Siritanu v DPP and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 02 February 2006
• Neutral Citation: [2006] IEHC 26
• Court: High Court
• Docket Number: [No. 668 J.R./2005]
• Date: 02 February 2006

[2006] IEHC 26

THE HIGH COURT

[No. 668 J.R./2005]

S (T) v DPP

JUDICIAL REVIEW

BETWEEN

TUDOR SIRITANU

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE COUGHLAN

RESPONDENTS

UN CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 ART 31

R v UXBRIDGE MAGISTRATES COURT, EX PARTE ADIMI 2001 QB 667 2000 3 WLR 434 1999 4 AER 520

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26

CONSTITUTION ART 30.3

PROSECUTION OF OFFENCES ACT 1974

R (EUROPEAN ROMA RIGHTS CENTRE & ORS) v IMMIGRATION OFFICER AT PRAGUE AIRPORT & ANOR 2004 2 WLR 147 2004 QB 811 2003 4 AER 247

SOFINETI v JUDGE ANDERSON & ORS 2008 3 IR 417 2008/59/12249 2004 IEHC 440

KAVANAGH v GOVERNOR OF MOUNTJOY PRISON & ORS 2002 3 IR 97

EVISTON v DPP 2002 3 IR 260

IMMIGRATION:

Criminal law

Asylum - Travelling on false documents - International convention - Legitimate expectation - Whether applicant had legitimate expectation that United Nations convention would be considered - Whether only binding in international law - Whether criminal prosecution should be prohibited - Prosecutorial discretion - Sofineti v Anderson (Unrep, O'Higgins J, 18/3/2004) followed; R. v Uxbridge Magistrates Court, ex parte Adimi [2001] QB 67; R (European Roma Rights) v Prague Immigration Offices [2004] 2 WLR 147; Kavanagh v Governor of Mountjoy Prison [2002] 3 IR 97 considered - Constitution of Ireland 1937, Articles 29.6 and 30.3; Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), s 26; United Nations Convention Relating to the Status of Refugees 1951, art 31 - Leave to apply for judicial review refused (2005/668 JR - Dunne J - 2/2/2006) [2006] IEHC 26

S (T) v DPP

Facts: The applicant was charged with an offence under the Criminal Justice (Theft and Fraud) Offences Act 2001. In essence, this application sought to compel the respondent to consider the provisions of Article 31 of the United Nations Convention Relating to the Status of Refugees 1951 on foot of a request made in a letter by the solicitors for the applicant. The applicant sought to stop his prosecution from continuing until such time as such request was complied with.

Held by Dunne J. in refusing the relief sought that the effect of the relief being granted would be to delay any prosecution pending a decision being made. Therefore, the applicant had to show there was a serious risk of an unfair trial and since this had not been shown the application had to fail. The applicant had not satisfied the requirement to show that there were substantial grounds which could give rise to leave to apply for judicial review.

Reporter: R.W.

Ms. Justice Dunne

1 This is an unusual application for judicial review. Originally the matter came before the court by way of two notices of motion dated the 18th July, 2005. The first of those was an application for an interlocutory injunction restraining the respondent his servants or agents from taking any further step in the prosecution of the applicant in the proceedings entitled "The People (at the suit of the Director of Public Prosecutions) v. Tudor Siritanu" bearing the charge sheet number 369913 pending the determination of the proceedings. The second notice of motion was for leave to apply for (i) an order of prohibition by way of application for judicial review seeking to restrain the respondent, his servants or agents from prosecuting the applicant in the said proceedings, (ii) a declaration by way of application for judicial review that the applicant is entitled to the benefit of article 31 of the United Nations Convention Relating to the Status of Refugees, 1951, (iii) a declaration that the continued prosecution of the applicant is an abuse of the process of the Court and (iv) an order of mandamus by way of application for judicial review directing the respondent to consider the request of the applicant that the said prosecution be withdrawn on the ground that the applicant is entitled to the benefit of article 31 of the United Nations Convention Relating to the Status of Refugees, 1951.

