THE SUPREME COURT
Appeal No.s 534 & 555/2013
Denham C.J.
Hardiman J.
O’Donnell J.
McKechnie J.
Clarke J.
FRANK AGRAMA
Applicant
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,
DISTRICT JUDGE CATHERINE MURPHY AND
DISTRICT JUDGE BRIDGET REILLY
Respondents
Judgment of O’Donnell J delivered on the 9th day of December 2015
1 A colourful cast of characters, and some exotic locations, are involved in these judicial review proceedings. The case has sprawled over six lever arch files of appeal papers, one motion book, and even one large book of transcripts. It has generated much correspondence, and multiple court applications, hearings, and rulings. All of this can distract attention from the fact that at its core, the issues for determination are relatively net. While it will be necessary to address these matters in greater detail, the essential fact is that an Italian prosecutor has issued two letters of request of the 17th of July, 2006, (“the first letter”), and the 11th of January, 2008, (“the second letter”), to the respondent Minister for Justice Equality and Law Reform (“the Minister”). By those letters, the 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 signed at Strasbourg on the 20th of April, 1959 (“the Convention”). The Convention has been given effect in Irish law by the provisions of Part VII of the Criminal Justice Act 1994 (“the 1994 Act”) now superseded and replaced by later legislation, which, however, is not relevant to these proceedings. The first letter was executed in part, with some evidence having been taken by the District Court and submitted to the Minister and transmitted to the corresponding Italian authorities. These proceedings have been brought by Mr. Frank Agrama, a U.S. business man who seeks to quash the decision of the Minister to appoint the second and third named respondents, respectively, to receive and transmit to the Italian authorities evidence sought under the requests. The proceedings also seek other consequential relief including orders seeking the return of any information and evidence transmitted under the first request.
2 The first letter runs to 12 pages. Simplifying the matter considerably for the purposes of setting the dispute in context, the first letter informed the Minister that Fabio De Pasquale, the public prosecutor of the court in Milan, was conducting an investigation into what was described as a “serious and complex fraud, which includes offences of money laundering - carried out in the period 1999-2000”. These offences were alleged to be connected to the purchase of broadcasting rights by the company Fininvest S.p.A. through subsidiary companies Media Trade SpA. and RTI SpA. Mediaset, which was, I believe, a parent of Media Trade, was part of the Berlusconi Group, which, at the time, was an important group of entertainment companies associated with Silvio Berlusconi, the well known Italian businessman, politician, and for some of the period covered by these events, the controversial Prime Minister of Italy. Signor Berlusconi was a large, if not the largest shareholder, whether directly or indirectly, in Mediaset, although as the letter of request points out, Mediaset is a listed company on the Italian stock exchange, whose shares are also owned by private investors and financial institutions.
3 Again, and in a very simplified form, it appears that the transactions being investigated related to the sale of broadcasting rights by the U.S. conglomerate Paramount, and which rights were ultimately purchased and exercised by Mediaset companies. The allegation was that the rights were initially purchased by intermediary companies named Wiltshire Trading and Melchers based in Hong Kong and Netherland Antilles, and then sold to Mediaset companies at substantially inflated prices. It was also alleged that payments of monies were made by Wiltshire to individuals owning accounts in Switzerland, which, it was alleged, “could reasonably be understood to represent a system for “returning” part of the illegal proceeds made by Wiltshire Trading Ltd through the sale of television rights at inflated prices to Mediaset Group companies”. The Wiltshire and Melcher companies were alleged to be associated with Mr. Agrama. It was also alleged that in the year 2000 and thereafter, similar transactions were carried out through intermediary companies which had been incorporated in Ireland, Olympus Trading Limited, and Olympus Trading (Ireland) Limited. The sums alleged to be involved are enormous. It was, for example, alleged that the difference between the amount paid in the period 1988-1999 by the Berlusconi group companies to the Agrama related companies and the sum paid by the Agrama companies to Paramount for the products was $170 million. It appears that the Irish companies were established by a company formation business, FPR Trust Company Limited, 101 Furry Park Road, Dublin 5, which supplied directors to the companies. The first request, therefore, asked the Irish authorities to acquire documentation at the premises of FPR Trust Company Limited concerning Olympus Trading Limited, including the documentation relating to the incorporation of the company and all company documents. The request also sought the provision of contracts for the sale of the broadcasting rights to the companies Media Trade SpA and RTI SpA as well as contracts for the purchase of the broadcasting rights. Finally, the request sought documentation concerning bank accounts at National Irish Bank, 27 College Green, Dublin 2.
4 A feature of Italian law which looms large in these proceedings, and to which both parties have referred, is the unusual provisions of the Italian statute of limitations in criminal matters as explained in the second letter of request as follows:
“After the formulation of the accusations by this Public Prosecutor and while the preliminary hearing was underway, the Italian Parliament (in December 2005) reduced the period of time after wich [sic] the Statute of Limitations would come in to effect for several offences, including those being examined in the ongoing Mediaset hearing.
It must be emphasised that in the Italian legal system the Statute of Limitation is the time within which
• The criminal lawsuit must be brought against the defendants, and
• The trial (and any subsequent appeal) must be concluded.
This means that even after the indictment and the beginning of the trial - and even during the trial itself - the Statute of Limitation continues to run. Therefore the expiry of the limitation period can occur during the trial - this is not rare with the new 2005 Law - and in this case for some charges (or even all charges) the trial would come to an end.”
Much of what occurred in this case can be understood when viewed in the context of these provisions.
