The Court of Appeal has dismissed Michael Lynn’s appeal against the High Court’s refusal of judicial review over assurances given by Irish authorities during his extradition from Brazil. The court upheld the High Court decision on the merits and did not reach a concluded view on the State respondents’ argument that the appeal was moot.
Lynn, a solicitor, had challenged assurances concerning credit for time spent in Brazilian custody and the maximum time he might spend in custody if convicted. The Court of Appeal judgment, delivered on 31 May 2019, said 33 arrest warrants had been issued by the Dublin District Court in 2012 in relation to allegations of theft and making and using false instruments.
Ireland sought Lynn’s extradition from Brazil in 2013. As there was no extradition treaty or rendition arrangement between the countries, the governments entered into an ad hoc agreement for his case. Brazil’s Supreme Court dismissed his legal challenges in December 2014, clearing the way for a possible extradition on 21 theft charges. Lynn was held in Brazil from 29 August 2013 until his return to Ireland on 1 March 2018.
In January 2018, the Irish Embassy told Brazil that Irish authorities would take into account any period of imprisonment Lynn had served there due to the extradition process. In a February note, the Embassy also said he would not serve more than 30 years in prison, even if convicted of all offences covered by the extradition order. Lynn argued that the executive had no authority to guarantee how a sentencing court would treat time in custody or what sentence it might impose.
The Court of Appeal rejected both arguments. On time spent in custody, it relied on the Director of Public Prosecutions’ repeated position that, if Lynn were convicted and reached sentencing, the prosecution would submit that the sentencing judge was required to take that period into account. The judgment said it was certain that the time would be taken into account if sentencing occurred.
On the 30-year assurance, the court considered Irish sentencing practice, appeal rights, remission and the executive’s power to release a prisoner. It concluded there was no possibility Lynn would be required to spend more than 30 years in custody. The court dismissed the appeal and upheld the High Court decision.
The State respondents had also asked the Court of Appeal to strike out the appeal as moot because Lynn had already been extradited. The court described the arguments for mootness as weighty but, having dismissed the appeal on its merits, said it was unnecessary and inappropriate to reach a concluded view on that issue. The judgment records that Lynn was charged after his return; it does not determine the criminal allegations against him.