Private Members' Business. - Extradition (European Convention on the Suppression of Terrorism) Bill, 1986: Committee Stage (Resumed).

Debate resumed on amendment No.a1:
In page 2, before section 1, to insert the following new section:
"1. —The following section is hereby substituted for section 22 of the Act of 1965—
‘22. —(1) Where extradition is requested for the purpose of proceeding against any person, to whom this section applies, for an offence, the requesting country shall produce signed statements of witnesses, which, if the person were being prosecuted for a similar or corresponding offence under the laws of the State in respect of an act committed in the State, would be required to be tendered at a preliminary examination before a Justice of the District Court, in order that an order returning the person for trial on indictment might be made.
(2) An order for committal under section 29 of this Act shall not be made unless the Justice is satisfied on the basis of the said statements and other documents that the person claimed would be returned for trial in the State if the offence had taken place in the State.
(3) This section applies to persons who are Irish citizens and to any other persons to whom the relevant extradition provisions provide that it shall apply.'."
—(Deputy O'Malley.)

Amendment Nos. a1, 3, 7 and 9 are being discussed together. Deputy Woods is in possession.

Before we adjourned for ‘Private Members' Time I referred to some of the Minister's comments in his contribution. I had asked the Minister if he would outline for us in some detail the method which he has in mind whereby an official at a high level would certify a request for extradition in the requesting state. Who is the high official the Minister has in mind? Is it the Director of Public Prosecutions as was suggested in newspaper reports? The Minister did not mention the British Director of Public Prosecutions or any Director of Public Prosecutions but the convention deals with a large number of countries and there would be different kinds of officials in the different countries. Perhaps the Minister would tell us what he has in mind in that respect.

The Minister also said in an interchange with Deputy Blaney that a prima facie case would not have made much difference in the cases——

Possibly in one. Now the Minister can say it would have made no difference in any of them. Possibly in one case it might have made a difference, if I understand the Minister correctly. The Minister has repeated that now and seems to be quite clear about it. If that is the case how would the introduction of a prima facie case turn Ireland into a haven for terrorists as was stated by the handler for the Government in this morning's newspaper? The Minister should have advised that spokesperson of what he had to say in the House so that he will not make misleading statements in the media again. That would be helpful to everybody and it would remove one of the red herrings which was set about the place during the last few days.

The Minister seems to be concerned that our amendment and the related amendments seek to make a special exception with regard to our own citizens. We have said that there are several ways in which this could be done. Article 6 of the convention states quite clearly that a contracting party shall have the right to refuse extradition of its nationals. At the time of signing the basic convention on extradition we defined national as citizens of Ireland. If you can, under the convention, refuse extradition of nationals entirely, then surely you can refuse only nationals where a prima facie case does not exist? In other words, you would be refusing less than other countries are refusing because in the case of other countries they are refusing to extradite their nationals entirely. Obviously, if we were to refuse to extradite only those nationals against whom there is no prima facie case, surely that must come within the ambit of Article 6? If it is not feasible, I have suggested to the Minister that there is another remedy which is the option of denunciation and readmission.

The Minister seems to suggest that looking for safeguards for our citizens is unusual or extraordinary. He has pointed out very clearly that he is seeking these changes in the context of the Anglo-Irish Agreement. In the White Paper of March 1986 on extradition the British Government said that they considered that such reform of UK extradition law will represent an effective contribution to the fight against international crime and that procedures will be simplified but these will be balanced by the preservation of the most effective means of safeguarding the individual. Once again, I emphasise their concern to safeguard their citizens.

The White Paper went on to say that this will include the power of the Secretary of State to withold extradition in any case in which he considers it appropriate. The White Paper went on to state that there are other effective ways in which the rights of the fugitive are protected and gives as an example the proper application of the political safeguard. In the White Paper the British had very much in mind the protection of their own citizens.

The command document of February 1985 which preceded the White Paper stressed the case for retaining the requirement of a prima facie case. No doubt this will be argued now in the British Parliament. Section 2.2 states that the basic justification for the prima facie case requirement is a desire to ensure equality of treatment for all persons who stand before the courts accused of an offence wherever it was committed. Equality of treatment is what we are talking about. There should be equal treatment whether one comes before the Irish courts to be extradited or to go on trial here. The Command Paper goes on to state:

Abolition of the prima facie rule would thus mark a significant departure from the broad alignment of extradition proceedings with our domestic criminal proceedings which the 1870 Act secures.

It further states:

The case for maintaining the prima facie requirement derives some support from the fact that the United Kingdom is, in contrast to some foreign countries, prepared to surrender its own nationals. This means that British nationals can be extradited to countries where they face criminal proceedings under a legal system which is different from that which prevails in this country. Anyone who has had to face legal proceedings in a foreign country is likely to experience greater hardship than if he faced trial in his own country.

These are the views of the British as expressed in the Command Paper and in the White Paper. It is interesting to go on from that and see what they have done in their Bill. The Minister refers us to the fact that the British are changing their position now and therefore we should change ours, but it would be advisable in the first instance to look at what they are doing. It is quite clear even from a preliminary examination of the Criminal Justice Bill printed on 13 November last. Part I deals with fraud and Part VIII deals with extradition. Section 93 (2) states:

A person who is alleged to be unlawfully at large after conviction of an extradition crime by a court in a foreign state shall not be returned to that state, or committed to or kept in custody for the purposes of such return, if it appears to an appropriate authority— (a) that the conviction was obtained in his absence;

I would refer the Minister to section 4 (b) of our amendment No. 3 which states:

Provided always that no person shall be extradited if that person has been tried and convicted in absentia.

They seem to have similar concerns. Maybe we are not such unreasonable people after all. Maybe we are concerned with the rule of international law, how it applies to different countries and how it should apply to citizens. The British state in regard to such a conviction that it would not be in the interest of justice to return a person to a foreign state. There are two conditions in that British Bill to which the Minister has referred us. Section 93 (3) states:

A person accused of an offence shall not be returned to a foreign state; or committed to or kept in custody for the purpose of such return, if it appears to an appropriate authority that if charged with that offence in the United Kingdom he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction.

It is explained in subsection (5) that "appropriate authority" means the Secretary of State, the court of committal, the High Court or the High Court of Justiciary. Section 94 deals with the authority to proceed with an extradition request. Subsection (2) states:

There shall be furnished with any such request—

(a) particulars of the person whose return is requested;

(b) particulars of the fact upon which and the law under which he is accused or was convicted, including sufficient to justify the issue of a warrant for his arrest under this Part of this Act;

The words to which I should like to draw the Minister's attention are "particulars of the fact upon which". As I understand it, that legal term means that there is a requirement for hard information to enable the person to know what is alleged against him, as opposed to a mere legal description. That is a stronger requirement which they are including in their Bill. Section 94 (3) states:

On receipt of any such request the Secretary of State may issue an authority to proceed....

