The High Court ordered discovery of three categories of documents in Frank Agrama’s judicial review proceedings over requests from Italian authorities for mutual legal assistance. The decision concerned discovery only; it did not determine whether the Minister acted lawfully in accepting the requests or nominating District Court judges to receive evidence.
The requests, dated 17 July 2006 and 11 January 2008, related to criminal proceedings against Agrama in Italy. The second request was described in its covering letter as substituting for the first. A later letter from the Chief State Solicitor’s Office said it substituted only the unexecuted part of the first request, leaving the extent to which the first remained operative in dispute between the parties.
Agrama’s solicitors had raised what they described as misrepresentations, inconsistencies and omissions in the first request, and later made complaints about the second request and the nomination of a District Court judge. The Minister denied having a duty to investigate whether a request’s account of the facts was fair, accurate and true before making a nomination. The Minister’s evidence was that he was satisfied there were reasonable grounds to suspect offences and an investigation in Italy, and that assessing the underlying facts was outside his role.
The court said the substantive judicial review would have to determine whether the Minister was required to satisfy himself that a request fairly and accurately stated the facts, particularly after receiving representations from the person concerned. It stressed that it was not deciding that issue on the discovery application, or expressing a view on the broader allegations.
The applicant sought four categories of documents. The judge found the fourth category, concerning contact about whether the Italian prosecutor would become a notice party, was no longer relevant because the prosecutor had not sought to join the proceedings. The other three categories concerned communications with the Italian prosecutor about the requests, communications about Agrama’s complaints, and the Minister’s and Chief State Solicitor’s consideration of those complaints and the judicial nominations.
The judge held those three categories relevant and necessary to pursue the remaining judicial review grounds, including abuse of process, irrationality and unlawfulness. The court ordered discovery of those categories. It did not decide whether any documents were privileged; the judgment said that question did not arise at that stage.