Can the Minister give any indication as to when the Act will come into operation?
Committee on Finance. - Extradition Bill, 1965: Committee Stage.
As soon as possible.
Has the Minister examined the point raised with regard to the maximum and minimum? I think, on reflection, it is correct as it stands.
It is correct. It simply conforms with the Convention.
On a quick reading of the Convention, it looked as if the Convention intended to say "minimum" instead of "maximum", but I think it is right on one reading.
Yes, on a close reading of it.
I should like to ask the Minister the reason for the change in the wording as between section 13 in the present Bill and the corresponding section 13 in the previous Bill. In the previous Bill, it was set out that "extradition shall not be granted for offences contrary to laws relating to taxes, duties, customs and exchange". That has been condensed in this Bill to read:
Extradition shall not be granted for revenue offences.
Article 5 of the Convention refers to fiscal offences. It reads:
Extradition shall be granted in accordance with the provisions of this Convention for offences in connection with taxes, duties, customs and exchange only if the contracting parties have so decided in respect of any such offences or category of offences.
It seems to me the 1963 Bill introduced by the Minister's predecessor conformed more closely to the terms of Article 5 of the Convention than does the more general wording inserted into section 13 of the present Bill. It may be that the Minister has been advised— I presume that is the case—that the phrase "revenue offences" extends to cover offences relating to taxes, duties, customs and exchange. But, without some explanation from the Minister, that is not immediately apparent and, therefore, I think the Minister should explain the change.
This really goes back to section 3 where we have defined revenue offences very specifically. The section reads:
"revenue offence", in relation to any country or place outside the State, means an offence in connection with taxes, duties or exchange control but does not include an offence involving the use or threat of force, or perjury or the forging of a document issued under statutory authority or an offence alleged to have been committed by an officer of the revenue of that country or place in his capacity as such officer;
The purpose of that definition is to make it quite apparent that this is in ease of a person who may be claiming an exception in that it makes it quite clear that it applies to a specific revenue offence and, with some exceptions, to any offence which might be regarded as a revenue offence but would really be a common law offence.
That does not make sense to me. Either we propose to exempt from the general power of extradition all offences relating to fiscal matters, such as fraud on the Revenue or what are generally regarded as fiscal matters. Do we intend to exclude smuggling? What does the Minister mean to exclude from the general power of extradition?
I will give an example—"cooking" the books, embezzlement, which may involve defrauding the Revenue but is, in effect, an embezzlement charge in common law. That would be an offence related to revenue matters and would come into the category of an excepted offence.
Am I correct in understanding the Minister as saying that where the offence is one of embezzlement, or something in conflict with the common law, in which it is sought to put the cloak of respectability upon it by contending it was done primarily to defraud the Revenue, and the other was only a secondary result, that will bring the delinquent within the protection provided?
Who will determine which is the common motive? Will any element of common law offence in what is, in fact a revenue offence make a person liable to extradition? There must be somebody who will decide somewhere.
The courts will do that. That is the purpose of the provision. We are allowing the High Court to decide on the facts what is a revenue, political or military offence.
And the remedy for a person threatened with extradition is to go to the courts on a writ of habeas corpus on the ground that it is sought to extradite him on the ground of a revenue offence and it will be for the courts to determine whether the grounds for extradition are, in fact, pure revenue or mixed to such a degree as would justify his extradition.
Yes. The situation when the Bill becomes law will be that the person who is arrested must automatically go before the district court. If the arrested person makes the case in the district court that the offence with which he is charged is an excepted offence the district justice will explain to the person concerned his right to go to the High Court or the Minister for Justice for a decision as to whether or not it is an excepted offence. That will be the procedure.
I do not want to raise impossibilities for the Minister to answer off the cuff because I know the difficulty in trying to do that, but there is present in the minds of many of us a pretty famous case in which a gentleman became involved in whiskey on which he did not pay duty, or something like that, and took refuge in this country. Suppose the authorities charge him with a traffic offence and we know well that what they are really trying to do is to get him back within the jurisdiction to clap the other charge upon him, which would be a charge of substance, do we simply surrender him, although manifestly the spirit and the intention of the legislation is that he should not be surrendered?