5 The procedure under the 1994 Act did not require notice to any party other than the person or persons from whom evidence was sought. However, Mr. Agrama or his representatives became aware that the process had been initiated under the 1994 Act. This was hardly surprising since it appears that there were also applications for assistance made and for the obtaining of evidence both in Hong Kong and in the United States, and perhaps elsewhere. Messrs Arthur Cox & Company were retained to act on behalf of Mr. Agrama, who then instructed counsel to appear in the District Court on the 16th of May, 2007, to seek an adjournment to allow the making of representations. The matter was adjourned, and on the 29th of May, 2007, Messrs Cox & Company delivered an eleven page letter (“29th May letter”) to the Chief State Solicitor’s Office (“CSSO”). Although addressed to the Chief State Solicitor and marked for the attention of a solicitor employed in that office, it appears that the substance of the letter was a representation through the CSSO to the Minster calling upon him to revisit the consideration of the letter of request and to withdraw the designation of the second named respondent. In 24 numbered paragraphs over 11 pages with 22 attachments, some of them substantial, a number of alleged inaccuracies and misrepresentations were identified in the first letter of request, and it was expressly submitted that the placing of such a misleading request before the Minister represented “a serious abuse of the process envisaged by the Convention”. It will be necessary to address the detail of this objection later. For present purposes it is, however, sufficient to note that this was the substance of the representation.
6 The Chief State Solicitor’s Office wrote to Messrs Arthur Cox on the 7th of June, 2007, pointing out that the second named respondent had been unavailable to sit due to illness and that the CSSO would revert to Messrs Cox when the matter was re-entered. The letter continued:
“I also acknowledge receipt of your letter of the 29th of May 2007 (received in this office on the 30th of May) and confirm that same has been forwarded via the Department of Justice to the investigating Magistrate Mr. Fabio De Pasquale and I confirm that I will revert back to you when instructions have been received from him regarding the contents of same.”
It is now apparent that there was indeed contact with the Italian Ministry for Justice, and also with the prosecutor Mr. De Pasquale, who at one stage sent an email of the 2nd of July 2007, to the CSSO stating that he was preparing a “statement addressing all the points in the Cox brief”. (Later indeed Messrs Cox discovered from the court file in the Central Office that the Italian prosecutor went so far as to lodge an application seeking to have himself joined to the judicial review proceedings, but in the event, no such application was moved).
7 The next communication to Messrs Cox on behalf of Mr. Agrama did not address any of the points made in the 29th May letter. Rather, a letter of the 11th of March, 2008, confirmed that a date for hearing had been received of the 9th of April, 2008, and that due to the illness of the second named respondent (District Justice Murphy) the matter would now be dealt with by the third named respondent (District Judge Reilly). That letter continued:
“I now enclose herewith for your attention copy of the four Witnesses summonses which had been issued by Judge Reilly on Monday the 10th of March last.
I also enclose herewith for your attention copy letter of request dated 11th January, 2008 received from the Public Prosecutor in this case to (sic) Mr. Fabio De Pasquale. Please note that the application presently before the courts listed for hearing on the 9th of April next will be based on the enclosed Letter of Request.”
8 This letter was the first that Cox’s had heard of any second letter of request. The second letter was broadly similar to the first, but contained some further information as to matters which had transpired since the first letter had been issued. Thus, for example, it was able to state that the investigation had reached the point where there had been a preliminary hearing resulting in indictments:
“At the end of several months of hearings, the Judge for the preliminary hearing ordered on the 7th July 2006 the indictment of Frank Agrama, Silvio Berlusconi, Marco Colombro, Fedele Confalonieri, Giorgio Dal Negro, Paolo Del Bue, Manuela De Socio, Gabriella Galetto, Erminio Giraudi, Daniele Lorenzano, David Mills and Carlo Scribani Rossi for all the offences not affected by Statute of Limitation (embezzlement from 1998 to 1999; tax fraud related to the tax returns of 1998 and 1999; false accounting 1998 and 1999; episodes of money laundering committed during the period 1994-1997) to proceed.”
A trial had begun on November 21st 2006, and during that trial “the Statute of Limitation was declared for all the charges of embezzlement and false accounting”. Accordingly, the trial continued on charges of tax fraud, but at the hearing of November 19th 2007, the public prosecutor:
“pressed new charges of tax fraud on various defendants including Berlusconi and Agrama in relation to further unlawful acts (connected to the purchase of television rights) that have been discovered or definitively quantified - subsequently to the request of indictment. These are offences committed up to October 26th 2004. In relation to these offences the Statute of Limitation will definitively expire on April 26th 2012.”
Again, while the letter was in broadly similar format to the first letter, it now described the proceedings as being 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 RTI spa”. (Emphasis added). While the description of the subject matter of the investigation had not changed, the period of the investigation had been extended.
9 These proceedings were commenced and leave to seek judicial review was obtained on the 7th of April, 2008. Relief was sought on 24 grounds, including that it was alleged that the letter of request was vitiated by misleading and inaccurate request (grounds v, vi) and that the letter constituted an abuse of process (ground x). Importantly for present purposes, at ground (xiii), it was alleged that despite representing that he would respond to the substance of the allegations concerning the first letter of request, “the first named respondent failed to respond or otherwise properly deal with said allegations” and at ground (xiv) it was asserted that the Minister had failed or refused to reconsider his decision. A statement of opposition was filed together with a short replying affidavit. It will be necessary to address those documents in greater detail in due course. However, to understand the dispute between the parties, it may be useful to pause at this point and set out the somewhat particular legal regime involved.
10 The 1994 Act
Section 51 of the Criminal Justice 1994 is contained in part VII of that Act. That part deals with international cooperation in criminal matters. It includes external confiscation orders, external forfeiture orders, provisions for the service in the State of process issued outside the State, and correspondingly for service outside the State of process issued in the State. Section 51 provides for the taking of evidence in the State for use outside the State, and section 52 is a reciprocal provision providing for the obtaining of evidence outside the State for use in the State. Section 53 deals with the transfer of prisoners in the State to give evidence or assist in investigation outside the State. Once again, s. 54 provides for a reciprocal provision permitting a prisoner to be transferred from outside the State to the State for the purpose of giving evidence or assisting an investigation.
