Lynn v DPP

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Birmingham P.
• Judgment Date: 31 May 2019
• Neutral Citation: [2019] IECA 163
• Date: 31 May 2019
• Docket Number: Neutral Citation Number: [2019] IECA 163 [2018 No. 94]

BETWEEN

MICHAEL LYNN

APPLICANT

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FOR FOREIGN AFFAIRS AND TRADE, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

[2019] IECA 163

Birmingham P.

Birmingham P.

Edwards J.

Kennedy J.

Neutral Citation Number: [2019] IECA 163

[2018 No. 94]

THE COURT OF APPEAL

CIVIL

Judicial review – Credit for time served – Mootness – Applicant seeking judicial review – Whether the appeal was moot

Facts: The applicant, Mr Lynn, on 29th January 2018, sought and was granted leave by order of the High Court to apply by way of judicial review for the following reliefs: “(i) A declaration that the respondents or each of them are not entitled to furnish a ‘guarantee to the Federative Republic of Brazil’ (hereinafter Brazil) to the effect that the applicant, who is the subject of extradition proceedings from Brazil on the application of the respondents and who is in custody in Brazil pending surrender, will, in the event of his return to the State and in the event of any sentence being imposed on him in respect of the matters for which he is surrendered, be given credit in any such sentence for any time served in Brazil in connection with his extradition; (ii) an Order prohibiting the respondents or each of them from furnishing a ‘guarantee to Brazil’ to the effect that the applicant will, in the event of his return to the State, and in the event of any sentence being imposed on him in respect of the matters for which he is surrendered, be given credit in any such sentence for any time served in Brazil in connection with his extradition; (iii) an interim and/or interlocutory injunction and/or stay preventing the respondents or each of them from furnishing a guarantee to Brazil to the effect that the applicant will, in the event of his return to the State, and in the event of any sentence being imposed on him in respect of the matters for which he is surrendered, be given credit in any such sentence for any time served in Brazil in connection with his extradition.” On 23rd February 2018, the High Court refused the applicant those reliefs. The applicant appealed to the Court of Appeal from that decision. There were also two notices of motion before the Court, one brought by the Director of Public Prosecutions (DPP) and the second by the other State respondents, seeking to strike out the appeal on the basis that it had become entirely moot. The two issues that arose in the substantive appeal were the credit for time served point and the 30-year sentence point.

Held by the Court that, in circumstances where further reassurance was provided, if any were needed, by the repeated statement of the DPP, both in correspondence and in open court, that if there was a conviction and a sentencing stage was reached, that counsel on behalf of the Director would be submitting that the Judge, in imposing sentence, is required to take into account the period spent in custody, it could be said, not just with a high degree of confidence, but in fact, as a matter of absolute certainty, that if the sentencing stage was reached, account would be taken of the time spent in custody. The Court held that, having had regard to the entitlement to remission and to the fact that the Executive were entitled to release a prisoner at any stage, one could say with certainty that there was no question of Mr Lynn serving a period in custody of more than 30 years.

The Court held that, in those circumstances, it had no hesitation in rejecting the arguments in relation to both points, and so it would dismiss the appeal and uphold the decision of the High Court. In a situation where it was dismissing the appeal on the merits, the Court did not see it as necessary or appropriate to express a concluded view in relation to the arguments about the fact that the appeal was moot, although it expressed the view that it regarded the arguments in favour of the proposition that the appeal was moot as weighty.

Appeal dismissed.

JUDGMENT of the Court delivered on the 31st day of May 2019 by Birmingham P.

1 This is an appeal from a decision of the High Court (MacGrath J.) delivered on 23rd February 2018, refusing the applicant certain reliefs that he sought by way of judicial review. There are also two Notices of Motion before the Court: one brought by the Director of Public Prosecutions and the second by the other State respondents seeking to strike out the appeal on the basis that it has become entirely moot.

