On behalf of the Minister for Justice, Equality and Law Reform, I am pleased to present to the House the Criminal Justice (Illicit Traffic by Sea) Bill 2000. The enactment of this Bill will enable Ireland to accede to the Council of Europe Agreement on Illicit Traffic by Sea implementing Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, done at Strasbourg on 31 January 1995.
The international community has already provided a framework for dealing with certain drug trafficking offences at sea. That framework is contained in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, more commonly known as the Vienna Convention, adopted by the United Nations at Vienna in December 1988. Ireland has already given effect to the provisions of the Vienna Convention by the enactment of Part V of the Criminal Justice Act 1994, which led to the ratification of the convention by Ireland on 3 September 1996.
Arising from Ireland's obligations under the United Nations convention, it is an offence under Irish law for a person on an Irish ship, a ship registered in a convention state or a ship not registered in any state or territory – no matter where the ship may be – to be either in possession of controlled drugs or involved in the carrying of such drugs, knowing or having reasonable grounds to suspect that the drugs are to be imported or exported contrary to Irish law or a corresponding law of any other country. At present, the Irish authorities may stop, board and detain a ship registered in a convention state where such drug trafficking is suspected, provided that convention state agrees. The other convention states have enacted similar laws, so that there is a shared jurisdiction among all convention states.
The United Nations convention is silent on the consequences of shared jurisdiction, in particular on which state ought to prosecute in such circumstances. However, the terms of the convention recognise the need for further improvement of these provisions by providing in Article 17 for regional agreements to enhance effectiveness in this area such as that contained in the Council of Europe agreement.
The purpose of the Council of Europe agreement is to build on the provisions of the United Nations convention and deal with the issue of shared jurisdiction by making provision for the concept of preferential jurisdiction. This, in effect, gives a flag state the right to seek to exercise jurisdiction concerning any drug trafficking offence committed on board its vessel on the high seas in priority to the jurisdiction of another convention state. The agreement makes provision for the procedures to be followed by Council of Europe member states in applying this concept of preferential jurisdiction between them.
As is clear from the explanatory report published with it, the experts involved in drafting the agreement considered that, in practice, the normal case would be that the relevant offence or offences will be prosecuted by the authorities of the intervening state. Situations may arise, however, for reasons of policy or on an ad hoc basis, when the flag state might wish to prosecute the suspect and the agreement sets out in detail the rules to deal with such a situation.
The Bill gives a statutory basis to the concept of "preferential jurisdiction" and makes provision for the legislative mechanisms to give effect to it. For example, if a foreign ship on the high seas off the coast of Ireland was suspected of carrying drugs, the authorities of the flag state – that is, the country where the ship is registered – could, under the convention, request Ireland, or alternatively Ireland could seek permission from the flag state, to stop, board and search the ship. If evidence of drugs was found, the ship could be taken to and detained in an Irish port and the crew arrested. The crew would be guilty of a drug trafficking offence, not only under Irish law but also under the law of the flag state.
The Council of Europe agreement seeks to establish an agreed method of dealing with such a situation by giving the flag state preferential jurisdiction. In the example I have just given, the flag state would have the right to insist on prosecuting the crew and could, therefore, under the agreement, require the crew, the ship and any evidence found on board to be surrendered to it by the Irish authorities.
Alternatively, under an unusual requirement of the agreement to which I will return later, the flag state could simply require the release of the ship and crew. Under the agreement, such a requirement of surrender or release would have to be made within 14 days of the receipt of a summary of evidence from the arresting state, which in this case would be Ireland. The summary would have to be given to the flag state as soon as possible after arrest. If, as is expected to be the norm, flag states do not exercise their right to preferential jurisdiction under the agreement, the arresting state will be free to initiate a prosecution under its domestic law.
In dealing with the Bill, it is fitting that I should again pay tribute to the commitment of the men and women of the Garda Síochána, the customs national drugs team and the Naval Service, which are tasked with the continuing fight against drug trafficking at sea. The bravery and dedication they bring to their work in dealing with drug trafficking by sea, which is often carried on in extreme and hazardous weather conditions, has continued to yield substantial results in terms of seizures of drugs and arrests for smuggling.
Figures available for the past six years show that the Irish Customs Service has examined 2,087 vessels. In the five year period ending December 2000, 970 kg. of cocaine and 3,280 kg. of cannabis resin with a total estimated street value of £202 million, or €256.5 million, has been seized at sea. In 2001, 504 examinations of ships took place and, in 2002, the number of such examinations increased to 587. These examinations typically involve boardings and/or partial or full searches of the cargo. Co-operation between the law enforcement agencies of the member states and beyond is vital in tackling the supply of drugs as drug traffickers recognise no national borders and the drugs trade is truly international.
