Jason Brady v Judge Gerard Haughton and Others

• Jurisdiction: Ireland
• Judge: Denham J.,Murray C.J.,Mrs Justice McGuinness,Mr. Justice Hardiman
• Judgment Date: 29 July 2005
• Neutral Citation: [2005] IESC 54
• Court: Supreme Court
• Docket Number: [S.C. No.282 of
• Date: 29 July 2005

BRADY v DISTRICT COURT JUDGE HAUGHTON & ORS

BETWEEN

JASON BRADY

APPLICANT / APPELLANT

-v-

DISTRICT COURT JUDGE GERARD HAUGHTON, THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

AND

THE ATTORNEY GENERAL

NOTICE PARTY

[2005] IESC 54

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

282/03

THE SUPREME COURT

CRIMINAL LAW

Evidence

Foreign criminal investigations - Request for assistance - Function of designated judge - Fair procedures - Persona designata - Whether administration of justice - Whether suspect should be notified or present for hearing - Salinas de Gortari v Smithwick (No 2) [2002] IR 553 approved - Police Property Act 1897 ( 60 & 61 Vic, c 30) - Criminal Justice Act 1994 (No 15), ss 51, 52 & sch 2. - European Convention on Human Rights, article 6 - Council of Europe Convention on Mutual Assistance in Criminal Matters (1959) - Limited relief granted (282/2003 - SC - 29/7/2005) - [2006] 1 IR 1 - [2005] IESC 54

Facts: The appellant challenged the lawfulness of a decision of the first named respondent to furnish certain items of evidence to the third named respondent (the Minister) for the purposes of transmitting those to the Crown Prosecution Service (CPS) in the United Kingdom (U.K.) pursuant to s. 51 of the 1994 Act in connection with a criminal investigation into an unlawful killing in the U.K. The appellant was granted by way of an application for judicial review an order of certiorari quashing the aforementioned order of the first named respondent. However his application for a declaration that s.51 was repugnant to the Constitution and an Order restraining the transmission to the Minister of the items of evidence was refused. The appellant submitted that his natural and constitutional rights were breached by the failure to provide him with notice of the procedure before the first named respondent and further that the procedure adopted under s.51 operated to frustrate his application under the 1897 Act for the return of his property and in the circumstances amounted to an abuse of process.

Held by the Supreme Court (Murray CJ, Denham, McGuinness, Hardiman, Geoghegan JJ) in allowing the appeal only insofar as to grant a declaration that the Minister was not entitled to transmit to the U.K. authorities the mobile phone and quashing the Order of the first named respondent only insofar as it purported to be an Order of the District Court:

1. That so far as the mobile phone was concerned, the request was confined to information concerning the usage of any mobile phone of the appellant. Consequently, it was not within the powers being exercised by the first named respondent to receive the mobile phone as evidence or furnish it to the Minister.

2. That the first named respondent was not exercising a judicial function in the administration of justice, his task under s.51 was purely administrative.

3.That the items of evidence were transmitted for the purposes of an investigation only and consequently the appellant was not entitled as a right, to be present or represented at the procedure or to receive notice of the procedure before the first named respondent. (McGuinness and Hardiman JJ dissenting on this point only).

4. That there was no evidence from which one could conclude that the s.51 procedure was initiated so as to interfere with the procedure under the 1897 Act. Accordingly, there was no abuse of process or unconstitutional interference with the appellant's property rights.

Reporter: L.O'S.

CRIMINAL JUSTICE ACT 1994 S51

UNITED NATIONS CONVENTION AGAINST ILLICIT TRAFFIC IN NARCOTIC DRUGS & PSYCHOTROPIC SUBSTANCES 1988

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959

CRIMINAL JUSTICE ACT 19941994 SCHED 2

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS ADDITIONAL PROTOCOL 1978

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 3

VIENNA CONVENTION ON THE LAW OF TREATIES 1969

POLICE & CRIMINAL EVIDENCE ACT 1984

CRIMINAL JUSTICE ACT 1994 S51(5)

CRIMINAL JUSTICE (INTERNATIONAL COOPERATION) ACT 1990 S3(8) (UK)

CRIMINAL JUSTICE ACT 1994 S51(1)

CRIMINAL JUSTICE ACT 1994 S51(4)

SALINAS DE GORTARI v SMITHWICK (NO 2) 2000 2 IR 553

MCDONALD v BORD NA GCON 1965 IR 217

CRIMINAL JUSTICE ACT 1984 S10

CRIMINAL JUSTICE ACT 1988 S25 (UK)

CRIMINAL JUSTICE ACT 1988 S23(1) (UK)

CRIMINAL JUSTICE ACT 1988 S23(2) (UK)

CRIMINAL JUSTICE ACT 1994 S52(7)

CRIMINAL JUSTICE ACT 1988 S23

CRIMINAL JUSTICE ACT 1951 S5

SINN FEIN FUNDS CASE 1950 IR 67

POLICE PROPERTY ACT 1897 S1(1)

JENNINGS v QUINN 1968 IR 305

CRIMINAL JUSTICE ACT 1994 PART VII

CONSTITUTION ART 40

CRIMINAL JUSTICE ACT 1994 S51(15)

