Agrama v MJELR: “A colourful cast of characters, and some exotic locations”

Default_en-default_picture1-1Section 51 of the Criminal Justice Act 1994 (here), which has since been replaced, gave effect to the State’s obligation under the European Convention on Mutual Assistance in Criminal Matters to provide for the taking of evidence within the State on request by another state. This case concerned the exercise of the Minister’s discretion when such a request is received. O’Donnell J (here) held that:

35 In a case like this, which is an investigation case, this suggests that a minister must be satisfied that the request is from an appropriate body; that there are reasonable grounds for suspecting that an offence under the law of that country has been committed; and that an investigation is being carried out there. Even when such conditions are satisfied, the Minister has a discretion not to nominate a District Justice under section 51. Having regard to the objective of mutual assistance, it will be only on rare occasions that the Minister would refuse. Refusal would normally require compelling reasons. …

Background

In the words of O’Donnell J, this case involved a colourful cast of characters and some exotic locations. Agrama is an American business man who brought judicial review proceedings seeking to quash the Minister’s decision to appoint two District Court judges, under s 51 0f the 1994 Act, to take evidence from him after receiving a request from an Italian prosecutor.

The colourful cast includes former Italian Prime Minister Silvio Berlusconi, and the exotic locations referred to are Hong Kong and the Netherland Antilles. The Italian prosecutor was investigating fraud and money laundering through the purchase of television rights and their resale at a highly inflated price ($170 million per year) with the proceeds being channeled back to key individuals through Swiss bank accounts. And there was an Irish registered company connected to Agrama involved. The judgment has no more detail than that.

The Italian prosecutor wrote to the Minister seeking that evidence be taken from Agrama. The Minister appointed a District Court judge to do so. Agrama’s solicitors sought an adjournment, during which time they wrote to the Minister pointing out a number of inaccuracies in the prosecutor’s letter and requesting a revisit of the decision on grounds that the request was an abuse of process. The Minister conferred by letter with the prosecutor, who replied by a second letter addressing the objections made. The Minister’s next letter to Agrama did not address any of the alleged inaccuracies but confirmed the new court date and informed that, due to illness, a second judge had to be appointed to take Mr Agrama’s evidence.

S 51 of the 1994 Act

Previous cases have looked at aspects of s 51. In Salinas de Gortari v Smithwick [2000] 2 IR 553, McGuinness J in the High Court found that s 51 permitted a District Court judge to compel a witness to attend court but not to hold them in contempt for failure to answer questions, nor did it provide any penalty for refusal to give answers. And in Brady v Haughton [2006] 1 IR 1, Murray CJ in the Supreme Court held that s 51 did not involve the administration of justice. In such cases the judge was not conducting an inquiry or making a determination of facts: the judge is a persona designata performing an administrative function, and the function of the District Court is limited to issuing a summons, if needed.

Case History

The District Court judge took Agrama’s evidence in April 2008; he applied to the High Court for judicial review of the Minister’s decision, claiming that it was vitiated by misleading and inaccurate information which constituted an abuse of process. The proceedings did not run smoothly. In the High Court, Peart J issued an interim decision, but he did not issue the substantive judgment until January 2013, when he refused Angrama’s claim. Agrama appealed to the Supreme Court.

In the Supreme Court Agrama limited his appeal to one issue: that the Minister acted ultra vires in adopting an fixed policy and in not considering his representations.

O’Donnell J dismissed the appeal.

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