At national level, initiatives to enhance operational co-operation between law enforcement agencies include a memorandum of understanding and a working protocol between the Garda Síochána and the Customs Service and the establishment of a joint task force – incorporating the Garda Síochána, Customs and the Naval Service – to combat international drug trafficking.
In terms of international co-operation, a number of initiatives have been undertaken including the appointment of drugs liaison officers to Europol and Interpol and in London, Paris, Madrid and the Hague to enable the exchange of information and intelligence between Ireland and its EU partners. The Garda national drugs unit continues to maintain close contact with law enforcement agencies within the EU and in non-EU countries. These contacts have borne fruit and a number of significant internationally driven seizures have been made. The drug barons and traffickers must be made to realise that our law enforcement agencies will continue to work together and enhance their co-operation in order to combat the international trade in drugs.
I will now outline the main provisions of the Bill. The Bill provides for a convention state which is a party to the agreement, provided for in section 3, to make a request in accordance with section 7 to the Minister for Justice, Equality and Law Reform for the surrender to that state, in respect of a drug trafficking offence, of a person who has been arrested, a vessel which has been detained or anything on the vessel which has been seized or detained while on the high seas, under procedures already provided for in section 35 of the Criminal Justice Act 1994.
When a convention state vessel is taken to an Irish port and detained, any person arrested will be brought before the High Court as soon as possible in accordance with section 5. The court will then remand the person pursuant to section 6, pending an order by the Minister for Justice, Equality and Law Reform for that person's surrender to the convention state on foot of a request by the convention state. On receipt of the request, the Minister will certify under section 8 that a request for the surrender of the person has been duly made. Where the court is satisfied that a request for the surrender of the person has been made and evidence of an arrest warrant is produced as provided in section 9, the court, subject to certain requirements, will make an order committing the person to prison or, if under 21 years of age, to a remand institution. The person must then await the order of the Minister for his or her surrender.
In compliance with the requirements, as set out in section 9, and before committing the person, the court will inform him or her that he or she will not be surrendered, except with his or her consent, before 15 days have elapsed. He or she will also be informed of the provisions of Article 40.4. 2º of the Constitution relating to the making of a complaint to the High Court that a person is unlawfully detained. A person committed to await surrender may be released as a result of a successful application under Article 40.4.2º of the Constitution, as a result of an appeal on a point of law to the Supreme Court or if the surrender and conveyance out of the State of the person is unduly delayed, as indicated in section 20. In the absence of any such request for surrender being received within 18 days of the arrest of the person, the Minister, in accordance with section 21, must order his or her release without prejudice, however, to proceedings being taken in the State against the person for the drug trafficking offence in question.
There is always the possibility that the arresting officers might find evidence of offences other than drug trafficking – for example, illegal arms. In such cases, the consent of the flag state will be required for a prosecution in the arresting state. However, the arresting state will be free to prosecute for any offence occurring after the vessel has been taken into its territory – for example, if the vessel's crew assaults an arresting officer. This provision is contained in section 14. A requirement to surrender a person to a flag state will take priority over any domestic proceedings and the High Court is being given power to order the suspension of any such proceedings, without prejudice to their eventual reinstatement as provided for in section 15.
Under section 17, the Minister for Justice, Equality and Law Reform may order the surrender of a person, to a person duly authorised by the convention state to receive such person, if satisfied that the request for surrender is in accordance with the agreement. A similar power is granted to the Minister in section 18 in respect of vessels and evidence. Provision is made to ensure that any arrested person is given time, before surrender, to make a complaint to the courts under Article 40.4.2º of the Constitution that his or her detention is unlawful and this is provided for in section 19.
I referred earlier to an unusual requirement of the agreement which at Article 15.5 makes provision for the flag state, instead of seeking surrender of the detained vessel and crew, to request the intervening state to release them forthwith without charge. When such request is made, the intervening state is obliged to release them. Provision for this requirement is made in section 21(d) of the Bill. In drawing up the agreement, the experts felt that it would be difficult to foresee all the kinds of situations that might arise in its practical operation. It was, therefore, agreed to include this provision as an exceptional safety valve in case something went entirely wrong in the procedure. The explanatory report with the agreement makes it clear however that this provision would only be relied upon in very exceptional circumstances.