It is intended, I think to be in accord with section 20 but they are entitled to proceed only on the matter extraditable. I think one has to take it more or less on faith.
I think that is so. On the face of the warrant, it is a road traffic offence the person is charged with and we will have to accept that as a matter of faith.
Would it not have to be a serious road traffic offence to bring him within the Act?
That is manifest.
The Convention provides that he will not be prosecuted for anything other than the offence in relation to which he is extradited but, if they proceed to prosecute for a revenue offence, there is nothing we can do about it.
There must be good faith on both sides.
I should like to ask the Minister why the last part of this section appears: "unless the relevant extradition provisions otherwise provide". It seems to me to be unnecessary to have that phrase.
The point there is that we will still have a number of extradition arrangements to make— eventually, we hope, with every country in the world. These will vary in character. As far as the immediate future is concerned, we shall have arrangements with Britain and Northern Ireland and with a number of European countries which have ratified the Convention, but we hope to expand this into a scheme of extradition arrangements with every country in the world. America is an obvious example. Under this Bill we will have power to make such extradition arrangements as we may devise between ourselves and the United States. These may involve reciprocal arrangements for the extradition of nationals.
Deputy Dillon referred to the question of bad faith. I suppose if an offence were committed here and proceeded against here, there is, so to speak, absolute control then? If we take proceedings in respect of an offence in this country, we are not obliged then to extradite? Is that not the position?
(Cavan): Until such time as the prosecution here would be dealt with?
We could do it here.
(Cavan): As I read the section, it says extradition shall not be granted where a prosecution is pending here on perhaps some entirely different offence.
Section 17 follows on from that.
This is another section we have to take on faith? There is no assurance of it?
I should like to repeat what I said about this on Second Reading. This seems to me an improvement on the position in that it puts this country in the position, if we so wish, of seeking that what might be regarded as the traditional Anglo-American code in relation to extradition will apply rather than the purely continental code which is, generally speaking, envisaged in the Convention. Under this section we can have prima facie evidence of the case against a person being extradited or where extradition is being requested.
I take it that (e) of section 25 is consequent on section 22?
Though it does not appear in the marginal note, I think this arises under Article 13 of the Convention. Subsection (4) reads:
The Minister may refuse extradition if he is of opinion that the case is one in which extradition is prohibited under any provision of this Part or under the relevant extradition provisions.
It seems to me that should read "the Minister shall refuse". I do not think it should be left in any way discretionary to the Minister in a case where it is clear that extradition is prohibited. It is only a drafting point, but I think it should be made.
I think there is something in that.
My recollection is that in the previous Bill a period of only eight days was allowed. Originally, it was 15 days. Then it was changed to eight days. Now it is back to 15 days. I understood the Minister to say on Second Reading that this arose out of a discussion which took place—that it was decided it would be more appropriate to go back to 15 days.
In the present Bill it is 15 days with foreign countries— the Part II countries. That is the present law under the 1870 Act. It was eight in the original Bill. Now we are going back to 15, to bring Part II into line with Part III in this respect.
Again, I should like to raise the point I raised on section 26 regarding "shall" and "may". I would ask the Minister to look at subsections (1) and (2) here from the same point of view.
I agree there is something in that.
This section states:
A document supporting a request for extradition shall be received in evidence without further proof if it purports to be signed or certified by a judge, magistrate or officer of the requesting country and to be authenticated by the oath of some witness or by being sealed with the official seal of a minister of state of that country and judicial notice shall be taken of such official seal.