This relates directly back to the Command Paper and to the White Paper. It said clearly in the White Paper that they would not agree to do away with the prima facie rule unless they saw safeguards for their own citizens. These safeguards would include the power of the Secretary of State to withhold extradition in any case in which he considered it appropriate. They said clearly what they had in mind and they have included it in the Bill. They seem to be doing what many of our European partners are doing — reserving unto themselves the final decision as to what is or is not a political offence.

The Minister suggests that we would be departing in some way from the Anglo-Irish Agreement by not accepting his proposals hook, line and sinker and asking no questions about them. He maintains that by accepting these serious and concerned amendments we would be doing damage to that agreement. This cannot be so, especially if we look at what the British are doing. The Bill I have quoted was printed on 13 November for current discussion at Westminster. They are following a consistent policy spelled out in the White Paper, the Command Paper and the Bill. It is not as if the Minister were not aware of their thinking in this matter. That is the key phrase there: "On receipt of any such request the Secretary of State may issue an authority to proceed unless it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Part of this Act." That would appear to be the position adopted by the British. Of course, we have yet to see what happens to that Bill; it is not yet an Act.

It would be very interesting for Members of this House to hear the debate in the British House of Commons on that whole issue. I am sure that the speakers would be concerned to protect their own individuals and would not be making apologies to anybody about that. I presume they regard that as their first duty, a duty which the Government here seem to have set aside. I say the Government because I believe that the Minister is being directed to go through this Bill without any amendments, apart from the minor amendment which, obviously, has come also from the Cabinet table.

I have listened to the Minister and am even more convinced of the value of the amendment which we have put down and, indeed, the amendment put down by Deputies O'Malley and Harney. Nothing that the Minister has said so far has convinced me otherwise. I find it hard to understand how he has departed so totally from the line that was taken previously, the line on which the Criminal Law (Jurisdiction) Act was based, which is the existing legislation. It is capable of being used in the context of the North and South of Ireland which is where the Minister says he envisages the greatest difficulty. There is a means, a mechanism for dealing with that. It is a mechanism which ensures that there is reasonable protection for citizens of this State.

I should like to hear from the Minister in relation to his new proposed method of certification. Who will certify and what will be involved? I cannot see it having any great effect because it will have no statutory backing. It would, of course, not be a matter for the courts in that event, consequently it would not be acceptable. Nevertheless, I should like to hear what the Minister has to say in that regard at some greater length.

On this question of the proposed prima facie requirement, I set out earlier this evening the reasons for my conclusion that it is not an appropriate step to take. Let me summarise very briefly. I said that the first and in my view the conclusive reason was that to introduce any new requirement of the kind suggested would represent a move in the wrong direction, a move out of step with our neighbours and with our co-signatories of the European Convention on Extradition. Nothing that has been said during the course of the debate this evening takes away from that. I do not for a moment dispute the fact that underneath the proposal there are real concerns but I pointed out — and will develop this a little further — how we meet these concerns and what mechanism we have for meeting them. The fact of the matter is that the prima facie requirement is not one that could be operated under the terms of the Convention on Extradition. It is not one which any of our co-signatories operate. It is a requirement which the British Government are now intending to do away with and I intend to take up some of the points raised by Deputy Woods in that connection.

I also made the point that I doubt if it would work. Deputy Taylor raised a couple of reasonable questions about that. He did not seem convinced that that would be the case. To go back to that part of the discussion — and this is without prejudice at all to my first conclusion, which is that I think it is an inappropriate step, given our circumstances — I doubt that it could be held that a person whose extradition was being sought from this country, who was going before a District Court in that particular framework could be deprived of the right he would have under our system to question witnesses and that applies not simply to prosecution witnesses but to any witnesses who might be relevant in the case.

As Deputy Taylor pointed out, there could very well be very serious problems as to the compellability of witnesses, as to the means that might or might not be there to ensure the presence of witnesses. If a defendant claims the right, as in our system he could very well do, to have those witnesses present and they were not present, then could a conclusion be drawn from that? What difference would that make to the view that a judge would take? Could one say that a district justice would decide, notwithstanding the fact that witnesses were not available and the person had been unable or not in a position to defend himself, that there was a good case here to return this person for trial?

I do not think that the House has really given enough attention to those difficulties, nor indeed has the House given anything like enough attention to the problems that could arise in relation to the admissibility of evidence. I do not intend to go over the whole matter again, but nothing that has been said here has in any way taken away from the argument I put forward in that connection. That being the case, I take the view that the second reason I gave for being opposed to this step holds.

There is a very big difference, of course, if we are looking at the obstacles there would be to extradition, between the case, on the one hand, where a legal officer in the requesting country has to form an opinion as to the probability of a prosecution and, on the other hand, the situation as to whether a hearing in a court in the requested State could arrive at a reasonable conclusion, as I say, perhaps based on the written statements of witnesses but in the absence of the witnesses. In our system a district justice who has been called on to make that decision would clearly have to consider the evidence of all the witnesses and not simply those called by the prosecution.

Deputy Taylor also raised the question as to who the high legal officers would be in the United Kingdom who would have to satisfy themselves as to the sufficiency of admissible evidence and Deputy Woods referred to this just a moment ago. In order to make it clear, I want to repeat what the system is. I have already indicated it several times to the House. What we have agreed is that a warrant for the return of a fugitive would be sought only where the Crown Prosecution Service in England and Wales, or the Director of Public Prosecutions in Northern Ireland is satisfied that there is a clear probability of a prosecution founded on a sufficiency of admissible evidence.

In addition, in all cases where warrants are sent to the Garda Síochána for backing, the British Attorney General will send a confirmatory note to the Irish Attorney General stating that he is satisfied that the relevant prosecuting authorities have complied with those arrangements in relation to each offence to which the warrant relates. Those involved are the Crown Prosecution Service in England and Wales, the Director of Public Prosecutions in Northern Ireland and the Lord Advocate in Scotland. I do not think they could properly be described as simply administrative officers, they have a more substantial function than a purely administrative one and if those officers are satisfied, on the basis of what has been presented to them, that there is a sufficiency of admissible evidence to ground a prosecution, that constitutes a very serious view which is adequate for us to accept the case they put before us.

