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Dáil Éireann debate -
Tuesday, 13 Jul 1965

Vol. 217 No. 7

Extradition Bill, 1965: From the Seanad.

The Dáil went into Committee to consider amendments from the Seanad.

There are a number of amendments which the Seanad made and which I propose to accept. Perhaps we should take them seriatim.

Amendments Nos. 2, 5, 8, 9, 10, and 11 are cognate and can be taken together.

I move that the Committee agree with the Seanad in amendment No. 1:

Section 28: From "and the Minister" in line 37 to "health" in line 41 deleted.

This is an amendment to section 28 so as to enable the Minister for Justice to order an extradition case to be heard outside Dublin. The section as it stood was unduly restricting in that an extradition case could only be held outside Dublin in the event of the ill health of the person apprehended. It would be better to enable the Minister for Justice to order the extradition case to be heard wherever it is stated on the order in any particular case. I agree with the amendment.

Question put and agreed to.

Amendments Nos. 2, 5, 8, 9, 10 and 11 taken together.

I move that the Committee agree with the Seanad in amendmend No. 2:

Section 43: in subsection (1) (a), line 29, "by a judicial authority" inserted after "issued".

These amendments were suggested to the Seanad in order to emphasise that only a warrant that was issued by a judicial authority in Britain or Northern Ireland, will be enforced here. I agree with the suggestion that as the Bill stood judicial authority was not spelt out. A situation could arise where warrants could be issued by other than judicial authorities. I suggest that it should be made plain on the fact of the warrant that it was issued by a judicial authority. I agree with the amendment.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 3:

Section 47: in subsection (1), line 46, "Such custody shall be lawful custody" deleted.

This is an amendment of section 47. It is on the same lines as another amendment to which I agreed in the Dáil on the suggestion of Deputy Dillon—that we should not deem a person in the custody of a foreign police force to be in lawful custody. Deputy Dillon suggested it in respect of persons in the course of transit through this State. In this context it refers to the police force to whom a prisoner would be handed over. We should not deem such custody to be lawful custody in our jurisdiction. This amendment is consequential on the amendment suggested by Deputy Dillon.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 4:

Section 48: in subsection (3), line 16, "of his right to make such application and" inserted before "that".

This is an amendment to section 48 which I tabled on Committee Stage, arising out of a suggestion made on the Second Stage reading, in the Seanad. The point was made that the person on being brought before the District Court should be informed of his or her rights under the Act and under the Constitution to go by way of statutory application for a declaration that the offence is an exempted offence, or to apply under the habeas corpus provision in the Constitution. This section as amended now spells out that the district justice before whom an apprehended person is brought must inform the person as to his or her rights both statutory and constitutional.

Question put and agreed to.

I move that the Committee agree with the Seanad in Amendment No. 5:

Section 49: in subsection (1) (a), line 27, "by a judicial authority" inserted after "issued".

Perhaps the Minister will tell us whether he has envisaged what would happen if the district justice overlooked giving this formal warning to the person apprehended.

Well, in the first instance, he has his legal rights. He may have recourse to the High Court in the event of the district justice not informing him of his rights. He would have his basic statutory right under section 50 to go to the High Court and he would have his constitutional right by way of habeas corpus.

Supposing it transpired that he had been absent and had never got this statutory notice?

I suppose there is very little of practical use that could be done if the person is outside the jurisdiction. There is very little we could do to protect a person's right if he is out of the jurisdiction.

What is the position of a person who under our jurisdiction is entitled to the protection of our laws and finds himself illegally extradited? We all know that at present the police cannot go and take a man by the scruff of the neck and pitch him across the Border—or they ought not —or into a boat and transfer him outside our jurisdiction. They must come before our courts and establish that they are acting under warrant and satisfy the court that the process of extradition conforms to our law. It is only when all these things have been done that our police may lawfully surrender to the custody of an alien Government any person within our jurisdiction.

