Former solicitor Michael Lynn loses challenge against DPP

Fugitive struck-off solicitor Michael Lynn has lost his challenge against assurances given to a Brazilian Court by the Director of Public Prosecutions.

The DPP had assured authorities in Brazil that Mr Lynn's time in a prison there awaiting extradition will be set off against any prison sentence imposed on him here.

Such assurances were required by the Brazilian authorities before they would sanction Mr Lynn’s extradition, which his lawyers previously said is due next week.

Mr Lynn had sought declarations from the High Court such assurances could not be given. Had he secured those declarations, he may have used them in efforts in Brazil to prevent his extradition, his lawyers indicated.

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In his ruling on Friday, Mr Justice Michael McGrath rejected arguments by Mr Lynn that guarantees or assurances provided in letters from the Irish embassy in Brazil to the Brazilian authorities last January and earlier this month amounted to unlawful interference with the judicial function in the context of the separation of powers.

The issue of whether the contents of the letters satisfied the requirements of the Brazilian authorities is a matter for the Brazilian courts and it is not for the Irish courts to interpret them, he also said.

Inappropriate

It would be inappropriate for the Irish court to give declarations to Mr Lynn concerning the guarantees for use by him in the Brazilian courts, he said.

In Mr Lynn’s case, the guarantees had to be given by March 11th, 2018 failing which, as a matter of Brazilian law, he must be released from custody, Mr Justice McGrath noted.

He refused to put a stay on his ruling pending any appeal.

Mr Lynn, who fled from here in 2007, allegedly leaving an estimated €80 million in debts, is being held at Cotel remand prison in Recife in northwest Brazil.

He faces charges here relating to alleged theft and has been imprisoned since 2013 when Brazilian federal police, acting on behalf of Interpol, arrested him.

The Brazilian authorities have indicated their consent to Mr Lynn’s extradition on 21 charges of alleged theft. His extradition had been sought on a total 33 counts, including theft and using a false instrument, based on warrants issued by Dublin District Court in 2012.

In his ruling, Mr Justice McGrath noted a solicitor for the DPP had, in sworn affidavits in 2015, said the time Mr Lynn spent in custody in Brazil awaiting extradition would be set off against any sentence imposed here.

There are two stages of the extradition process in Brazil, a judicial and administrative one, he said.

Guarantees

If, as in this case, objections to extradition are not upheld, the extradition request is granted and it then moves to the administrative or handover stage at which point it is necessary for the requesting State to provide guarantees which, if not provided, could lead to refusal of extradition.

The guarantees require the person will only be prosecuted on the charges for which Brazil has permitted the extradition and will not serve more than 30 years.

He noted the Brazilian court, when authorising the extradition, had referred to the presumption of veracity of the documents provided when rejecting the arguments against extradition.

The central issue was whether the letters and actions of the executive seek to unlawfully interfere with the role of the judiciary in the context of the separation of powers, he said.

The letter of January 2018 outlined means by which sentences may be shortened and also referred to remission, judicial practice and the powers of the executive concerning remission. It did not purport to bind the judiciary or interfere with their powers and discretion in relation to sentencing.

While the court might have “some misgiving” about some of the language used in the February letter, that cannot be seen as more than a statement of the law as the court perceives it to be. The court would not engage in interpreting the letters as to whether they meet the requirements of the Brazilian authorities as that was a matter for the Brazilian authorities, not the Irish courts, he said.