Agrama v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 22 February 2016
• Neutral Citation: [2016] IECA 72
• Court: Court of Appeal (Ireland)
• Docket Number: 59/2016
• Date: 22 February 2016

[2016] IECA 72

THE COURT OF APPEAL

Birmingham J.

59/2016

Birmingham J.

Sheehan J.

Mahon J.

FRANK AGRAMA

APPLICANT/APPELLANT

-AND-

MINISTER FOR JUSTICE AND EQUALITY AND DISTRICT JUDGE O'NEILL

RESPONDENT

Mutual legal assistance – Criminal investigation – Judicial review – Appellant seeking leave to apply for judicial review – Whether material was sought by prosecutors for a purpose other than that stipulated in the letter of request

Facts: Italian prosecutors issued two letters of request to the first respondent, the Minister for Justice and Equality, on the 17th July, 2006 (the first letter) and on the 11th January, 2008 (the second letter). By these letters, the prosecutors sought the assistance of the Irish authorities in obtaining evidence for a criminal investigation underway in Italy in which the appellant, Mr Agrama, was a person of interest. In March, 2008, the Minister appointed the District Court to take evidence for the purpose of the first letter. That decision gave rise to an application by Mr Agrama seeking judicial review. Mr Agrama was charged with various offences and in July, 2014, he was acquitted on all charges. Mr Agrama complained that the Italian prosecutors had made a series of incorrect assertions, had selectively quoted materials and had not included highly relevant materials to the extent that the requests amounted to a serious abuse of process. In October, 2011, Peart J gave a ruling refusing the reliefs sought in connection with the first letter. Then, in January, 2013, Peart J dismissed the balance of the judicial review proceedings. Mr Agrama appealed to the Supreme Court. The Court dismissed the appeal and upheld the decision of Peart J in December, 2015. In January, 2016, the Minister nominated O'Neill J to receive evidence on foot of the second letter. Mr Agrama sought a declaration that the decision of the Minister to nominate the second respondent, O'Neill J, to receive evidence in relation to the second letter was unlawful and/or irrational and/or ultra vires the provisions of s. 51 of the Criminal Justice Act 1994. In February, 2016, Humphreys J refused Mr Agrama?s judicial review application. Mr Agrama appealed to the Court of Appeal from that judgment, saying that there is a significant difference between the receipt of evidence for the purpose of an investigation and the receipt of evidence for the purpose of admission of evidence during the course of criminal proceedings, citing Brady v Haughton [2006] 1 IR 1. Mr Agrama contended that while the second letter was plainly directed towards an investigation into alleged offences, it was clear that the evidence was not sought for the purpose of an investigation, but rather for the purpose of admitting that evidence in the course of an appeal against acquittal. It was said that the High Court fundamentally misconstrued the application.

Held by Birmingham J that the appellant?s case was based on a fundamental misconception as to the relationship between a criminal investigation and criminal proceedings; the notion that an investigation halts when the criminal process starts is to fundamentally misunderstand the relationship. While Birmingham J appreciated that the appellant disavowed any suggestion that it was his view that investigation and proceedings cannot co–exist, the Court held that his case was based on the flawed belief that criminal proceedings and investigation are mutually exclusive. Birmingham J required Mr Agrama to go further than establishing merely that his case was an arguable one. The Court held that while Mr Agrama had asserted that the material was required for the purpose of an appeal and not for the purpose of an investigation, this was a bare assertion not supported by evidence, and indeed contrary to the evidence; what was lacking was any evidence that the investigation had closed, or any evidence that the taking up of this evidence was outside the scope of the investigation.

Birmingham J held that, even on the basis of G v The DPP [1994] 1 IR 374, he would refuse leave to seek judicial review and would uphold the decision of the High Court.

Appeal dismissed.

Judgment of the Court delivered on the 22nd day of February 2016 by Mr. Justice Birmingham

1 This is an appeal from the judgment of the High Court (Humphreys J.) of the 8th February, 2016, refusing an application from Mr. Agrama (the appellant) seeking leave to apply for judicial review. The appellant had sought leave to apply for judicial review in respect of a decision of the first respondent (the Minister) of the 18th January, 2016. That decision purported to nominate the second respondent to receive evidence on foot of a letter of request from the Italian authorities, dated the 11th January, 2008, pursuant to the provisions on mutual legal assistance contained in s. 51 of the Criminal Justice Act 1994. The application is not required by statute to be on notice, but that is in fact what happened.