Now we have provided that our police cannot lawfully do this unless the person concerned was brought before a district justice and his extradition order having been made, he is warned formally "and you are now entitled to remain here for 15 days" and secondly, "I direct your attention to your constitutional rights under article 44 (2) of the Constitution". Suppose the police—the district justice having omitted to discharge this statutory duty—removed the man from the custody of the courts to the custody of an alien Government, what is the position? Has the man a right of action against our Government for improper extradition? He must have a right of action against somebody. Mark you, the introduction of this statutory warning very seriously complicates the processes of extradition because it does appear that unless this statutory requirement is carried out the courts cannot surrender the person.

I think the Deputy is overstating the case. The actual words making it incumbent on the district justice to make the person aware of his position were inserted by me at the request of Senators and are in ease of the apprehended person. Any rights that person may have, are matters which he can pursue in the courts. The fact that he was illegally ordered to be extradited would be a very sound reason, in my view, for his release. It is in the section by implication as it stands that the district justice should inform him of his rights. We have to take it on faith that the courts will observe the legal processes properly and the person would secure his release if these were not observed.

I recognise that the Minister has done this fully in ease of the person, but suppose a person is apprehended on foot of a British warrant and is brought before a district justice, an order is made and these statutory requirements are not complied with and the person to be extradited "sings dumb" until the proceedings in the district court have ended, what is going to happen then? Can he go to the High Court to have the extradition order negatived on the grounds that the statutory requirements of making a valid order have not been carried out? Also, if he should successfully do so is he not thereafter completely protected from extradition in respect of that particular offence or warrant? Mark you, some district justices do remarkable things.

I will not demur from that suggestion. In answer to the Deputy's point, first of all, the person has his basic habeas corpus rights so that he or she may go to the High Court. There is also a statutory right under section 50, arising out of any order the district court may make. That largely meets the point the Deputy has in mind.

Supposing the order is bad in regard to the statutory conditions and the man "sings dumb" and on the following day applies to the High Court to have the extradition order quashed on the grounds that the statutory requirements have not been carried out in that this warning was not given, is that man not entitled to have that order quashed and is he not immune thereafter from extradition?

We are speculating now on hypothetical circumstances. I would envisage that if such a matter arose, as the Deputy suggests, that the High Court would then declare the particular proceedings to have been invalid and would refer the matter back to the district court for compliance with the statutory requirements.

Perhaps the Minister will look into this.

I will. I imagine that is what would happen.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 6:

Section 51: in subsection (1) (c), page 17, line 2, "an" deleted and "the" substituted.

This is a drafting amendment and is purely grammatical.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 7:

Section 51: in page 17, between lines 10 and 11 a new subsection added to the section as follows: "( ) In this section, `trial' includes any proceedings in connection with the offence."

This is merely to say what "trial" means in section 51. It is a drafting amendment again.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 8:

Section 54: in subsection (1), line 4, "by a judicial authority" inserted before "in" where it first occurs.

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 9:

Section 54: in subsection (1), line 9, "by a judicial authority" inserted after "issued".

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 10:

Section 55: in subsection (1) (a), line 37, "by a judicial authority" inserted after "issued".

Question put and agreed to.

I move that the Committee agree with the Seanad in amendment No. 11:

Section 55: in subsection (1) (a), line 42, "by a judicial authority" inserted after "issued".

There is no amendment No. 11 on my Amendment paper.

I have it on my paper anyway.

Another grievance.

Where is amendment No. 11?

It is to section 55.

It is on the paper I have.

It is not on my paper.

The last amendment on my paper is No. 10.

The Deputy has to be out of date.

It is not surprising that anything prepared under the auspices of Fianna Fáil is defective.

It is merely an amendment which is consequential on the other amendment which we have adopted in relation to section 43, to insert "by a judicial authority" wherever it should be inserted in regard to the execution of a warrant.

Our proceedings have become casual to a degree if the paper circulated does not include all the amendments.

With the compliments of the Fianna Fáil Party.

I hate being under any obligation to them but I am obliged to the Minister for passing the paper to me.

Question put and agreed to.
Amendments reported and agreed to.
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