The High Court refused Frank Agrama leave to bring a second judicial review challenging steps to gather evidence for Italian criminal proceedings. Mr Justice Richard Humphreys ruled on 8 February 2016 that the application was not arguable, was out of time and should also be refused on separate grounds of abuse of process and non-disclosure.
Italian prosecution authorities had requested evidence in 2008 for an investigation into alleged offences. The Minister for Justice appointed a District Court judge to take evidence. After an earlier judicial review and an appeal to the Supreme Court failed, the Minister nominated Judge John O’Neill in January 2016. He issued summonses to two witnesses. Agrama began the present proceedings on 1 February, and the respondents undertook not to process the request further until the leave application was decided.
Agrama argued that the evidence was being sought for a prosecution rather than an investigation, because he had already been prosecuted, acquitted and was facing a prosecution appeal. The judge rejected the premise that an investigation could not continue alongside criminal proceedings. He said evidence gathered under the request could be used only for investigation unless the Minister later consented to its use for another purpose. No such consent had been given. Humphreys J therefore found the proposed ground was not arguable. He noted that the Supreme Court had left open questions about fair procedures if evidence were later proposed for use in a prosecution.
The date Agrama was charged was disputed. The respondents said March 2010; Agrama argued October 2011. To avoid further delay, the judge assumed in Agrama’s favour that the relevant date could be October 2011. He held that the challenge had to be raised in the earlier proceedings or brought separately within the applicable time limit. Even on that assumption, the six-month limit expired no later than April 2012, and the present application was out of time. He found no adequate grounds for extending the limit.
The judge also accepted the respondents’ submission that repeated proceedings had delayed the taking of evidence, and said the application would be refused as an abuse of process even if it otherwise qualified for leave. He further ruled that the omission of the charging date from Agrama’s affidavit was a sufficient reason to refuse the application. He said this was an objective finding about non-disclosure, not a finding that Agrama intentionally withheld information.
The court released the respondents from their undertaking to pause the evidence process. It directed that any related future judicial review applications be made on notice to the respondents before the judge assigned to judicial review applications that court term, unless the High Court President directs otherwise. The respondents were awarded the costs of the 2 February hearing, to be assessed if not agreed.