11 At the relevant time, s.51 provided as follows:
“(1) This section shall have effect where the Minister receives—
(a) from a court or tribunal exercising criminal jurisdiction in a country or territory outside the State or a prosecuting authority in such a country or territory, or
(b) from any other authority in such a country or territory which appears to him to have the function of making requests of the kind to which this section applies,
a request for assistance in obtaining evidence in the State in connection with criminal proceedings that have been instituted, or a criminal investigation that is being carried on, in that country or territory.
(2) If the Minister is satisfied—
(a) that an offence under the law of the country or territory in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and
(b) that proceedings in respect of that offence have been instituted in that country or territory or that an investigation into that offence is being carried on there,
he may, if he thinks fit, by a notice in writing nominate a judge of the District Court to receive such of the evidence to which the request relates as may appear to the judge to be appropriate for the purpose of giving effect to the request.
(3) For the purpose of satisfying himself as to the matters mentioned in subsection (2) (a) and (b) of this section the Minister may regard as conclusive a certificate issued by such authority in the country or territory in question as appears to him to be appropriate.
(4) In this section “evidence” includes documents and other articles.
(5) The Minister shall not exercise the power conferred on him by subsection (2) of this section unless provision is made by the law of the country or territory or by arrangement with the appropriate authority thereof that any evidence that may be furnished in response to the request will not, without his consent, be used for any purpose other than that specified in the request.
(6) The Second Schedule to this Act shall have effect with respect to the proceedings before the nominated judge in pursuance of a notice under subsection (2) of this section. …”
12 The second schedule to the Act regulated the taking of evidence for use outside the State and at Article 1 thereof provided that the judge would have like powers for securing the attendance of a witness for the purpose of the proceedings as the District Court has for the purpose of any other proceedings before that court. Article 2 provided the power to administer oaths, and Article 3 provided that a person should not be compelled to give, in the proceedings, any evidence he could not be compelled to give in criminal proceedings in the State, or, in certain circumstances, in criminal proceedings in the country or territory from which the request was made. The second schedule also contained provisions permitting a person not to be compelled to give evidence if it would be prejudicial to the security of a State, nor was a person to be compelled to give evidence in his capacity as an officer or a servant of the State. The schedule also contained other provisions which are not relevant here.
13 Insofar as s.51 applied to the present case, it was triggered when the Minister received from a prosecuting authority a request for assistance when obtaining evidence in the State in connection with a criminal investigation that was being carried on in that country or territory. The Minister could nominate a District judge to receive such evidence if satisfied, as set out above, (a) that an offence had been committed or there were reasonable grounds for suspecting that an offence had been committed, and (b) that an investigation into that offence was being carried out in that country.
14 Section 51 had been the subject of two important decisions of the Superior Courts, at the time the first request was issued. In Salinas de Gortari v. Smithwick & ors [2000] 2 IR 553, McGuinness J., in the High Court, had dealt with judicial review proceedings in respect of a request made from appropriate French authorities to obtain evidence from the applicant, the former President of the Republic of Mexico, then residing in this jurisdiction. While the High Court refused the applicant’s claim for relief, it nevertheless observed that the second schedule gave a District judge power to secure the attendance of a witness, but those powers did not extend to holding a witness in contempt if the witness failed to answer, nor did it impose any penalty on the witness for failing to answer any questions. The Act could bring a horse to water, in other words, but did not do anything if it did not drink.
15 In Brady v. Haughton [2006] 1 IR 1, the Supreme Court gave extensive consideration to the provisions of s.51 in the context of request for assistance in a criminal investigation then being carried out in the United Kingdom. The Court, by a majority (Murray C.J., Denham and Geoghegan JJ.; McGuinness and Hardiman JJ. dissenting in part) held that the operation of the Act did not involve the administration of justice, and that the Act was not unconstitutional in permitting evidence to be taken without notice to a party who may have been affected by the taking of that evidence. The majority judgments contain useful observations on the nature of the Act.
16 In his judgment, Murray C.J. pointed out, firstly, that the Act of 1994 appeared to have been enacted to permit the State to sign and ratify the Convention. However, mutual assistance between states in criminal matters, particularly in the case of providing information or evidence, had, he observed, never been wholly dependent on international conventions or agreements. There was a general duty to execute a request for judicial assistance by a foreign court based on comity between nations, a principle to be found in the Vienna Convention, in turn reflecting a general principle of international law. Bilateral and multilateral agreements can facilitate such assistance. States, and particular neighbouring states or those with close ties, had always engaged in practical assistance through administrative channels. States could exchange information and evidence in relation to the movement of stolen goods, proceeds of crime, or movements of persons engaged in such offences as people trafficking or details of their previous convictions. Equally, the police of one state could take a written statement from a potential witness willing to provide it, for transmission to another jurisdiction. None of this required statutory authority, although in some cases it might be desirable to provide a statutory framework in order to give effect to common obligations, or rules of procedure under a treaty, or I might add, to give power to administer oaths or summon witnesses. Part VII of the Act was to be approached in this context. Statutory authorisation is not required to permit the State to cooperate with other states.
17 Murray C.J. pointed out that under part VII of the 1994 Act, a District judge was not acting as a judge appointed under the Constitution and administering justice. Rather, such a judge was effectively a persona designata, performing an administrative function. The function and powers could have been conferred on another individual or body. The judge conducted no inquiry or investigation and made no finding or conclusion concerning the conduct of any person. The designated judge simply engaged in the process of identifying what evidence before him (or her) had been sought in the request and furnishing it to the Minister for transmission to the requesting authority. As so understood, s.51 was no more than a procedural conduit for the purpose of enabling a minister to transmit evidence in accordance with the obligation of the State under the Convention. The Act did grant a power to compel the attendance of witnesses, but that was a power which could be and was regularly conferred upon tribunals and other non judicial bodies, and did not mean that the operation of Part VII was part of the administration of justice under the Constitution.