I am a little doubtful as to whether that is strong enough in relation to "some witness." It seems to me it certainly would be preferable, if it were practicable, to provide there should be what might be described as an official witness in the sense that it should be an official of an embassy or consulate or something of that sort. The point I want to make is that, generally speaking, the authorities here will not have the foggiest notion as to the identity of the witness if it is left in the general form of "some witness". If it is required that the witness should be a member of an embassy or something of that sort, then the question of identity can be very easily established.
This is really a restatement of section 15 of the old Act.
I am not pressing the point but I would like the Minister to have another look at it.
I shall have another look at it.
Could the Minister give an example of what subsection (1) means?
It refers to any serious offence committed by an Irish citizen on holiday, say, on the continent.
I understand that, but how will he be proceeded against here for an offence committed in another country?
I agree that there will be practical difficulties in doing that but it can be done.
Surely this is a section to enable the Minister to avoid extraditing a person for an offence committed abroad. We are prepared to say to a foreign Government: "If our citizen has infringed your code of law, that is deemed to be an offence within our law and we will deal with him on a charge that it is a statutory offence in having broken your law." I accept section 38 on this understanding. Otherwise, if the indiscretion were committed in France, the person might have to be sent back to Paris to answer for it.
How are we going to bring the offence home to him?
We are primarily concerned here with bringing the offender home and not leaving him to the tender mercies of the foreign country.
It is designed to ensure that we can move against our citizens who have committed offences abroad rather than extradite them. There may be difficulties about such matters but they can be overcome.
In fact, we would not be able to bring the offence home to the guilty person. How do we go about that?
It is not impossible.
The offence is not personally brought home to him.
All we can do is see that the person is punished for the offence here. Is that not better than leaving him to the mercies of some foreign law?
I do not quite understand exactly what this section is designed to achieve. Perhaps the Minister could explain it.
This is just a practical measure to ensure that where there is transit of an extradited person from one country to another through this country, my prior permission is necessary. This arrangement is in accordance with the European Convention.
It may be, but I would be obliged to know what it is for. It says that transit through the State of a person being conveyed in custody from one country to another on his surrender pursuant to an agreement in the nature of an extradition agreement may be granted by the Minister following a request to that effect made by the country to which he is being conveyed. The person who is in custody during such transit should be in lawful custody.
Is it envisaged here that this is a situation in which someone arrested in America is being brought to, say, Germany and for some reason comes down at Shannon? While he is in this country he is transferred by bus from Shannon to Dublin and then transhipped. Is that exactly what it is?
That is a practical example.
Is it designed here to ensure that if he is in the custody of foreign police, he is in their lawful custody while within our jurisdiction? Is that good practice?
It is. It is part of the mechanics of extraditing from one country to another. It enables a person who escapes here to be re-arrested.
It strikes me as odd that we should provide here by statute that a person who is in custody during such transit should be in lawful custody. After all, custody goes right to the root of habeas corpus. It seems an odd situation that we should envisage a situation arising in which police of a foreign country can hold in lawful custody within our jurisdiction a third party. This seems a complete departure from the whole conception of our sovereignty which charges the Minister for Justice, as the responsible Government Minister, with the safety and protection of every individual person's liberty within our jurisdiction. This is a very fundamental principle which we ought to be very slow to abridge for practical convenience. I do not know whether this is an essential element in the Convention, which we are trying to implement by this Bill, but I have an instinctive reaction against the whole conception of allowing foreign police to hold in lawful custody any person within our jurisdiction. I am sure that must be an instinctive reaction which the Minister shares.
I have a certain sympathy with what the Deputy says but the facts of the matter are that in any arrangement with other countries there will be some element of a limitation of sovereignty. If I may, I will take the practical example given by the Deputy of a person coming from America to Germany, who is detained at Shannon Airport. If he is deemed to be in lawful custody, as we suggest here, and if he escapes from Shannon Airport, what are we to do about it if we have not ensured that he cannot be re-arrested?