Would it be constitutional?

In what way would it be unconstitutional?

Would it be constitutional——

Is the Deputy referring to this country or the UK?

Here, of course. I am not too concerned about the UK as they can look after themselves.

It would be constitutional in both cases.

Would it be constitutional for people to be extradited in that way on the direction of the British Director of Public Prosecutions?

It is at the request of——

Should the court here not be involved?

It is a system built on the reciprocal backing of warrants procedure which has been in existence in this country since the foundation of the State. That was reinforced by the 1965 Act and will be continued with these further assurances as to the sufficiency of case. There is no doubt that it is constitutional both here and in the UK.

Is this arrangement official?

It is a non-statutory arrangement because I understand the concerns that any country must have in relation to any person whose extradition is requested from that country. We arrived at that arrangement taking account of the existence of the present procedure under the 1965 Act and of the obligations which we entered into in adopting that Act and, among other things, of ratifying the European Convention on Extradition. It is a system which fits quite properly and without any difficulty into that.

Would that be an agreement or understanding which has not been committed to writing?

It is a separate agreement between two Governments and there is no question, therefore, of "slot machine" extradition here. The House will see that this is a matter which is properly constituted, investigated and backed up on the requesting authority's side. The arrangement is reciprocal. It has been and will continue to be, the position here that when we send a request to the UK for somebody to be extradited here, each case is scrutinised by our Director of Public Prosecutions so that we are in a position to state that we have satisfied ourselves that there is good cause to accede to the request.

The member states of the Council of Europe who are co-signatories to the Convention on Extradition and intend to ratify the Convention on the Suppression of Terrorism, have adopted as their common view that the essential principle is that justice should be administered and trials take place in the country where the offence was committed.

Mr. Cowen

If justice is capable of being administered.

We will come to that. This is the essential principle which all those countries have adopted and which we have accepted since 1965.

Would this arrangement apply to other countries?

This applies to Ireland and the UK only because, in conformity with the Convention on Extradition, we have a separate, specific arrangement with the UK. Deputy Taylor asked, quite reasonably, how we could be sure that other jurisdictions will not engage in "fishing expeditions". In order to ensure that this does not happen, we adopted the arrangement in relation to the UK and indeed "fishing expeditions" could not have been very far from the minds of those who framed the European Convention on Extradition.

Deputy Blaney made a most eccentric intervention, most of it not germane to the amendment. However, one of the points he raised deserves a comment. Extradition to the UK does not involve dispensing with the requirement for a committal hearing. Extradition to the UK or the reciprocal backing of warrants delivers a person to the UK jurisdiction and that person must go through all the steps required in the UK jurisdiction, which include a preliminary committal hearing. There is no sense in which it can be said that the arrangements in operation — which will continue when the Bill is enacted — will in any way dispense with that kind of preliminary examination. It is not sufficient — there is no doubt about this — for a supergrass or a police officer to make a request to bring about the extradition of a person from this jurisdiction. Most of what Deputy Blaney said was a speech which he would have liked to make instead of a comment on the amendment or the Bill.

Mr. Cowen

Could a higher legal officer seek extradition on the basis of the evidence of a supergrass?

I have just told the House that higher legal officers would seek a warrant for the return of a fugitive only where they are satisfied that there is a clear probability of a prosecution founded on a sufficiency of admissible evidence. That is an unambiguous statement, the terms of which cannot be contested.

Could the Minister please repeat that?

A warrant for the return of a fugitive would be sought only where the Crown Prosecution Service in England and Wales, or the Director of Public Prosecutions in Northern Ireland, is satisfied that there is a clear probability of a prosecution founded on a sufficiency of admissible evidence.

Mr. Cowen

Would the evidence of a supergrass be permissible?

Deputy O'Malley rose.

It is difficult to have a debate conducted by question and answer——

It is appropriate on this Stage.

I do not intend to make a long speech——

Mr. Cowen

It is not argumentative——

——but I thought it might be useful if I intervened at this point to address some of the questions which have been raised so far. Unless I am grossly mistaken——


If Deputies intervene the Minister will have to reply.

I am allowed to intervene on Committee Stage.

Mr. Cowen

These interventions are not argumentative or out of order. This is very intricate legislation. Earlier the Minister in reply to previous submissions gave his reasons for not accepting the amendment and it was incumbent on me to go to the office to reread his speech. I could have interjected quite——

It is not satisfactory to conduct a debate——

Mr. Cowen

It is very difficult to follow the Minister's convoluted argument.

I am sorry but I have to navigate between the Scylla of Deputy Cowen who does not want to follow a convoluted argument and the Charybdis of Deputy O'Malley who does not want me to make a long speech, but I will do the best I can.

I do not mind the Minister so much, but the others——

I am happy to say I agree entirely with the sentiment Deputy O'Malley has just expressed, but we will say no more about that.

If the Minister answered some of my questions it might be more appropriate.

Deputy Woods quoted a statement by Mr. Prior. I can assure Deputy Woods that there is no question of our agreeing in any shape or form to extradition purely for the purpose of questioning. That is not what we intend to bring about. That is not the system that is envisaged in this Bill, nor is it the situation that is envisaged under the arrangements that have been, and I repeat it, in operation since 1965.

Is the Minister saying that the situation has changed?

I am saying that I take no responsibility whatsoever for what Mr. Prior may or may not have said on whatever date, but the system as it operates——

In The Irish Times——

I must get control of this debate and I am satisfied that it is impossible to carry on a debate with a Deputy on his feet making a speech and having questions put to him every few sentences. That is just not on.

On a point of order.

If it is a point of order.

It is. I have taken part in various Committee Stage debates, as have other Members, and there was never any objection to asking simple questions at the appropriate time. This meant that at any moment the Minister would have an opportunity to answer a specific point and then we would move to the next point.

Since he stood up, the Minister has been having questions put to him. Even if he were prepared to answer them, that is not the way to conduct a debate. The only difference between a Committee Stage debate and the Second Reading of a Bill is that on Second Stage a Deputy may only speak once, with the exception of the Deputy who introduces the Bill and may conclude, whereas on Committee Stage Deputies may speak as often as they wish but it still must be an orderly contribution without interruption.

Deputy Woods, having got reconfirmation from me that there has been no case of extradition to Council of Europe countries since 1965, did not seem to get the real meaning, which is that the proposal for a prima facie procedure would be relevant only in the case of extradition to Northern Ireland or to Britain. This is where the points I made earlier this evening and on Second Stage about citizenship comes in. If we were to say we will not extradite citizens, that would mean that there would be no extradition virtually to Northern Ireland or the United Kingdom.