18 In dealing with the argument that notice should be given to the target of the investigation, Murray C.J. observed that it may not always be possible to identify any such person at the time the request is made. Alternatively, there may be many such persons involved. But as a matter of domestic law, a suspect was not entitled to be informed of an evidence gathering exercise and there was no reason to import such a requirement here. In my view, it is important to the understanding of the Act that it is triggered by a foreign investigation of an offence rather than necessarily a particular identified person. At pp. 17-18 of the report, Murray C.J. stated:
“The test is the investigation of an offence and not the investigation of a particular person. One could probably assume that in most cases a particular person or persons may be identified as being, to a greater or lesser degree, the object of the investigation in relation to a relevant offence or offences. This is obviously the case in the present instance but the section is clearly intended to apply to readily envisagable circumstances where the relevant authority in the requesting country seeks evidence in relation to the commission of an offence even though it has not yet identified any individual as a potential culprit. The evidence sought may be concerned with the identity or recent movements of a deceased victim or evidence from some person in this jurisdiction who had witnessed a serious offence and thus was in a position to give material evidence concerning the commission of the offence without being in the position to implicate or identify its currently unknown author. These are just a couple of examples illustrating that the procedures pursuant to s. 51 may fall to be applied even though they could not then be considered as affecting any identifiable person.”
19 Denham J. agreed with the judgment and approach of Murray C.J. At p. 44 of the report (para.126 of the judgment) she set out what she considered to be safeguards under the Act:
“The Convention provides for mutual assistance between different jurisdictions, which have different legal systems. The safeguards inherent in the system are as follows:
(i) the request must go to the [Minister] to be screened;
(ii) the request must come from a court or tribunal exercising criminal jurisdiction or a prosecuting authority or from an authority which appears to the [Minister] to have the required function;
(iii) the request for assistance must be in relation to, and must so specify, either a criminal proceeding which has been instituted, or a criminal investigation which is being carried out, in the requesting State;
(iv) the assistance relates only to the specific request;
(v) the [Minister] has to be satisfied: (a) that an offence under the law of the requesting country has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and (b) that proceedings have been instituted or that an investigation into that offence is being carried out;
(vi) the third respondent has to nominate a judge of the District Court to receive such evidence;
(vii) the said nominated person receives such of the relevant evidence to which the request relates as may appear to the nominated person to be appropriate for the purpose of giving effect to the request;
(viii) the procedure is subject to judicial review by the High Court, and, as here, an appeal to the Supreme Court.”
20 For the purposes of this case, it is I think important to appreciate the limited function performed by the District judge under the Act. It is merely the gathering and transmission of evidence, in this case in aid of an investigation. While it makes sense that such a process should be carried out in a court setting, both from the point of view of formality, and for ease of cooperation since in many civil law countries, investigations are carried out under court supervision, court proceedings were not required either as a matter of Irish constitutional law or for compliance with the Convention. The role of the District Court was limited to the issuance of summonses if requested, and engaging, in the words of Murray C.J. at p.23 (para. 61) of the judgment, in the “process of identifying what evidence before him [or her] has been sought in the request and furnishing it to [the Minister]”.
The proceedings in the High Court
21 The proceedings in the High Court did not run smoothly. Motions were brought by the applicant seeking discovery of documents in the possession of the Minister, for inspection of those documents and for consequential amendment of the statement of grounds to include additional contentions including one that the request was invalid because it had emanated from the prosecutor rather than (as was alleged) the Italian authorities. Ultimately, there was a hearing in the High Court on the substantive matter. In the light of developments in the Italian proceedings, Peart J. firstly delivered an interim ruling that since he considered there was no invalidity in the original appointment of the District justice, there was no question of seeking an order recovering any evidence transmitted to the Italian authorities (or preventing its use) even if the Court had power to do so, upon which latter question he expressed no view.
22 The High Court delivered its substantive judgment in this matter on the 25th of January, 2013, and dismissed the appellant’s claim. On this appeal, the appellant has confined the argument to a single point identified in the written submissions as follows:
“The Applicant contends that the Minister acted ultra vires in adopting a fixed policy in connection in the exercise of the powers given him by section 51 and that the learned High Court judge should have held that he acted ultra vires in not considering representations made to him by the Applicant.”
This point can be reduced to a contention that the Minister acted ultra vires in not considering the representations made to him by the applicant in the Arthur Cox letter of the 29th of May, 2007. It should, however, be noted that this formulation runs together two points and is based upon an assumption as to fact, that is, that the Minister had adopted a fixed policy of not considering representations made to him, which was, in fact, the subject of considerable dispute.
Proceedings in this Court
23 Given the fact that events were underway in Italy, and the existence of a rolling statute of limitations, it was perhaps inevitable that matters would develop in Italy while this application was pending in the Irish courts. It is not entirely surprising, therefore, that an application was made to this Court in respect of matters which had occurred since the High Court decision. The nature of that application was, however, somewhat unusual.
24 Notice of appeal to this Court was filed on the 20th of December, 2013. A priority date was allocated for the 24th of July, 2014. On the 8th of June, 2014, however, matters had proceeded in Italy to the point where Mr. Agrama had been acquitted. The appeal was being managed in the Chief Justice’s list, and since it appeared that it might be contended that the appeal was moot, the hearing date was vacated to allow the parties to consider how, or indeed whether the matter might proceed in the light of these events. The acquittal in Italy was appealed, and the Minister indicated that she wished the appeal to proceed in this Court because the Italian authorities still desired to obtain the information. Accordingly, on the 23rd of June, 2015, a date was fixed for hearing of this appeal on the 5th of November, 2015.
