournment to allow the making of representations. The matter was adjourned, and on the 29th of May, 2007, Messrs Cox & Company delivered an eleven page letter (‘29th May letter’) to the Chief State Solicitor's Office (‘CSSO’). Although addressed to the Chief State Solicitor and marked for the attention of a solicitor employed in that office, it appears that the substance of the letter was a representation through the CSSO to the Minster calling upon him to revisit the consideration of the letter of request and to withdraw the designation of the second named respondent. In 24 numbered paragraphs over 11 pages with 22 attachments, some of them substantial, a number of alleged inaccuracies and misrepresentations were identified in the first letter of request, and it was expressly submitted that the placing of such a misleading request before the Minister represented ‘a serious abuse of the process envisaged by the Convention’. It will be necessary to...