Deputy Woods referred today and on Second Stage to the Criminal Law (Jurisdiction) Act, 1976, and attempted to suggest that in some way this Act has been left aside since 1982. He seems to draw some kind of conclusion from the fact that apparently under Fianna Fáil Governments people were dealt with under this Act and they have not been dealt with under this Act in the last couple of years. I suggest that Deputy Woods look back again at that legislation and all that it does and he should also look at the procedure that is in operation under the 1965 Act because it is not the Government of the requested jurisdiction that starts any procedure under that Act, it is the requesting State. I would find it a most extraordinary suggestion, or perhaps even admission, on Deputy Wood's part if he were actually saying to the House that a previous Fianna Fáil Government up to the middle of 1981 conspired or acted in such a way as to provoke the application of this Act, because it is not in the hands of the requested Government, it has to be started by another jurisdiction making the request. Whatever conclusion Deputy Woods thinks he can draw from the figures in relation to the conduct of Government, I think he must be just plain wrong unless he is saying that a former Administration did something very dubious indeed. I do not believe that is what he is saying. He just got the wrong end of the stick.

This subject merits a more serious contribution from the Minister.

That is a very serious contribution——

The Minister is twisting my words.

——and if I thought for a moment that he was suggesting something else, I would have a different reaction, but I do not think that is what he is saying. I think Deputy Woods is using a nice little argument of circumstance to make a debating point that is not relevant to the issues before us.

Deputy Woods also asks, if a requirement for a prima facie case would not have made any difference in the number of cases I referred to earlier, how that would make this country a haven for terrorists or a place where it was less difficult for criminals to evade justice. The Deputy should think a bit longer before he asks that question because I said that in those particular cases there was in fact prima facie evidence and had we had that requirement, those people would still have been extradited. That does not say anything about the fact that in other cases it would produce an obstacle. I intend to read a little more of what Deputy Woods was putting before us as British wisdom on the matter because his quotations from the Command Paper and the White Paper were selective, to say the least, although it may be that he was not given the full picture.

As regards what has been happening about extradition, I would like to give the House a few figures. The number of persons returned to this country each year from 1982 on were as follows: from England, in 1982, 21; in 1983, 26; in 1984, 43; in 1985, 27; and in 1986, to date, 12. The numbers who returned here from Northern Ireland in those same years were: 1982, seven; 1983, five; 1984, seven; 1985, one and 1986 to date, five. I note the years and I am drawing no conclusion whatsoever about the numbers that were returned in any year when a given Government were in office. We made requests and those people were returned to our jurisdiction on foot of the procedure now in operation under the Extradition Act, 1965, and reciprocally in the UK during that period.

In the period 1982 to 1986 we requested the return of 170 people. Under the procedures in force 129 people were returned. In the same period we requested the return of 35 people from Northern Ireland; 25 were returned and four or five others opted to return here while on bail. In the last five to six years — exact information on other countries is difficult to come by — about eight people have been returned to us from other countries. I give those statistics to bring to the attention of the House that the system we operate, and that will continue to operate after the enactment of this Bill, is a reciprocal system and one which we use as well as other jurisdictions.

It has been proposed that in order to try to give effect to the amendment before us we should denounce the 1957 convention and re-ratify it, making some kind of a reservation or qualification. That would be an extraordinary procedure. I think it would rightly be regarded by our partner countries as an immensely cynical manoeuvre. I would not recommend it because I do not believe we need to change the procedures in that way. It is certainly not the kind of manoeuvre that would commend us as serious people to other countries with which we have dealings, countries in relation to whom we request extradition from time to time.

Deputy Woods referred to the UK White Paper and to the Home Secretary's powers proposed under the draft legislation put forward — to withhold extradition in any case in which he considers it appropriate. Deputy Woods seemed to think that this showed a much stronger concern on the part of the UK authorities with its citizens than is the case here. He is looking at only one side of the picture. The corresponding power is vested in the Minister for Justice here, together with the courts, by section 50 of the Extradition Act, 1965. If I remember correctly, it is that power of the Minister referred to in the Bill that seemed to give Deputy Woods a great deal of worry on Second Stage. He seemed to be under the impression that the Minister for Justice, under this Bill, was taking onto himself some new and comprehensive powers of which Deputy Woods was highly suspicious. It now turns out that what Deputy Woods finds entirely laudable in the UK legislation he has overlooked in ours. I do not know why that Part of the Act and of the UK proposals should be trotted out here as something novel. As I said, it is part of a reciprocal procedure.

It is perfectly legitimate and is the objective of this Bill to bring more clarity and certainty into the law in relation to the scope of the political defence. That is what this Bill is all about. Since we are on this amendment, I do not intend to go into that at any great length. Deputy Woods quoted from, UK publications. For example, he quoted from Command Paper 9421 on Extradition of February 1985 a section which deals with the case for retaining the prima facie requirement. It is a very interesting paper. There is a section entitled The Case for Discarding the Requirement. I do not know whether that part was brought to Deputy Woods' attention but there are some very interesting things in it. It states:

The case against the requirement arises mainly from the concern that it may have the effect of enabling some criminals who take refuge in the United Kingdom to escape justice. The existence of the requirement, together with our rules governing the admissibility of evidence, is regarded as constituting a significant obstacle to extradition from this country. It is a fact that many countries, including those European states with which our extradition traffic is heaviest, find it difficult to meet this requirement — even in cases in which they claim there would be ample evidence to secure the fugitive's conviction in their own courts.

I do not intend to read it all. I admit immediately that I will be somewhat selective in reading from it. I am sure the House will have access to this document and will find that my selection is a little more representative than that of Deputy Woods. Another selection states:

It should, in principle, be for the requesting state to judge the sufficiency of the evidence for a trial of the fugitive. Moreover the requirement——

that is, the prima facie requirement

——confers on the fugitive a right which he would not have had if he had been arrested in the requesting state before flight, and which any associate who has not fled will not receive.

The case for and against was examined fairly comprehensively. The conclusion that was arrived at by the time the White Paper entitled Criminal Justice Plans for Legislation, Command 9658 of March 1986, was published, there having been a process of comment and examination of submissions in relation to the previous Green Paper, was that the prima facie requirement should be deleted from UK legislation. It is quite instructive to find that a number of the concerns set out in the examination of the case for and against the prima facie requirement are very similar to points that have been made here.