That is very thin. I am not so sure I agree with the Minister. If he escapes from the custody of his custodians, he is then a refugee and the State's concern for him is that he is extradited. A person arrives at Shannon Airport in lawful custody and goes out of the custody of his custodians. If it is then discovered that he was in the lawful custody of his custodians for an offence for which we would not extradite him and he now claims asylum of the foreign Government which extradited him, what happens? There is no prima facie case against this man for that offence. He will then be entitled to asylum.
He will have the fundamental habeas corpus right.
What is the fundamental right if he is in lawful custody?
But he could seek asylum if he escapes. You are postulating that he has escaped.
He gets out of the custody of his custodians and now is guilty of a statutory offence under our law.
That is right.
I do not like that.
It is a practical follow-up of the extradition arrangement.
My father was in lawful custody at the courts of Clonmel. He hooked it out of Clonmel, got a boat at Bulloch Harbour and landed in France. I have a feeling that people in "lawful custody" are not necessarily in lawful custody. I am sure there is a good foundation for this. Lawful custody in this country should consist of a custody imposed under our law. What we are doing under subsection (2) is recognising as lawful custody a custody imposed under a law for which we have no responsibility. All through this Bill, we have followed this theme.
If this kind of offence alleged against a foreign citizen is generally recognised as being an offence for which he ought to be made answerable to the law, we are prepared to surrender him to a civilised Government to have him made answerable to the law, but we reserve the right to say, in respect of certain categories of offenders, that we do not feel any obligation to surrender them for the type of prosecution to which they would be submitted if we handed them back to the foreign sovereign power which claims jurisdiction over them. So, we have always retained our over-riding right to determine the fate of anybody who is within our jurisdiction. I do not like the thought of our creating, by statute, a situation in which a person can travel in our jurisdiction in the lawful custody of police over whom we have no jurisdiction. Is there not something wrong with it?
If we followed up the Deputy's proposition, we would make no international arrangements of any kind.
I would take a very different view if this section were drafted in such a way that the individual came within the safe keeping of our Garda Síochána in our jurisdiction and only while he was in that keeping was he in lawful custody. My problem is this: do we want to create a statutory situation in which a person is in the lawful custody of police over whom we have no control within our jurisdiction? I do not think we ought to do that. If the Minister says that, for the practical application of this whole pattern of extradition, some device of this kind is necessary, I would ask him to consider whether there is not some means of saying that if a person is in lawful custody in our jurisdiction he shall remain in the lawful custody of the Garda Síochána until he goes out of our jurisdiction: if a person arrives in lawful custody, we will hold him in it until he passes out of it again but, while in our jurisdiction, that matter is for our Garda Síochána.
We can do that as a matter of practical application.
I see a situation arising in which two or three members of the secret police from Moscow might land here for some fellow with whom we might have the greatest sympathy.
We have not made an arrangement with Moscow.
They might come from Cuba or elsewhere. I want to provide that we shall not be in the position that the police officers of jurisdictions for whom we have no respect and whose discretion we do not trust shall have statutory protection as lawful custodians in our jurisdiction. All I ask is that the Minister will examine this matter.
I will do that. I shall look at it.
The point raised by Deputy Dillon is of substantial importance. It seems to me that possibly the difficulty has arisen because of a very severe compressing in our section 40 of Article 21 of the European Convention on Extradition. It seems to me that a number of the matters which Deputy Dillon has very rightly raised were possibly envisaged in the Convention because Article 21 of the Convention contains very much fuller provisions than are contained in section 40 of this Bill. In the first place, it provides that the entire matter is permissive: that is brought out clearly enough in the section because the Minister may, or may not, as he himself decides, grant these facilities for transit. It then deals with the use of air transport where it is simply a question of flying across or landing. Article 21 provides that when it is intended to land, the requesting party shall submit a formal request for transit. This provision, if operated, could go a long way towards meeting the case made by Deputy Dillon.