25 On the 16th of October, and thus shortly before the hearing, the applicant brought a motion before this Court grounded on a lengthy affidavit setting out the procedural background and adverting to the fact that the appeal hearing in Italy was due to open on the 20th of January, 2016. However the application was not, as might have been thought, to have the appeal declared moot, but rather to argue additional grounds, namely, that the second request for assistance was now spent and could not be operated. It was contended that the requesting party, Mr. De Pasquale, was now functus officio, and would play no part in the appeal, and in any event the request was no longer to assist in an investigation, but rather for the purposes of proceedings, which was a purpose not contemplated by the second letter of request. A comprehensive affidavit was sworn on behalf of the Minister exhibiting, among other things, a witness statement from the chief lawyer for the Italian government in the district of Milan addressing the question of the status of the appeal, and the part that might be played by the prosecutor in it. The request was maintained.
26 The motion was adjourned to the hearing of the appeal on the 5th of November, 2015. The Court, having heard the application, refused the application to argue fresh grounds. There is a number of interlocking reasons for the Court’s decision in this regard. First, the facts and matters alleged by the appellant, if relevant to the appeal, would seem to be only relevant to an application to have the appeal declared moot. However, the applicant did not seek such a determination. There were however significant difficulties with any application to argue these matters a fresh ground of appeal. This ground had not been argued in the High Court and there was, accordingly, no High Court determination on it. The issue before the High Court was the validity of the decision made by the Minister to nominate the third named respondent to receive the evidence. That decision was made in 2008. The determination of the High Court was that that decision was valid. The issue in this appeal is whether the High Court was right to conclude that the Minister’s decision was correct. It is difficult, if not impossible, to see how either of those issues can be affected by matters which did not occur until 2015. It might of course be otherwise if the new evidence related to matters which existed in 2008.
27 Furthermore, the evidential situation both as to Italian law and procedure was disputed. Accordingly, if permission was granted to argue the fresh ground, that would have involved a hearing by this Court of contested evidence which would not and could not have been heard by the High Court. Furthermore, any such course would lead to further delay which, in the context of this case, was wholly undesirable. At times, it appeared that the application was intended for future defensive purposes rather than directly related to the appeal. If the appeal failed, then the applicant considered it likely that he would bring a further judicial review in relation to these matters, and wished to anticipate and neutralise any argument that any such point should have been made in these proceedings. This convoluted reasoning is only a further unhappy consequence of the length of time the proceedings have taken, and the over elaboration of material and issues that have been involved.
28 In this Court, the argument on the appeal, while both succinct and vigorous, operated at a level of some abstraction, and although the point was ultimately fact dependent, the argument was maintained at some remove from the detail of the voluminous material that had been accumulated in these proceedings.
29 The applicant’s argument was that the Minister, in 2008, had made a decision that he should not, or indeed could not investigate the allegations made by or on behalf of Mr. Agrama. Counsel pointed out that the Minister had to satisfy himself that the statutory conditions had been established to operate the mechanism under s.51, but that the statute also contemplated that the Minister had a residual discretion and could refuse to nominate a district justice to receive evidence, even if those statutory conditions were complied with. While it was acknowledged that the circumstances in which such a discretion would be exercised were rare, one such instance was if it was established that the application by the foreign state or prosecutor amounted to an abuse of process. Counsel pointed out that that was the allegation made in explicit terms in this case in Cox’s letter of the 29th of May 2007, which stated at p. 2:
“We believe that in the circumstances the issue of the Summons to Mr Kenny was procured by an abuse of the process envisaged by the European Convention on Mutual Assistance in Criminal Matters.”
30 The argument proceeded that if the Minister had considered he could not investigate the allegations contained in the letter of the 29th of May, 2007, then he had misconceived the legal position and unlawfully fettered his discretion under the Act. Counsel argued that the High Court judge had, in effect, speculated that the Minister would have been entitled to conclude that an investigation of the disputes as to the proceedings in Italy was a hopeless exercise and not warranted in the light of the limited function under the Act, the fact that there was no requirement to put any party on notice of the applications, and indeed, the need for expedition. Counsel argued, however, that if the Minister had come to this conclusion, the applicant would seek to challenge it on reasonableness grounds (acknowledging, however, that this might be a difficult task) but there was no evidence that he had done so or had even got to the point of considering the detail of the submission or taking a view on what might be involved in establishing the factual or legal position.
31 In this regard, counsel made what, in my view, were justified criticisms of the manner in which the Minister and his representatives had dealt with the correspondence and the pleadings in this case. In the first place, the CSSO in the letter of the 7th of June, 2007, may have, in an unguarded, way simply passed on the Cox submissions to Mr. De Pasquale for “instructions”. I would not be inclined to read much of anything into that language or conduct. It is standard to pass on correspondence and this does not imply any view on the part of the CSSO, still less the Minister, as to the necessity to address all such complaints. However, counsel also pointed out that discovery showed that there had been some communication with the prosecutor, but that that had not produced any substantive reply on his part to the matters set out in the Cox letter. Instead, the second request had been issued and the procedure invoked. There are circumstances when a court might properly be critical and suspicious of such a course. The inference Counsel wished us to draw, I think, from this sequence is that the silence of the CSSO and the Minister amounted to some tacit acceptance that the allegations made were correct in every material respect. Here, it would certainly have been more courteous to have explained that the Minister did not consider it necessarily desirable to engage in investigation of all the matters alleged (if that indeed was what he had decided). Indeed, that course might have also been wiser and might have avoided some unnecessary wrangling. However, I would not consider this, in itself, to be critical in the resolution of this case. Since the essence of Mr. Agrama’s complaint is that the misstatements he alleged were to be found in the first letter of request were repeated in the second letter of request, there could be no question of the prosecutor seeking to use the device of issuing a second letter of request to avoid the complaints raised by Arthur Cox. It also seems quite clear why the second letter of request was necessary. Time, in the shape of the Italian statute of limitations, was running against the original request and the investigation referred to therein. The investigation and proceedings had accordingly been expanded, and it was necessary, in the light of the time elapsed, that a fresh request be issued reflecting this development.