Deputy Woods read a section from the White Paper. I would like to invite the House's attention to what follows on that. It states:

The question of whether the prima facie requirement should be discarded was discussed in paragraphs 2.1 — 2.13 of the Green Paper. Having considered carefully the responses on this question, the Government believes that the prima facie requirement should be abolished. The requirement does not offer a necessary safeguard for the person sought by the requesting state; it does, however, present a formidable impediment to entirely proper and legitimate extradition requests. There are other effective ways in which the rights of the fugitive are protected — for example, by the double criminality rule and by the proper application of the political safeguard.

That seems to be germane to the debate we are having. I would not normally read that into the record of the House were it not for the fact that Deputy Woods quoted sections that seemed to point to conclusions that are different from mine.

Why did the Minister not read the next sentence?

According to that White Paper it is also the Government's intention to preserve the Secretary of State's overriding discretion to withhold extradition and this enables him to refuse his consent in cases where it seems to him that it would not be in the interests of justice to allow a person to be extradited. I should like to remind the House that the mirror image of that provision is to be found in our 1965 legislation. It will continue in force after the enactment of the Bill because I am not proposing to change it. The only place where it arises in the Bill, where Deputy Woods seemed to find fault with it, was a necessary reference to the fact that the provision is in our 1965 legislation.

A reference to some of the contents of the UK Bill was made by Deputy Woods but I do not intend to pursue it now because I have dealt adequately with the background.

What they put in the Bill is what they are going to do.

If the Deputy wishes I will say a few words about it. Deputy Woods referred to section 94 of the British Bill. The reference in that section to particulars of the facts upon which the accused person is accused or was convicted is not a requirement to produce evidence as Deputy Woods seemed to think. It is designed to ensure that there is enough information on which to apply the double criminality test for extradition. It is there to ensure that there is enough information so that the requesting jurisdiction can satisfy itself that the act of which the person is accused is an offence in the requesting State and is also an offence in its own jurisdiction. This principle of double criminality is an important one underlying extradition arrangements and that is why that provision is in the UK Bill, not for the reason Deputy Woods seemed to indicate.

The other provision in section 94 (3) of the British Bill about the Secretary of State being able to refuse authority to proceed with an extradition is a power that is similar to that granted to a Minister for Justice here by section 50 of the 1965 Act. The argument that Deputy Woods was making in which he seemed to think he was making a case for a prima facie requirement is in fact an exposition of the reasons why the UK is moving away from the prima facie requirement and why the UK believe that the kind of protection which we already have in our system are ones that produce, taking all things together, a better result in terms of a system for dealing with extradition.

I have listened to four and a half hours of debate on this topic and I must say that the Minister and Deputy Woods have between them the ability to make even an interesting and important topic extremely boring. They certainly succeeded now because——

I am not bursting with laughter, I can assure the Deputy.

——it has got to the stage where it has got lost in myriads of unimportant detail. We have got away from the basic principles that should apply in relation to this matter. I listened carefully to the Minister when he replied earlier and I was glad to hear him again say much the same thing in his latest reply because it confirmed what I had in my notes of what he said earlier. I should like to make some comments on what the Minister said.

The Minister said that his basic reason for not accepting this amendment, and the associated amendments, was that any new requirement of this kind would be a move in the wrong direction and would be a move away from our neighbours. The requirement we are talking about is one for a prima facie case in relation to requests for extradition. Half our neighbours will not extradite their own citizens at all but we are offering to extradite our own citizens. We are offering to do it, as we are perfectly entitled to do — the Minister has not argued otherwise — on condition that if somebody wants to take one of our citizens away from this country he will have to show some reasonable level of evidence against such a citizen. How we are moving away from our neighhours in what they are prepared to do when we are far more generous with our citizens and more willing to give them away I cannot understand. The Minister has this ability to go on and on to the extent that people forget what we are talking about. This frightens me. I can see now in legal matters just how the Minister clouds the issue like some large octopus sending up squirts of black ink. It frightens me to think that for three and a half years that man did the same thing in economics.

At least the ink was black.

Economics is something that one cannot tie down to the same extent because there are not Acts on economics in the same way that there are legal Acts. The Minister got away with it in that area and it is even more dangerous there than it is in the legal field.

The Minister's point that this is a move in the wrong direction and away from our neighbours is ridiculous because most of our neighbours will not even go half the distance we go. As I pointed out on Second Stage, a lot of countries in Europe refuse to extradite their citizens under any circumstances and there are others who will only extradite people out of their jurisdiction, including three signatories of the 1957 Convention, provided a prima facie case is shown. They have been glossed over too because officially they do not exist; it does not suit the book here at the moment.

I dealt with those on Second Stage.

The Minister made the point that in practice the prima facie requirement cannot be operated under the convention and that the British are doing away with it. It appears that is more or less the be all and end all of it. When he was asked why it could not be operated he said that in practical terms, particularly under subsection (2) of our amendment, a person could not or should not be deprived of his right to question witnesses at the preliminary hearing. I do not have access to as much wisdom as the Minister has ready access to but I have been informed that there was a case reported in the Irish Law Times Reports for 1985, the name of which is, strangely enough, Sherry v. Wine, in which the Supreme Court here held that a defendand does not have the right to cross-examine witnesses at a committal hearing.

At a preliminary hearing?

Yes. The Minister has solemnly told us that it would be a grave injustice to deprive somebody whose extradition was being applied for here of that right but that person does not have that right. I cannot understand the Minister's reasoning, which is absolutely wrongly based, when he says that we would be doing wrong to people whose extradition is claimed from here if they did not have the right to examine witnesses and so on when we are giving them the right to have the evidence against them shown to them and allowing them and the district justice to read it. In accordance with what the Minister wants they will never know the evidence against them and the Minister thinks they should not know it. How can the Minister want to retain a system whereby persons sought to be extradited from here are never entitled to know the evidence against them and never see a statement of a witness against them but are being extradited on a warrant, on a slot machine basis which the Minister wants to retain? How can he say that the defendants are at a disadvantage here, when they can go through the signed statement of evidence and make submissions to the district justice?

An Irish defendant brought up here and sought to be sent for trial before an Irish court does not have the right to cross-examine witnesses. Why, therefore, should a defendant to be sent elsewhere have it? I never suggested that somebody being sent out of the jurisdiction should have such a right. My amendment makes it clear that in the case of extradition a witness cannot be brought. All a defendant can do is to operate on statements. Relying on statements for a district justice to decide whether there is a prima facie case is far better than simply relying on a warrant and some kind of certificate from the British Attorney General that the mechanics of the thing have been done properly — that is all it amounts to. The Minister's example is completely ill-founded and misconceived. He complained about the absence of a right that an Irish defendant would not have anyway.

