Supreme Court allows appeal against District Judge's refusal to transfer evidence under international mutual assistance treaty.

THE SUPREME COURT

No 282/03

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

BETWEEN

JASON BRADY

Applicant/Appellant

and

DISTRICT JUDGE GERARD HAUGHTON and THE COMMISSIONER OF AN GARDA SIOCHANA and THE MINISTER FOR JUSTICE

EQUALITY & LAW REFORM

Respondents

and

THE ATTORNEY GENERAL

Notice Party

JUDGMENT of Mrs Justice McGuinness delivered the 29th day of July, 2005

1. I have had the advantage of reading the judgments both of the Chief Justice and of Mr Justice Hardiman in draft. I am in

agreement with the order proposed by the Chief Justice and I am also in agreement with him that the issue concerning the applicant's

medical records does not require the making of any order in the light of the undertakings given by counsel on behalf of the third

named respondent. I am, however, also in agreement with the analysis by Mr Justice Hardiman of the factual and procedural issues

which arose in this case and in agreement with him in believing that in the particular circumstances of this case it is not entirely clear

that the evidence sought was for purely investigative purposes. I propose here to add a few very brief remarks.

2. I have no doubt of the value and importance of the system of international mutual assistance in criminal matters established under

the European Convention ratified by this country in 1996 and brought into effect through sections 51 to 55 of the Criminal Justice

Act, 1994. This scheme of mutual assistance is set out through detailed provisions, and with careful limitations, both in the

Convention and in the relevant sections of the 1994 Act.

3. The procedure is a somewhat unfamiliar one, involving as it does the role of a Judge of the District Court not as a judge, but as

"persona designata". It involves, as agreed by my learned colleagues, the obtaining and transferring of precisely the items of evidence

included in the request. It is accepted by all parties that the procedure is not the administration of justice and the persona designata

does not possess inherent powers or discretion to enlarge or extend the items of evidence transferred. It would therefore be

anticipated that the authorities charged with bringing this somewhat unfamiliar procedure into effect would have taken particular care

to adhere closely to the terms both of the Convention and of the Act. This does not appear to have been the case.

4. In his judgment the learned Chief Justice remarks that it would seem that the Department responsible for the operation of the

section did not give any prior consideration as to how it might be operated in practice and that the indications were that the section

had been implied without prior reflection as to precisely what was entailed, how the persons called upon to act should carry out their

functions and the precise parameters of the procedures to be followed. I am in entire agreement with these remarks as, indeed, I am

with the particular criticisms of the procedure employed in this case set out by Mr Justice Hardiman in his judgment. At an earlier

point in his judgment the Chief Justice emphasised the need to approach the interpretation of the relevant sections from a

perspective broader than the circumstances of an individual case. It is precisely because this is so that I am here laying stress on the

fact that many of the difficulties in the present case arose from the failure to apply correctly the procedures laid down in the statute

and in the Convention. It is greatly to be hoped that these difficulties will not recur in future cases.

5. In this context, it is also difficult to understand why the authorities in this jurisdiction failed to take notice of the expressed wish of

the United Kingdom authorities as set out in their letter of request that the applicant "should be given the opportunity of seeking legal

advice from a lawyer of his choice who can advise on the position in both English and Irish criminal jurisdictions insofar as they are

applicable". This expressed wish cannot, of course, be binding on any or all of the respondents. It is, however, carefully worded and it

seems likely to be of significance. It appears that for some unexplained reason this request was never even considered by the Irish

authorities from beginning to end of the procedure. This too greatly contributed to the difficulties which arose in the case.

6. I share the view of Mr Justice Hardiman in doubting that the evidence to be collected and transferred in this particular case was

necessarily only for the purposes of an investigation and in this aspect of the case I respectfully disagree with the Chief Justice. I do

so for two main reasons. In the first place, in common with both my learned colleagues I do not find it credible that the statement

concerning the necessity for a proper chain of evidence made by counsel for the third named respondent at the hearing before the

first named respondent was, as this court was informed, a "mistake".

7. Counsel at the hearing stated that his concern was "to ensure the chain of evidence" and specifically stated that "some of this

evidence may form part of the prosecution evidence in the United Kingdom - in order to ensure the integrity of the chain - that the

documentation on the items transferred are given in some sense directly to the English authorities". This court was given no

explanation of the nature of this alleged mistake or how it arose. At the hearing before the first named respondent it was made clear

that the counsel concerned was acting on the direct instructions of his solicitor and so presumably of his client. It appears to me that

at that stage both counsel and solicitor were acting in good faith on their instructions. The most likely conclusion from this is that the

required evidence was not sought solely for investigative purposes. This conclusion becomes clearer, it seems to me, if one

remembers that at that stage of the proceedings there was still the possibility that oral evidence from the applicant's relatives might

be obtained and transmitted.

8. In the second place it seems to me that the most likely explanation of the request made by the United Kingdom authorities that the

applicant should be given the opportunity of seeking legal advice is that those authorities had in mind the provisions of section 3(8) of

the Criminal Justice (International Cooperation) Act, 1990, the United Kingdom legislation in force at the time of the requests, which,

as pointed out by Mr Justice Hardiman, is virtually exactly similar to the wording of section 52(10) of the Criminal Justice Act, 1994.

9. Section 52(10) provides:

"In considering whether a statement contained in evidence taken pursuant to a letter of request should be excluded in the

exercise of the court's discretion to exclude evidence otherwise admissible the court shall have regard—

(a) to whether it was possible to challenge the statement by questioning the person who made it, and

(b) if the statement was taken in proceedings in the country or territory in question, to whether the law of that country

or territory allowed the parties to the proceedings to be legally represented when the evidence was being taken".

10. It is, I consider, at least a reasonable possibility that in making the request referred to above concerning the applicant, the United

Kingdom authorities had in mind using the transmitted material as evidence in a future trial of the applicant. It is in this context that I

consider that the applicant should have been put on notice of the hearing before the first named respondent and, indeed, to have

been offered the opportunity of legal advice as suggested.

11. This is not to say that I consider that notice of this kind needs to be given in all or even the majority of cases where the

collection and transmission of evidence is requested by the prosecution authorities of another country. In very many cases it will be

clear that the evidence sought is for investigative purposes only; in other cases matters such as urgency or the fear of flight may

arise. It is in the particular circumstances of this case, and in addition in a situation where it seems clear that the applicant is a

definite suspect, that it seems to me that notice was required. This was especially so in regard to the proposed transfer of medical

evidence or records and the proposed evidence of the applicant's relatives.

12. As matters transpired the present situation is that neither the medical records nor any statement of evidence by the applicant's

relatives are to be transmitted to the United Kingdom authorities. As far as the remaining items are concerned I am, therefore, happy

to concur with the order proposed by the Chief Justice.