32 There is, in my view, more substance to the complaint that neither the correspondence nor the reasoning of the Minister in proceeding with the request were addressed explicitly in the affidavit sworn on behalf of the Minister in these proceedings. Moreover, it is said that there is no statement in the affidavit as to what precisely the Minister did in relation to the Cox letter. Did the Minister actually consider the complaint made on behalf of Mr. Agrama at all? If he did do so, did he consider that he was precluded, as a matter of law, from investigating any complaint? If so, it was argued that he was wrong in law. Alternatively, did he consider that he could investigate a complaint, but would not do so because he considered it was ultimately likely to be a fruitless exercise? If so, counsel argued, he was adopting a fixed policy and, therefore, wrongly fettering the discretion conferred on him by statute. In this case, for example, a simple inquiry from the prosecutor might have elicited an acknowledgement of error, and there would be no question then of a fruitless and time consuming factual inquiry. Or did the Minister consider that the complaints here were of such a nature that they did not raise an issue which, even if established, would justify him in refusing to operate the mechanism under s.51? In this regard, counsel pointed to some ambiguous phrases at paras. 6 and 8 of the Statement of Opposition:
“6 The first named respondent denies that he is obliged to or may pursuant to statute or otherwise undertake an inquiry in to asserted irregularities in the foreign criminal investigation in the manner, at the time, or for the reasons asserted by the applicant. The complaints made by the applicant as regards the contents of the letter of request are properly a matter for the courts of the requesting state which will have power to determine, in accordance with the law of that state, the admissibility of any evidence pursuant to such request ….
8 In respect of the letter of request of the 11th of January 2008, the first named respondent repeats the assertion that it is not obliged to engage in the investigation or consideration of alleged misstatements and misrepresentations as asserted to be contained in the said letter of request and as asserted by the applicant.” (applicant’s emphasis).
A Statement of Opposition is a pleading, and may, therefore, contain alternative and inconsistent pleas. It is, however, difficult to know precisely what case is being made here. In any event, I agree that the affidavit evidence was less than forthcoming and, at best, uninformative. Affidavits are not pleadings. They should be clearly expressed and address the material issues of fact in an unambiguous way. Indeed, it can be said that an affidavit which is not comprehensive may give rise to applications for discovery, inspection and cross examination, all of which add to the length, complexity and cost of proceedings, and are in principle undesirable in judicial review, which, at its core, is meant to provide a speedy determination of legal issues as to validity.
33 Whatever criticisms might be made of the written pleadings, Counsel for the Minister’s argument in this Court was admirably clear and robust. The matters raised in the Cox letter, while extensive, were, on any examination, merely argumentative, and even if correct could not amount to a proper ground for refusing to operate the machinery under section 51. This was what the Minister had decided and it was entirely lawful. When pressed as to where it was said explicitly in correspondence, direct evidence or formal pleading that the Minister had come to this conclusion, counsel did not budge from the proposition that while it would have been more desirable that the matter should be set out explicitly, it was reasonably clear that the Minister had considered the Cox objections sufficiently to conclude, correctly, that no purpose would be served by investigating the detail of what is alleged since the letter did not, in fact, amount to a contention that the statutory preconditions had not been met, or assert one of those rare situations in which the Minister would be justified in exercising his residual discretion not to operate the procedure.
34 In order to resolve this relatively narrow conflict, it is necessary first to put it in its legal context. It is necessary to know what the Minister must do, and may do, under s.51 in order to understand what valid objections may be raised and what range of actions may then be open to the Minister on such objections. There was little contest about the relevant law. In order to operate s.51, the Minister had to receive a request for assistance from, in this case, a prosecuting authority in a country or territory outside the State. The request had to be in connection with criminal proceedings that had been instituted or, as in this case, a criminal investigation being carried on. The Minister had to be satisfied in this case that there were reasonable grounds for suspecting that an offence had been committed under the law of the country or territory, and that an investigation into that offence was being carried on there. If, having received a valid request, the Minister was so satisfied, he might, if he thought fit, nominate a district justice. This latter provision undoubtedly conferred a discretion upon the Minister. The appellant cited a U.K. text book, Nicholls, Montgomery and Knowles on The Law of Extradition of Mutual Assistance 3rd Ed., (Oxford, 2013) as establishing the grounds upon which the discretion might be exercised not to appoint a judge to receive evidence. I did not understand this to be seriously contested by counsel on behalf of the Minister, and for present purposes I am prepared to accept this statement as also representing Irish law. The portion quoted by the appellant from para. 19.10 of the work is as follows:
“Once a request has been received, the territorial authority has discretion whether to grant assistance. There is a presumption that the UK will provide assistance, especially where there is a treaty relationship with the requesting state. CICA 2003 does not circumscribe the limits of this discretion, and the courts have been reluctant to do so. The expectation is that requests for assistance will be acted upon, unless there are compelling reasons for not doing so. In R (JP Morgan Chase National Association) v Director of the Serious Fraud Office [2012] EWHC 1674 (Admin), para. 53, Gross LJ said:
‘What then might those “compelling reasons” encompass? Here, as elsewhere, discretionary powers are to be exercised having regard to the facts of the individual case. For this reason and, more generally, because it would be unwise and inappropriate to do so, I do not think that there can be any exhaustive categories or list of cases where the SSHT [Secretary of State for the Home Department] would be entitled or obliged to exercise her discretion against acting on a request for assistance. As already observed, statutory discretion should not readily be fettered. That said, first, the existence of cases where the SSHD may or should exercise her discretion to refuse or accede to a request underlines that her role is not that of a “rubber stamp”. Mutual assistance should not be equated to a blank cheque. Secondly, cases of refusal to accede to a request must be rare or exceptional, for reasons already canvassed and if international mutual assistance is to function. Thirdly I do not think that the SSHD’s discretion to refuse to act on a request is confined to those instances enumerated in the Convention’”
The authors went on to state, at para. 19.11:
“In R v Central Criminal Court ex p Propend Finance Property Limited [1996] 2 Cr App R 26, 33 Laws LJ said that national security considerations could justify a refusal of assistance. Violation of the principle of ne bis in idem might also provide a basis for refusing assistance, as might a request which his an abuse of process.”