CRIMINAL JUSTICE ACT 1994 S51(2)

CRIMINAL JUSTICE ACT 1994 S51(6)

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

EUROPEAN CONVENTION ON MUTUAL ASSISTANCE IN CRIMINAL MATTERS 1959 ART 1

CRIMINAL JUSTICE ACT 19941994 SCHED 2 PARA 4(1)

CRIMINAL JUSTICE ACT 19941994 SCHED 2 PARA 4(2)

CRIMINAL JUSTICE ACT 1994 S51(2)(b)

EUROPEAN ARREST WARRANT ACT 2003

EAST DONEGAL CO-OP v AG 1970 IR 317

CRIMINAL JUSTICE ACT 1994 S52

CRIMINAL JUSTICE ACT 1994 S53

CRIMINAL JUSTICE ACT 1994 S55

CRIMINAL JUSTICE ACT 1994 S52(10)

CRIMINAL JUSTICE ACT 1994 S52(6)

CRIMINAL JUSTICE ACT 1994 S52(7)

CRIMINAL JUSTICE (INTERNATIONAL COOPERATION) ACT 1990 S3(7) (UK)

CRIMINAL JUSTICE ACT 1988 S25(b) (UK)

CRIMINAL JUSTICE (INTERNATIONAL COOPERATION) ACT 1990 S3(8)(a) (UK)

CRIMINAL JUSTICE ACT 1994 S52(10)(a)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 6(3)(d)

HAUGHEY, IN RE 1971 IR 217

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

SINNOTT v MIN EDUCATION 2001 2 IR 545

GOOLD v COLLINS & ORS 2005 1 ILRM 1

HONIG v DOE 484 US 305 1988

BOROWSKI v CANADA 1989 1 SCR 342

M v AN BORD UCHTALA 1977 IR 287

MURPHY v ROCHE 1987 IR 106

CRIMINAL JUSTICE (INTERNATIONAL COOPERATION) ACT 1990 S4

CRIMINAL JUSTICE ACT 19941994 SCHED 2 PARA 4(2)

1 JUDGMENT delivered the 29th day of July 2005 , by Murray C.J.

2 In these proceedings the applicant / appellant (hereinafter the appellant) challenges the lawfulness of certain procedures carried our pursuant to s. 51 of the Criminal Justice Act, 1994giving effect to a request received from the Crown Prosecutions Service of the United Kingdom for assistance in obtaining evidence in the State in connection with a criminal investigation into an unlawful killing being carried on in the United Kingdom. Section 51 of the Act of 1994, together with the second Schedule of that Act, provides for a mechanism and procedures which enable the State to fulfil its obligations under the European Convention on Mutual Assistance in Criminal Matters.

3 The first named respondent, a Judge of the District Court, exercised functions pursuant to s. 51 of the Act whereby he received certain items of evidence which he decided, having regard to the request, should be furnished to the third named respondent, the Minister, for the purpose of enabling the latter to transmit them to the Crown Prosecution service in the United Kingdom. The appellant challenges the lawfulness of the decision of the first named respondent. The grounds and context of that challenge are dealt with later.

Background Facts

4 In December 2000 the appellant was arrested by the Garda Síochána in respect of criminal offences unrelated to the criminal investigation in the United Kingdom with which these proceedings are concerned. While the appellant was under arrest the Gardaí took possession of certain items of his property. The appellant subsequently pleaded guilty to offences in this jurisdiction connected with his arrest and was duly sentenced. By letter dated 20th December, 2001 the United Kingdom prosecuting authority requested assistance in relation to their investigation into offences of murder, causing grievous bodily harm with intent and burglary. That request was supplemented by a further letter dated 21st February, 2002 from the same authority in the United Kingdom. The request included one for the delivery to the United Kingdom authority items of clothing attributable to the appellant as well as a photograph of the appellant and a request that he be medically examined for any injuries he may have sustained during an incident stated to have occurred in the United Kingdom on the 10th December, 2001. The request is referred in more detail later in the judgment.

5 On 5th March, 2002 the appellant served an application pursuant to the Police (Property) Act, 1897 seeking the return of the property which the Gardaí had taken from him in the course of his arrest in December 2000. This application was made returnable before the District Court on 26th March, 2002. That application relates to property, namely clothing of the appellant, which is also the subject matter of the request and which the District Court Judge decided should be furnished for transmission to the UK authorities pursuant to s. 51.

6 On 14th March, 2002 Mr. James Clerkin, a civil servant in the Department of Justice, on behalf of the Minister for Justice, Equality and Law Reform (hereinafter the Minister) nominated Judge Gerard Haughton, a Judge of the District Court (hereinafter the first named respondent) to receive, pursuant to s. 51 of the Act of 1994, evidence to which the aforementioned request related.

7 On 19th March, 2002 two witness summonses were issued in respect of two persons, one of whom is the sister of the appellant and the other being her husband, requiring their attendance at a sitting before a Judge of the District Court in Dublin for the purpose of giving evidence on certain specified matters related...