There is a distinction of some significance between the amendment in Deputy Harney's and my name and that of Deputy Woods. Deputy Woods refers to evidence but our amendment refers only to statements. We deliberately confined it to statements because I do not think you can talk about evidence in an extradition application. When talking about evidence you may be talking about actually bringing people there and that is not feasible in many cases. Apart from statements, you are talking about bringing exhibits to court and that is not feasible in cases of extradition. One of the exhibits could be a motor car used for a car bomb. I do not see how you could bring that along to a foreign country. That is why we clearly confine the amendment to statements. It is not as advantageous to the defendant but at least it is practical.

Another error I respectfully submit that the Minister has made — he read it out two or three times because Deputy Taylor, who expressed some reasonable reservations about the Bill, asked him to repeat it, and he wrote it down — is that what will be required from the Lord Advocate in Scotland, the Attorney General in England or the DPP in Northern Ireland will be a clear probability of a prosecution based on a sufficiency of admissible evidence and that if that were there there would be certification. There is a world of a difference between evidence that will ground a prosecution and evidence that would satisfy a prima facie requirement for the return of somebody for trial and the sending of somebody abroad on extradition. I do not think the Minister knows that or understands the significance of the big gap there is between the two. He can take my word for it that there is a considerable difference. The kind of evidence needed to found a prosecution falls well short of the kind of evidence you would need to have somebody sent for trial. You could be quite justified in taking a prosecution on evidence that would fall short of that which a district justice might require in order to send somebody for trial.

Therefore, the Minister's reply on that point, and his assurances, are not of any value. Towards the end of his second reply he spoke of the undesirability of denunciation and reratification of the 1957 Convention. In my Second Stage speech I said how undesirable that was and that we should not do it that way. We do not have to do it that way. We have a way to do it under Article 6 of the 1957 Convention. What is proposed in this amendment does not conflict with our law, does not conflict with our practice and does not conflict with any of our international obligations.

I made those points to the Minister when I spoke first this afternoon and in his reply he did not refute any one of them. He has not refuted them in his second reply — they remain valid — that is the case. It does not conflict with any of our international obligations. It is perfectly evident that it does not because we would be within our international obligations if we said we will not extradite our citizens at all. It is not like the Minister. I have said already on Second Stage that it would be outrageous for us in our circumstances to say so; even though it appears to be all right for France and half of Europe to say it, it would be outrageous for us and I do not think we should do so. What we should do is opt for that halfway house which we can do without conflicting with our own law or our international obligations. I do not think any reasonable person can object to that. Nor has any reasonable case been advanced in this House that would cause anyone to feel that this is not the proper course to be followed.

In his original reply the Minister spoke of the importance of Part III of the 1965 Act which reflects our close ties with the United Kingdom. I have told him already — and he does not seem to understand its significance — that Part III is not something that was dreamed up in 1965. It is not, as the Minister has said, something that has existed since the foundation of the State. It existed long before the foundation of the State — that is where its weakness lies — because it was an internal procedure within the then, old, United Kingdom for moving people around within the sub-jurisdictions of the then United Kingdom. It is no longer appropriate where two sovereign independent countries are concerned. Their relationship should not be based on this slot machine methodology which is appropriate within a country but which is not appropriate as between two sovereign states. I would not care very much if there was a kind of slot machine system for moving people from Munster to Connacht or from Leinster to Munster; that is about how significant it was. That procedure was introduced here and in the remainder of the then United Kingdom in the 1870 and 1873 Acts. It is not appropriate today. The Minister should not try to hide behind it because it has as much significance as moving people from Munster to Connacht or vice versa. It means no more and should not be sought now to cover the relations that should exist between two sovereign independent states.

The Minister tells us that it would be invidious to change this backing of warrants system. I suggest to the Minister, with respect, that it would be invidious not to. The entire weight of the argument in this House today, in the media and elsewhere, is in favour of this sort of amendment, of doing what has been suggested here by speaker after speaker. There is almost nobody who agrees with the Minister. Hovering over all of this is not really the value, propriety or otherwise — with which I totally agree — of ratifying the 1977 Convention on the Suppression of Terrorism or of amending our extradition laws, as laws. What is hovering over all of this is that this is one small bargain in a much bigger scenario. The Irish Government are fearful that if they are seen not to deliver this particular portion of a much larger bargain, then other larger and more important things will not be delivered by those whose pressure is hovering over this and is causing it not to be amended.

I would remind the Minister that those reasons may well be short term ones. We would be very foolish to leave our law in a very unsatisfactory state simply because there were overriding or compelling reasons of State, in the Government's view, to make us do something we knew was wrong because the external pressure on us was too great. One cannot but get bad law from such an exercise. The Minister should recognise that and ensure that he and this House do their duty which is, first, to ensure that the law is right and reasonable and, second, that we do not enact law for a purpose which has nothing to do with this Bill, which may be worthy in its own way in a different context, but which should not be used as a lever on this Government and on this House to enact law that this House knows in its heart is not right.

Deputy Harte when contributing earlier was making the point that there was an element of playing politics involved in this, that it is about getting votes and matters of that nature. It may be that the issue that is involved here involves vote-getting in the Donegal constituency. I suppose it has major influence there. Certainly that would not pertain in my constituency in Dublin.

I see this Bill from the point of view of a backbencher in this House. I look at it for what it is and on its merits. I try to do the best I can with it on that basis and make comments on it fairly as I see them. That is the task allotted me as a backbencher.

The point has been made that essentially the Bill is not new, that it involves no major variation of the warrant-backing procedure and the special position we have had with the United Kingdom for a very long time now. That is partially true only. There are new provisions in the Bill, some of which I welcome and very strongly support. For example, there is the cutting back on the concept of what would be regarded as a political offence and consequently not the subject of extradition and so on. That is very necessary and, if anything, long overdue in our legislation.