2 The background to the decision of the High Court and to this appeal is complex, indeed tortuous, and it is necessary to refer to that even if only briefly. As O'Donnell J. commented in the course of a judgment ( Agrama v. Minister For Justice [2015] IESC 94) on a related issue: ?a colourful cast of characters and some exotic locations are involved in these judicial review proceedings. ? [The issues have] generated much correspondence and multiple court applications, hearings and rulings?. O'Donnell J. pointed out that the essential fact was that the Italian prosecutors had issued two letters of request to the respondent Minister: (i) on the 17th July, 2006, (the First Letter of Request); and (ii) on the 11th January, 2008, (the ?Second Letter of Request?); it with this second letter that the present appeal is really concerned. By these letters, the Italian 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, given effect to in Ireland by the Criminal Justice Act 1994, superseded by more recent legislation.

3 The second paragraph of the Second Letter of Request states:-

?The request is aimed at investigating a serious and complex fraud which includes offences of money laundering, carried out in the period 1999 – 2005 and which is connected to the purchase of broadcasting rights made by the company Mediaset spa, through the subsidiary companies Mediatrade spa and and RTI spa.?

The letter concludes:-

?I hereby undertake that any information or material obtained in response to this request of mutual assistance will not be used without prior consent of the Irish Department of Justice, Equality and Law Reform, for any other use than the one indicated in this request.?

4 The complex background to this matter is set out in simplified, but clear form by O'Donnell J. at paras. 2 and 3 of his judgment, and is also referred to by Humphreys J. in the course of his judgment in the High Court. Hence, it not necessary to repeat that exercise here. At this stage, suffice is to say that there was, what seems to have been, an extensive criminal investigation conducted in Italy in which Mr. Agrama, along with others, was a person of interest. At a date which was keenly in controversy, Mr. Agrama was charged with various offences. The respondents contend that the date of charging was the 9th March, 2010, despite having at one stage identified January, 2010 as the relevant date, while Mr. Agrama says that the date was the 18th October, 2011. It may be that this controversy is explainable by difficulties in translation or, more precisely, difficulties in identifying the step in the Italian criminal process that equates to the charging of an individual in the Irish criminal justice system. Humphreys J. was prepared to proceed on the assumption that the relevant date was the 18th October, 2011. That was a generous assumption; indeed, it might be thought an unduly favourable assumption.

The proceedings precipitating the present application

5 In March, 2008, the Minister appointed Judge Bridget Reilly of the District Court to take evidence for the purpose of the First Letter of Request. That decision of the Minister gave rise to an application by Mr. Agrama seeking judicial review. Leave was granted in those proceedings on the 7th April, 2008. While those judicial review proceedings were in being, Mr. Agrama was charged with a number of offences, being offences of aggravated misappropriation and of tax fraud. It is to be noted that he was not charged with money laundering.

6 On the 8th July, 2014, the appellant along with all the other defendants in the case was acquitted on all charges. So far as the offence of misappropriation is concerned, that was deemed statute-barred, and that acquittal has not been appealed. It would seem therefore to be final. However, that has been far from the end of the matter.

7 In broad terms, in the first judicial review proceedings Mr. Agrama complained that, in relation to the First Letter of Request, the Italian prosecutor (Mr. de Pasquale) had made a series of incorrect assertions, had selectively quoted materials and had not included highly relevant materials to the extent that the request amounted to a serious abuse of process. The Second Letter of Request, according to Mr. Agrama, seeks pretty much identical material and contains statements which are similarly objectionable.

8 The first set of judicial review proceedings came on for hearing in July, 2011 before Peart J. It appears that progression to that stage had been delayed by disputes pertaining to discovery. In fairness to Mr. Agrama, it may be noted that discovery was ordered in respect of categories of documents where discovery had been resisted, so it would certainly not be fair...