Provision for Ireland, as the flag state, to exercise its right to preferential jurisdiction and seek the return of a person detained by a convention state, or the handing over of a vessel or thing seized by that state, is included in section 24. On receipt of notification of such detention or seizure for an alleged drug-trafficking offence, the Minister will decide, after consultation with the Director of Public Prosecutions, whether the State should exercise its preferential jurisdiction for the return of the person, vessel or thing. If such jurisdiction is to be exercised, the Director of Public Prosecutions may then apply to the District Court for a warrant of arrest of the person detained or the handing over of the vessel or thing detained. Provision is included in this section for the issue of warrants and for the alleged offence to be treated as having been committed in any place in the State.
Some changes to the 1994 Act are necessitated by the Bill. I will give an outline of these in addition to some other important changes on the scope of offences covered. The agreement, at Article 3, also requires that each party to it shall take such steps as are necessary to establish its jurisdiction over the relevant offences – any of the drug trafficking offences described in Article 3, paragraph 1 of the Vienna Convention – whether committed on board a vessel registered in a convention state or a vessel of no nationality.
Section 33 of the Criminal Justice Act 1994 is being amended to take account of this requirement, so that it will apply to such drug trafficking offences, and not, as at present, only the offences of possession of controlled drugs or carrying drugs for import or export. This provision is contained in section 28(b). This amendment will widen the range of drug trafficking offences at sea to include not only those to which I have already referred, but all drug trafficking offences, as comprehended in the 1994 Act, when committed on board an Irish ship, a convention state ship or a ship not registered in any country or territory.
While the Council of Europe agreement obliges us to make such provision only for ships of the Council of Europe states, this provision is being extended to also include the ships of all convention states under the United Nations convention. Were this provision not so extended, it would result in the unsatisfactory situation of having a narrower range of offences applying to the ships of United Nations member states than would apply to ships of Council of Europe member states.
In the context of this legislation, the opportunity is being taken to make amendments to sections 35 and 36 of the Criminal Justice Act 1994, which relate to enforcement powers, jurisdiction and prosecution provisions for convention state vessels which are outside the landward limits of the territorial seas of the State. At present, the authority of the Minister for Foreign Affairs is sought in respect of such vessels and that authority may not be granted unless the Minister has obtained the consent of the foreign state. In consequence, action may not be taken against convention state vessels in Irish territorial waters, which are suspected of drug smuggling offences, unless the consent of the flag state has been obtained.
During the drafting of the legislation, advice received from the Attorney General indicated that where such a vessel is in Irish territorial waters the consent of the foreign state to board the vessel is not necessary and sections 35 and 36 are being amended to take account of this advice. The amendments to give effect to these changes are contained in section 28(c) of the Bill. The question of preferential jurisdiction for flag ship states – the main purpose of the Bill – does not arise where the ship is arrested within territorial waters.
I hope that the proposals contained in this significant and somewhat technical Bill will meet with the approval of all Senators. The Bill honours an important international obligation. Furthermore, it is a positive indication at an international level of both our ongoing determination to tackle transnational organised crime and our continuing commitment to tackle the scourge of drugs in our society.
Following on from the conclusion of the Helsinki European Council, which called on the EU to follow up the 1997 action plan to combat organised crime with an EU strategy for preventing and combating organised crime, a new EU strategy – the Prevention and Control of organised crime – A European Union strategy for the beginning of the new Millennium – was approved by the Council of the European Union in March 2000. This seeks to build on the Tampere conclusions and ensure a continuing co-ordinated response to tackling organised crime at EU level.
The strategy provides the framework for an integrated and multidisciplinary European approach to prevent and control organised crime and contains 11 political guidelines and 39 detailed recommendations in respect of the prevention and control of organised crime. Recommendation No. 27 of that strategy document contains a commitment by member states to ratification of this Council of Europe agreement in addition to other conventions.
This is one of a number of Bills which are currently being dealt with which will lead to ratification of international agreements. In particular, the Criminal Justice (Terrorist Offences) Bill 2002 will enable Ireland to ratify the UN Convention for the Suppression of the Financing of Terrorism, the UN Convention on the Suppression of Terrorist Bombings, the UN Convention against the Taking of Hostages and the UN Convention on the Prevention of Attacks on Internationally Protected Persons. It will also give effect to the EU framework decision on combating terrorism. The Criminal Justice (Joint Investigation Teams) Bill 2003, which was before the House last week, will give effect to the EU framework decisions on joint investigation teams.
I am sure that all Senators will agree with the general purpose and thrust of the Bill and I hope we can get it enacted quickly so that the process can be put in train to enable us to ratify this important international agreement. Ratification of the agreement will be a further demonstration of our willingness to do all we can in conjunction with our international partners to continue to tackle organised crime and, particularly, ensure the perpetrators of drug smuggling offences on the high seas are brought to justice. I commend the Bill to the House.