The Convention then provides that a party may, however, at the time of signature or of the deposit of its instrument of ratification of, or accession to, this Convention, declare that it will only grant transit of a person on some or all of the conditions on which it grants extradition. The Convention further provides that the transit of extradited persons shall not be carried out through any territory where there is reason to believe that his life or his freedom may be threatened by reason of his race, religion, nationality or political opinion. The whole operation is a permissive one.
I think it certainly should be possible for the Minister to make it clear, in reply to any request for transit, that the transit will have to be carried out under the supervision, say, of a member of the Army here or of our Garda Síochána so that we would preserve, while in transit, the position where the custody is our custody and not the custody of police from another country over which we have no control whatever. I think the fact that, quite rightly, is worrying Deputy Dillon is that we would have no control whatever. But if we stipulate that we will grant it on conditions, one of which will be that an Army officer or a member of the Garda Síochána shall supervise the transit, then I think we would be preserving the position.
I think there is something in this point. I will have a look at it between now and the Report Stage.
I should like it specifically to be set out in the Bill that custody will be qualified by a supervisory or participating——
We can bring in the further wording of the Convention.
The question of indictable offences which was not in the previous Bill is brought in. Also imprisonment for a maximum period of six months applies now. It used to be three months. Would the Minister explain why this alteration has been made?
It was done primarily to bring it into line with the British measure. That was their thinking on it and I saw no reason why we should depart from it.
I move amendment No. 1:
In page 15, lines 12 and 13, to delete "to the High Court or the Minister for his release in pursuance of this Part" and substitute "for an order of habeas corpus or for his release under section 50,”
The purpose of this amendment is to ensure that it is made quite plain on the face of the section that, in addition to the statutory rights under section 50, the person detained has his fundamental constitutional rights on the application of an order for habeas corpus. I think it is desirable, having regard to the discussion here on the Second Stage, to have it spelled out because there might be a situation where the applicant might not come under Section 50. Section 50 is primarily designed to deal with exempted offences but if there were something wrong with the warrant, something illegal on the face of the warrant, not just a matter of whether or not the offence was an exempted offence, then of course the detained person would have a fundamental right to go for an order of habeas corpus on whatever grounds he saw fit.
It is not essential to have it in. So long as the Constitution is there, everybody has this right but I think it is desirable to spell it out there along with the statutory rights.
I would entirely agree with the Minister's decision that it is desirable to spell out in the amendment we have just adopted the fundamental right of habeas corpus, which is inherent in the Constitution. In that connection, I should like to be reassured that, under section 44 which forms part of this whole group protecting the rights of the individual, there is a proviso that if the offence in respect to which extradition is sought is a political offence, or an offence under military law, or a revenue offence, extradition shall not be granted, and the Minister or the High Court, on the question being referred to the High Court by the Minister, shall direct that in accordance with this section the warrant shall not be endorsed.
I am not quite clear in my mind as to how the individual in respect of whom extradition is sought gets to the court. If the Minister threatens to endorse the warrant and the individual thinks he can make a case before the court that the foreign power sought to extradite him for a political offence, or an offence under military law or a revenue offence, how does he get to the courts to get a declaration that the charge against him falls under one of these three heads and that, therefore, no endorsement should be made to the warrant?
This is, if you like, a separate additional protection, apart from the basic protection in the Bill for arrested persons. Where a person has been arrested, he must be brought before the District Court. On being brought before the District Court he has two remedies. He may plead that the offence is an exempted one and he may ask that the matter be decided by the Minister or the High Court, or he may come by way of habeas corpus to the High Court.
In section 44 there is a further protection in that, before the execution of the warrant and before it is even endorsed, I, as Minister for Justice, may have the matter referred to me by the Commissioner of the Garda. I may then make a decision, or I may refer the matter to the High Court, on whether or not the warrant should be endorsed at all.
In fact, even though the Minister should direct the endorsing of the warrant, the only consequence would be that the person sought would come before the court and that the court would therefore act as his friend as well as his protector in considering his rights under this section?
10th June, 1965.
In the meantime, will the Minister look into the matters referred to?
I shall do that.