Deputy Harte also said he would find it objectionable that anybody who was wanted in Northern Ireland for serious crime — murder and so on — should walk free in this jurisdiction. I agree with that 100 per cent. That is absolutely right, provided that that is the person, that there is a base for saying that that is the person. There has to be some formality involved in an extradition exercise. I suppose everybody would agree with that. For example, nobody would suggest that a telephone call ought to be sufficient or that one would send a letter saying: right, send over Mr. So and So, he has committed an offence and is wanted. There has to be a certain degree of formality and the case must be examined in some form in some location. I would think that that ought to be a judicial decision, not an administrative one, that it should be a decision taken by a judicial officer. I say that irrespective of how high up the ladder, how senior, the administrative officer concerned might be. Whether he be a senior or junior does not affect the nature of the decision he makes in initiating an extradition procedure. There are some administrative officers who occupy very high posts. The Minister himself is an administrator and occupies a very high post, although admittedly he does take some judicial decisions also in the course of his work. One has to determine whether a decision to seek an extradition from a requesting State should be done by an administrative officer or by a judicial officer.

The second point that has to be determined is whether the officer concerned, whether he be administrative or judicial, should be in the requesting State or come for final decision in the receiving State, that is to say, this country. What we are faced with here is in a sense, the worst of both worlds. First, it is an administrative decision and, second, it is in the requesting State. I am still unhappy about the matter.

Reference was made to the fact that in the cases of the Birmingham Six, the Guildford Four and so on the probability is that not even one of them would have been affected if the prima facie rule had been introduced. I agree with that, I take the view that none of those cases would have been helped had the prima facie rule been in operation here. I think they would all have been sent back even if the prima facie rule had been in operation here. However, I do not think that is an argument against having the prima facie rule in operation. If anything, it demonstrates how mild and modest a safeguard it is. I contend it would have been shown up to have been inadequate in some cases where it was necessary.

I do not think any of the people involved in the cases the Deputy referred to were extradited at all, so the point does not arise.

No, quite so, I know that. But the point was being made that, had we had the prima facie rule in operation at the time, they would have been extradited. The point was made that, in all probability, all of them would have been extradited. I accept that they all would, thereby showing that, as a safeguard, the prima facie rule, at best, is a very modest one. There could be much more stringent provisions suggested, for example, that contravening statements would be admissable from the defence and that the justice would have to decide which of them he would accept. One could have a much stronger test applied if one were so minded. Therefore, it is a very minor and modest suggestion; there is nothing extreme about it. Once those statements were submitted, saying that the particular offence had been committed, for practical purposes, that would be the end of the matter and the question of contravening evidence would not then arise. Therefore, it will be seen to be little enough in itself.

I asked the Minister to repeat the statement of the apparent agreement which has been arranged on this because it did contain the quotation I thought it did. I wanted to be sure about that and that is why I asked him to repeat it. I am troubled by it too because what it says is that the Director of Public Prosecutions. the Attorney General or whoever must be satisfied that there is a probability that there will be a prosecution. I really do not think that is good enough. I would have thought, before a requesting State or an officer such as a Director of Public Prosecutions or an Attorney General would decide to initiate this procedure, the test would have to have been rather higher than that — not just a probability that there would be a prosecution. I would have thought appropriate wording would have been that he would have determined or decided that on the evidence and statements before him there would be a prosecution. When a prosecuting authority is examining a case he looks at the papers, examines the evidence before him and decides whether he will prosecute. That is a certain point that passes in the investigation of criminal offences. At a certain point the officer concerned, be it the DPP or the Attorney General decides: right, the point has now been reached and I have to determine on a prosecution. One is at a less advanced stage than that when one says: I have decided that there is a probability that there will be a prosecution, in other words, probably there will be but there is still the possibility that there will not be.

Unless one has decided that the evidence available before one at this point warrants and has determined one to decide that one is prosecuting in this case, the degree of test there gives me some unease. I do not think it is sufficient to say that there is only a probability that there will be a prosecution. I could accept the fact that perhaps something new might transpire in the meantime which might change an officer's mind, which would alter the determination he would have formed to bring the prosecution. That would be perfectly understandable and acceptable. But anything short of saying that the officer concerned has examined the evidence and has decided that there will be a prosecution should not, in my view, be sufficient to warrant the bringing forward of an extradition procedure. This long-standing easy arrangement that we have with Britain arises out of a special relationship and so on, over the years but that is not necessarily a reason of itself for continuing it on. We have many of these relationships. Some of these, as we have seen in the old British Petty Sessions Act, recently have given rise to nothing but problems for us. If new arrangements are being entered into in this Bill before the House — a new dimension is being put into it such as these variations on political offences and so on — then the whole matter is open for review and all aspects of it should be examined.

I still find it hard to understand why the requirement for this modest protection is proving so difficult. It is only a very mild assurance. It will give no protection to any criminal who is wandering about here. Statements would have to be available in any case on the file of the Attorney General in London or the DPP or whoever, and he ought not to put in a request for an extradition unless he has on his file signed statements from witnesses showning at the very least that there is a prima facie case, never mind overwhelming evidence. Therefore, why should he not send those statements over to Dublin to be shown to a district justice to assess and make the order on them? The statements are there. Where is the problem? I cannot see where the nub of the point is. For the life of me I do not see the difficulty. The statements are there, he looks at them and why should a judicial officer of this country, a district justice who is experienced and skilled in these matters and looks at statements on a regular basis in intending criminal prosecutions to decide whether there is a prima facie case, likewise not determine whether there is a statement there which could ground a prosecution; not in all probability but factually that there will be a basis to bring that prosecution?

Mr. Cowen

I would like to make a few points as a result of listening to this debate all evening. Earlier I made a point of order to the Ceann Comhairle. We have here a very complicated procedure concerning not simply a Bill but the 1957 convention and we must consider how we can implement the convention without derogating from our international responsibilities as the Minister probably sees them. The statistics which the Minister gave in his last intervention bear out that in practical terms the issues we are dealing with are related virtually entirely to extradition to Northern Ireland or to a much lesser extent to Britain. Indeed, in relation to the latter, the cases involved are almost all likely to be related to the problems in Northern Ireland and to involve Irish people. The Minister stated to that effect near the end of his Second Stage speech as reported in the Official Report of 4 December 1986, volume 370, column 1387.

Therefore, it is important to put into context what precisely is at issue. Unfortunately, during the day the debate becomes clouded as to what our obligations are to other countries which have signed the 1957 Convention on Extradition. Now we can deal only with the facts as we find them. Britain is not a signatory to that convention and we are trying to deal with this legislation on the basis of the facts, not on the basis of statements of intent and the measure of good faith of the British Government. One would have thought that our Government, having fallen into that trap last December on the Anglo-Irish Agreement, might consider seeing precisely what happens first before they place too much good faith on reforms in the administration of justice or whatever.