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. It is not possible or desirable to provide an exhaustive list of the circumstances which would justify refusal. Such circumstances must be considered by reference to the facts of the individual case, but grounds which might amount to compelling reasons justifying refusal may be considerations such as national security, breach of a fundamental principle of justice, or abuse of the process. Any representations must be considered within the requirement for urgency in any such request, the limitations of any possible inquiry available to the Minister, and the limited matters to be considered
36 Counsel for the appellant argued that since the allegation here was one of abuse of process, the Minister was duty bound to consider it and to investigate it. However, I do not think it is sufficient to approach the case at that generalised level. I agree with counsel for the respondent that the case has to be looked at in the light of the specific objections made. When the letter of the 29th of May is analysed, I think it is apparent that the objections were not directed to an assertion that the s.51 criteria had not been met, nor did it seek to establish one of the established grounds for the exercise of discretion such as national security or breach of a fundamental principle of justice. It did raise a contention of abuse of process, but not in the sense which had been advanced or approved in any decided authority, or indeed as generally understood. The traditional concept of abuse of process carries an underlying contention that a legal process is being used for an improper purpose, for example if it was said that the request, while valid on its face, was being used for an ulterior purpose such as to get access to information for political purposes. Instead, the allegation made here was one which blurred the grounds for objection. It was contended, it appears, that inaccuracy and misstatement in the letter of request was, of itself, an abuse of the process.
37 The substance of the complaint was to be gleaned from the following passage at the outset of the letter. At p. 2 of the letter, it is stated firmly that the complaint is one of abuse of process. The immediately subsequent passage states:
“We are instructed that there are two current criminal proceedings in Italy involving Mr. Agrama, both led by Mr. Fabio De Pasquale, the prosecutor … The first proceeding concerns the current trial which started November 21 2006 before the Milan court against Mr. Agrama and eleven other co-defendants, including Silvio Berlusconi the former Italian prime minister. In these proceedings Mr. Agrama is charged with having participated in three crimes allegedly committed in the year 1999: (i) misappropriation of (Mediaset spa’s funds …) (ii) false accounting for the year 1999 … and (iii) fraudulent tax return for the year 1999 … This proceeding (the so called Mediaset proceedings) started with investigation numbered 22694/01 RGNR … The second proceeding is currently only at the stage of a preliminary investigation before the prosecutor’s office in Milan against Mr. Agrama and two other suspects (where Mr. Agrama is just a ‘person under investigation’ not a defendant since there is no indictment).”
38 Pausing there, and looked at broadly, as I think the Minister is entitled to, these introductory matters not only do not amount to a challenge of any of the matters on which the Minister must be satisfied before exercising his discretion under s.51, but rather, they constitute confirmation of them. Not just one but two investigations are underway in Italy, they are being conducted by Mr. De Pasquale, and one of them has reached the point in which proceedings have been commenced.
39 Having identified the fact that the misappropriation charges in the Mediaset proceedings had been dismissed, the letter of the 29th of May then purports to set out the following “misrepresentations, inconsistencies and omissions contained in the Request.” The first objection is taken to the statement that the request is “aimed at investigation a serious and complex fraud which includes offences of money laundering carried out in the period 1999 - 2000”. The letter objects that the potential charge being investigated is one specifically of misappropriation. But the second letter of request recorded that Mr. Agrama and others having been indicted, and referred to episodes of money laundering committed during the period 1994 to 1997, which is not specifically challenged or contradicted. It is not, on its face, wrong to say that there is an investigation into matters including money laundering even if the only live charge as of May 2007 was misappropriation. Even assuming that it can be described as an inaccuracy, it could not conceivably affect the Minister’s decision. This objection must be viewed in the light of the matters of which the Minister is required to be satisfied. The Cox letter acknowledges that there is an offence under investigation. Furthermore, the manner in which the facts are set out in some detail of both letters of request makes it clear that certain transactions are being investigated which, it is alleged, may give rise to a number of different criminal offences.
40 The second objection was to the third paragraph of the letter of request which states:
“The broadcasting rights in question were supplied to the companies Mediatrade spa and RTI spa by Olympus Trading Ltd, a dummy company based in Dublin which can be traced back to Frank Agrama. The latter is an Egyptian individual who operates in Los Angeles.”
The complaint made in relation to this is as follows:
“As can be seen from the Companies office records, Frank Agrama is neither a shareholder of nor a director of Olympus Trading Ltd. The prosecutor offers no evidence to substantiate the allegation that the company (dummy or otherwise) can be traced back to Mr Agrama.
Furthermore, the Prosecutor insists on referring to Mr. Agrama as ‘an Egyptian individual’ despite the fact that Mr. Agrama, who was born in Egypt, has been a United States citizen for almost 22 years (since July 31st, 1985). (Attachment 6, a copy of Mr Agrama’s naturalisation papers).”
41 It is surprising indeed that these matters are presented as misstatements and inaccuracies, and startling that it could be suggested that they are an abuse of the process justifying the Minister in refusing to exercise his powers. The fact that Mr. Agrama is neither a shareholder nor director of Olympus Trading Limited does not mean that it is a misstatement to say that the company can be traced back to him. Furthermore, this may be an issue in the Italian proceedings, if matters ever reach that point, and the Minister would be fully justified both in considering that this is something he could not possibly resolve, in the context of the request, and that if relevant, it would be for determination in Italy. Furthermore, while it is true that the paragraph in question referred to Mr. Agrama as an “Egyptian individual”, the letter of request states on p. 2:
“Farouk Agrama, known as Frank, was born in Arish (Egypt) on 1.1.1930. He lived in Italy for some years. He has lived in the United States since the eighties and is an American citizen.”