2 It would appear from the papers before me that the application for the interlocutory injunction restraining the District Court proceedings together with the application for leave to apply for judicial review came before the court on the 21st of June, 2005. It appears that it was on that date that the applicant was directed to serve notice of the application for an interlocutory injunction and the notice of motion for leave to apply for judicial review on the respondent. Thereafter, the notices of motion came before the court on the 18th of July, 2005, and appear to have been adjourned until the matter came on for hearing before me on the 30th day of January, 2006. I have set out the history in order to explain how this matter came before me as an application for leave to apply for judicial review on notice. At the outset of the hearing before me it was agreed by both parties that the applicant herein had to establish substantial grounds in order to succeed in his application for leave to apply for judicial review.

3 When the matter came on for hearing before me counsel for the applicant, Mr. Dillon Malone, made it clear to me that he no longer sought the reliefs set out at paragraphs (a) and (b) of his 2nd notice of motion and relied simply on paragraphs (c) and (d) thereof. In effect therefore, his claim was limited to seeking an order of mandamus directing the respondent to consider the request of the applicant that the prosecution be withdrawn on the grounds that the applicant is entitled to the benefit of article 31 of the United Nations Convention Relating to the Status of Refugees, 1951. Further Mr. Dillon Malone accepted that there was nothing in the papers before me of any kind to indicate or to demonstrate that any relief was sought against the second named respondent and on that basis I directed that the second named respondent should not be a party to the proceedings. The second named respondent was as is usual in such circumstances, not represented before the court. I should add that counsel for the applicant came into this matter after these proceedings were initiated.

4 The background to this matter is set out in the affidavit of the applicant sworn herein on the 21st day of June, 2005. He states that he is a national of Moldova. He arrived at Dublin Airport on the 7th of March, 2005. He had in his possession false travel and identity papers. He stated that his purpose in coming here was to seek asylum. He left Moldova on the 4th of March, 2005, and travelled overland by minibus via Romania, Hungry and Austria to Italy. He arrived in Venice on the 6th of March, 2005, at 2am. That day having paid a sum of €100 to a man and furnished a passport sized photograph to the same man at the main train station in Venice he then purchased from the said man a false Lithuanian passport. He also stated that he gave his own passport to a friend of his who resided in Venice, for safe keeping. On the 7th of March he took a flight from Venice to Dublin and arrived in Dublin Airport at approximately 9pm.

5 On arrival the applicant herein was arrested and charged in respect of certain alleged offences. Subsequently on the 9th of March, 2005, the applicant was interviewed by Detective Garda Breandan O'Somachain, a member of An Garda Síochána attached to the Garda National Emigration Bureau. It appears that the applicant made an application for asylum on the 9th of March, 2005, as he was about to be removed back to Venice.

6 Originally the applicant was charged with certain offences under the Refugee Acts relating to the destruction of papers and his failure to establish his identity. Ultimately these charges were withdrawn as his true passport was obtained by him from his friend in Italy. He was, however, subsequently rearrested and charged with the offence which is now the subject of District Court proceedings. When the matter was before the District Court on foot of the said charge it was indicated to the District Court that an application was being made to the respondent seeking to have the proceedings withdrawn on the grounds that his prosecution would be in breach of Article 31 of the United Nations Convention Relating to the Status of Refugees, 1951. A letter dated the 16th of May, 2005, was sent by solicitors on behalf of the applicant to the respondent requesting that the prosecution be withdrawn.

7 The letter dated the 16th of May, 2005, from the applicant's solicitor to the respondent herein set out brief details of the background and then went on as follows:

"In view of this current [prosecution] against our client we rely upon Article 31 of the Refugee Convention, 1951 that prohibits convention countries from [prosecuting] asylum seekers for travelling on false documents.

We therefore rely upon an English case ofR. v. Uxbridge Magistrates Court, ex parte Adimi [2001] Q.B. 67 to support our claim."

8 (The solicitor's letter inadvertently used the word persecution as opposed to prosecution in the passage quoted above).

9 The respondent herein has not furnished any replying affidavit but it was agreed by both sides that a letter dated the 8th of September, 2005, from the office of the respondent to the solicitors for the applicant should be before the court although the same was not formally exhibited in any affidavit. The letter was considered by me on that basis. As that letter to a large extent encapsulated matters that were advanced in legal argument before me I think it would be helpful to set out that letter in full.

"Dear Sirs,

We refer to your letter of 16th May, 2005, in which you call upon the Director of Public Prosecutions to withdraw the charge preferred against your client namely charge contrary to s. 26 of the Criminal Justice (Theft and Fraud Offences) Act,2001.

You give as a basis for that demand the...