The Court of Appeal has refused Frank Agrama leave to seek judicial review of the Minister for Justice’s decision to nominate a District Court judge to receive evidence requested by Italian authorities. It upheld the High Court’s refusal of leave, so the challenge will not proceed as a judicial review on this application.
The Minister’s decision, made on 18 January 2016, nominated Judge John O’Neill to receive evidence under a letter of request issued by the Milan public prosecutor in January 2008. The request concerned an investigation into alleged fraud and money laundering connected with the purchase of broadcasting rights. The Court of Appeal judgment was delivered by Mr Justice Birmingham on 22 February 2016, with Justices Sheehan and Mahon also sitting.
Agrama argued that the evidence was being sought to use in an Italian appeal against his acquittal on tax fraud charges, rather than for an ongoing investigation. He contended that this made the Minister’s decision unlawful under section 51 of the Criminal Justice Act 1994, which provides for assistance in obtaining evidence in connection with criminal proceedings or an investigation.
The court rejected the basis for the proposed challenge. It said an investigation can continue after criminal proceedings begin and that evidence gathered during an investigation may later be presented in those proceedings. The court accepted there was an expectation, and perhaps an intention, that evidence received in Ireland would be presented to the Italian appeal court. But it found no evidence that the investigation had ended or that receiving the evidence fell outside its scope.
The judgment noted that Agrama and the other defendants had been acquitted at trial in July 2014, and that Italian authorities had appealed. The appeal was due to resume in March 2016. The court said the timing mattered because, in practice, granting leave would prevent the evidence being available when it could be useful to the Italian proceedings. In those circumstances, it required more than the usual arguability threshold and found Agrama had not met even that lower threshold.
The High Court had also raised delay, abuse of process and non-disclosure. The Court of Appeal said it was unnecessary to address those issues in detail. It added that the omission of the date Agrama was charged from his affidavit was not material and would not, by itself, have justified refusing leave. The court dismissed the appeal and upheld the High Court decision. It did not determine the outcome of any later request to use the evidence for another purpose.