It is surprising that one of the earliest grounds upon which it is alleged that the request for assistance is misleading and contains misstatements amounting to an abuse of the process is the reference on page 1 of that requesting letter to Mr. Agrama as “an Egyptian individual” when all the information alleged to have been omitted or misstated is on page 2. However, and taking it at its height, even if the letter of request had persistently referred to Mr. Agrama as an Egyptian individual, it is impossible to see how that could constitute an abuse of process justifying the Minster in refusing to exercise his powers in aid of a friendly country in circumstances where Mr. Agrama’s place of birth or appropriate national description is not relevant to any of the matters on which the Minister has to be satisfied, and could not give rise to any questions of national security or fundamental breaches of justice, or cognate matters which would amount to compelling reasons not to exercise the power to appoint a district justice to receive evidence to be transmitted to Italian authorities.
42 Much of the rest of the letter of complaint amounts to matters quarrelling with detail and a description of the underlying facts of the Italian procedures. Some of these, if at all relevant, could only be resolved in the Italian proceedings, but could not amount to the type of conduct which could be described as justifying the exercise of ministerial discretion against complying with the request. This illustrates what has been done in this case: since abuse of process might be a ground for refusing to execute a request, all the complaints of error whether of fact, nuance or description have been gathered and simply labelled abuse of the process. But they are at best allegations of error and the mere description of them as abuse of the process cannot, without more, impose an obligation to investigate them .
43 The most serious matter raised by the letter, Mr. Agrama’s affidavit and the Cox letter of the 29th of May, 2007, is touched on in passing in the letter as follows:
“We wish to draw to your attention that on January 26, 2007 the United States District Court, in the Central District of California issued a court order wherein it states that it was the Prosecutor, Mr. De Pasquale (and not Mr Agrama) who acted with ‘unlawful and reprehensible conduct’ in the United States and that the United States ‘government would not longer rely on the assertions of Fabio De Pasquale’ the prosecutor.”
This was amplified in the affidavit which asserted that there had been “similar abuse of process by Mr. De Pasquale in the United States and Hong Kong”. The affidavit referred to the grant of leave to seek judicial review in Hong Kong in respect of assistance obtained in that jurisdiction in which Mr. De Pasquale had participated in a search and seizure operation. Nothing further has been drawn to the Court’s attention in relation to this matter, and I infer, therefore, that the judicial review was unsuccessful. However, in the United States, search and seizure warrants were obtained in respect of Mr. Agrama’s residence and the office of a company associated with him, Harmony Gold USA Inc. That was challenged in the courts, and the United States District Court in the Central District of California issued a court order that the warrant be withdrawn and the seized property be returned. The order stated that the US government would no longer rely on the assertions of Mr. De Pasquale. A declaration from Mr. Agrama’s lawyer was exhibited which states that the reason why the search warrants were set aside was related to the fact that the Italian prosecution team obtained access to privileged attorney client communications. The result was that the United States government consented to an order setting aside the search warrants, returning the property, and making the stipulation referred to above that it would no longer rely on the assertions of the Mr. De Pasquale. It was recorded in the court order that “the government learnt facts about the conduct of Fabio De Pasquale, Stefano Martinazzo and Gabriela Chersicla before, during and after November 15th 2006 searches and seizures” and accordingly was not resisting the motion.
44 This is undoubtedly a serious matter. However, it has not resulted in any other official body stopping the investigation or proceedings. Furthermore, it is itself inaccurate to refer to this incident as a “similar” abuse of the process to what is alleged here. If indeed Mr. De Pasquale was seeking search powers and to participate in a search, that statement might be more accurate, and the issue more relevant. There is no question of any search or seizure being carried out here, still less of Mr. De Pasquale or any other official being involved in such a search. No privileged information is being sought in the letter of request. Indeed, under the second schedule to the Act, the fact is that a witness is entitled to the same privileges in the proceedings as would be available both in criminal proceedings in this State and in the proceedings of the territory if the requesting state. These matters cannot, therefore, amount in themselves to an abuse of process such as to entitle the Minister not to exercise his discretion not to invoke the s.51 machinery or to lead the Minister to consider that the asserted inaccuracies are such abuse of the process. There is no suggestion that the evidence is not sought for a proper purpose, or indeed for the purpose contemplated by the Act. It is not suggested that it is sought for some ulterior motive, or for some purpose other than the investigation of offences which was then underway in Italy.
45 When viewed in the context of the specific complaints raised by and on behalf of Mr. Agrama in the letter of the 29th of May 2007, I would still hesitate to accept counsel’s submission that the somewhat delphic evidence on behalf of the Minster must be understood as stating that where, as here, the objections raised went neither to the statutory matters of which the Minister must be satisfied under s.51, nor to establishing those rare and exceptional matters which would have justified the Minister in exercising his justification to refuse to issue a request, the Minister considered he was not obliged to, and as a matter of practicality could not , investigate or question matters relating to the conduct of the investigation and prosecution in Italy. However, it is not necessary to do so to resolve this case. The applicant’s case was that the minister had adopted a fixed policy of not investigating submissions and thus wrongfully fettered his discretion. The onus was on the applicant to establish this. Although the applicant obtained discovery, no evidence was put before the Court to support this contention. Furthermore, although the applicant had brought a number of interlocutory applications, with some success, no application was made for leave to cross examine the deponent on behalf of the Minister as to the decision making process. Accordingly, I do not consider the evidence goes further than establishing that the Minister considered the objections. Furthermore, if it is the case that the Minister was entitled not to carry out an investigation into the allegations made in this case, it would not avail the applicant to show, if that was the case, that the Minister took an overbroad view that he would not carry out investigations in any case, such as an allegation that the s.51 criteria were not in fact established, or some allegation of true abuse of the process. As I have observed, there is no evidence of such an overbroad approach on the part of the Minister, but if it did exist, it would only avail an applicant in a situation where an investigation was required, and accordingly, on the view I take of the objections raised, could not avail the applicant here in any event. Accordingly, I would dismiss the appeal.