2 The slightly unusual situation of the substantive appeal and the strikeout motions coming before the Court at the same time arises in circumstances where the two motions had been listed on two previous occasions. On the first occasion, the hearing of the motions did not proceed because it was indicated on behalf of the applicant, who was the respondent to the motions, that he had a considerable volume of documentation, potentially relevant, which he required to have translated from Portuguese into English. The matter was then listed on a second occasion, and once more, did not proceed. On this occasion, counsel on behalf of the Director explained that a very considerable quantity of documentation, some or all of it material translated from Portuguese, had just been received the previous day and had not been read. While he thought it unlikely that the documentation could be of any real relevance, he did not feel it proper that the matter proceed in a situation where documentation which might be referred to had not been read or considered by him. In that situation, the motions were adjourned once more. At that stage, it was also becoming clear that the issues in the substantive appeal seemed to be relatively net and capable of being dealt with expeditiously. Indeed, there seemed to be an emerging consensus that rather than list the two motions for a third time, that the most effective way to manage Court time was to list the substantive appeal and the motions together and allow all issues be addressed simultaneously.

3 The background to the matters that now come before the Court are somewhat convoluted. Thirty-three warrants for the arrest of the applicant, who is a solicitor, were issued by the District Court in Dublin in 2012 in relation to allegations of theft, making false instruments, and using false instruments.

4 On 4th July 2013, the second named respondent; the Minister for Foreign Affairs and Trade, applied in writing to Brazil, seeking the extradition of the applicant from there to the State. This occurred in circumstances where there was no extradition treaty or rendition arrangement between Ireland and Brazil. In the absence of an extradition treaty, or a rendition arrangement, it was necessary for the Irish and Brazilian governments to enter into an ad hoc extradition agreement covering only the particular case of the applicant. This they did. The application for extradition was supported by an affidavit of Mr. Raymond Briscoe sworn on 13th June 2013. He is a senior solicitor and professional officer in the office of the first named respondent. The applicant was arrested on foot of the extradition request and was taken into custody on 29th August 2013. He remained in custody until his return to this State on 1st March 2018. The actual extradition procedure based on the ad hoc agreement with Brazil involved, it would seem, a multi-stage process: an initial judicial phase, and thereafter, a political and administrative phase. At the judicial stage, the person subject to the extradition request could raise objections before the Brazilian courts as to the legality of what was proposed by way of motions and appeals. If such objections were not upheld, the Brazilian government would then be at liberty to hand the applicant over to the Irish authorities, if it were still minded to do so. It is important to appreciate that in the case of extradition, whether on the basis of a treaty or an ad hoc agreement, the decision on whether or not to proceed with an extradition is an entirely political one (unlike in the case of a rendition arrangement such as the European arrest warrant system where it is an entire judicial one). The sole involvement of the courts in extradition is to review the legality of the application. However, even if the courts clear the way for a possible extradition, a political decision is required to actually proceed with it. In those circumstances, assuming the requested state remains happy to proceed, the process moves on to the administrative stage, also referred to as the ‘handover’ stage. As was his right during the judicial phase, the applicant raised a number of objections to his extradition. On 16th December 2014, the Brazilian Supreme Court delivered judgment dismissing the applicant's challenges to the legality of his proposed extradition and clearing the way for the Brazilian government to proceed to extradite the applicant to Ireland in respect of twenty-one charges of theft, if they were still minded to do so.

5 In light of subsequent controversies, it is of note that in the context of certain motions/appeals in the judicial stage of the extradition proceedings, known as ‘embargos’, that Mr. Briscoe, on behalf of the first named respondent, swore an affidavit on 30th April 2015, in the course of which he averred:

‘[t]he Irish authorities guarantee that “it will deduct from any eventual imprisonment sentence the period of imprisonment time in Brazil enforced through the extradition request”. If Michael Lynn is surrendered and then subsequently convicted of the 21 offences as stipulated in the extradition request, any time that he has spent in custody/in prison in the Federative Republic of Brazil shall be counted towards his sentence.’

Correspondence followed between legal representatives of the applicant and the first named respondent in which the applicant's representatives queried the basis upon which...