A forcible argument has been made that the insertion of a prima facie case would not mean, vis-à-vis, our extradition arrangements with Britain and Northern Ireland at the moment, that we are derogating in any way from existing conventions we have signed and, more important, existing conventions that Britain have not signed such as the 1957 convention. The Minister said today that he was “not prepared to start on the proposition that we are all in favour of extradition but...”. I am glad to hear that he is not prepared to start on that proposition because that is not the proposition on which he should start. The Extradition Act, section 14, reflects Article 6 of the 1957 convention which states that we are not in favour of extradition except as that Act prescribes. In view of the argument that has been put to him from all sides of the House, the Minister comes across as not alone not being prepared to go on the proposition that we are not in favour of extradition except in circumstances prescribed by law, or not being prepared to start on the proposition that we are all in favour of extradition “but”. In fact, his proposition seems to be that we are all in favour of extradition, full stop, and that that improved procedure in the 1965 Act should be continued as if nothing has changed since 1965. I am speaking in relation to the judicial relationship that we should have with Britain and Northern Ireland. A great deal has happened since 1965. In 1965 the British legal system was one which we could all look up to as the original common law system from which our own legal system had been developed, but that British system has now been brought into the greatest disrepute and there is shame on that system in view of the cases which have been explained and lobbied by Members of the House more eminent than I. On Second Stage, Deputy David Andrews outlined precisely the position in relation to those cases. In my inarticulate way I tried to set out on Second Stage that those cases changed completely and utterly the whole context in which this debate can be held. When the Minister says that in any of those cases there would have been extradition anyway, I am inclined to agree with him. Yes, there would have been extradition anyway, but he failed to follow up on that argument. He seems to discharge his responsibility by saying that on the face of it under the Extradition Act if there had been a prima facie case we would have extradited, therefore everything would be rosy in the garden. What he is forgetting about and has not addressed at all today is the question of the consequences to that legal system of extraditing. What has been pointed out as a basic principle which should underlie our extradition laws in this regard is that nobody should be returned for trial to another jurisdiction if he would not be so returned here if the offence had been committed here.

The second principle is that we are satisfied that the jurisdiction to which we are sending these people will be one in which they will get justice. Through the powerful medium of television we have evidence which suggests there has been a grave miscarriage of justice. Apart from trying to ensure that justice in England as it affects Irish people is properly administered, as of now there are cases in Britain where people who are innocent beyond doubt are languishing in British jails and the British judicial system does not seem to have the capacity to refer these cases to the Court of Appeal for retrial. Until we see the capacity of the British legal system to refer those matters for retrial, on what basis can we say that the British legal system will treat our citizens fairly, even on the basis of a prima facie case? We do not simply discharge our responsibilities by allowing extradition on the basis of a prima facie case. We must keep in mind the question whether the person will get a fair trial. Under the Criminal Law (Jurisdiction) Act, 1976, there is a mechanism whereby if we are not satisfied about sending a person to Britain or to Northern Ireland, we can try them here.

Until the outstanding cases are dealt with we are entitled to hold back on this. Statements of intent are no good. We have had statements of intent and Annie Maguire has had statements of intent both here and in Britain but the British legal system has not the capacity to refer these matters to the Court of Appeal. That is what is important. These cases stand out like a sore thumb in what was up to now one of the most respected legal systems in the world. Until these cases are dealt with, we will continue to have grave doubts about the propriety of sending anyone to Britain for trial. For too long we have placed our faith in what we had always believed would be fairminded British administration. The evidence does not hold up, nor does the evidence of the Anglo-Irish Agreement which was supposed to operate in relation to the fairness of the administration of justice in the Six Counties. When the Anglo-Irish Conference met on last Monday week sources close to the Government said, as reported in The Irish Times, that the Minister for Foreign Affairs at that meeting was going to use those cases as a quid pro quo, in relation to extradition charges here. However, that evening in Galway, the Taoiseach said there would not be amendments to the Extradition Bill and the following day Tom King was reported as saying that three judges in the Diplock courts was a non-starter. Who is codding whom? We did not have to wait for the British Prime Minister to tell us: the Taoiseach told us from Galway there would not be extradition charges before he could have heard what Tom King was saying about the Diplock courts.

I have suspicions about the motivation behind bringing this in, not simply because the Taoiseach going into the next general election wants to stand back and say "here is another area where I have shown my maturity by co-operating with the British Government on sensitive security matters", but because of what the Minister said here today when he said that he could not accept the amendments because they moved away from European norms making extradition much more difficult in practical terms but, more importantly, because it would amount to a public unambiguous declaration to the people of Northern Ireland and Britain that we are abandoning the Anglo-Irish Agreement and all that goes with it. That is an amazing statement. The Minister said the abandonment of the Anglo-Irish Agreement was what was involved in the amendments put forward by Deputy Woods. He did not mention the amendment put down by the Progressive Democrats although in effect it is the same as ours. Was that because they voted for the Anglo-Irish Agreement? The old ghosts are coming up again. That does not hold water.


Mr. Cowen

The Minister has now said that to accept this amendment, more importantly than anything else would point to an abandonment of the Anglo-Irish Agreement. The Minister's first responsibility is to our citizens and if somebody regards the Minister as abandoning the Anglo-Irish Agreement by protecting Irish citizens he should not be afraid to take that step because to protect Irish citizens is the Minister's duty. The Minister should not worry about the other people as they will look after themselves.

Nobody threw a teapot at me yet.


Mr. Cowen

You are a man of education and intelligence——


Mr. Cowen

The Minister's interjection was not worth his while.

I feel suitably chastened.

Would Deputy Cowen square the views he is offering on this Bill with the 1965 Extradition Act, introduced by Deputy Haughey?

Mr. Cowen

What is involved in our amendment and in the PD amendment is an amendment to section 22 of the Extradition Act, 1965. We are proposing this amendment in view of the lack of progress that has been made in relation to the people who are languishing in British prisons and because of the failure of the Anglo-Irish Agreement in relation to the administration of justice in Northern Ireland. It has been stated that to establish a prima facie case will not involve us in problems with any convention we have signed. One of the arguments put forward by the Minister today against this amendment related to the inadmissibility of evidence and the Minister gave an example in relation to the hearsay rule and the problems one would have if France were to seek extradition of an Irish citizen. That is a civil law jurisdiction operating under a different system. I do not know whether the Minister has a difficulty but on his own admission on Second Stage and on the basis of the figures provided in his last reply, at least 98 per cent of the cases are with our neighbours across the water and up the road. If the Minister has a difficulty about accepting a prima facie evidence requirement on the basis of the admissibility of evidence perhaps he could come up with a better example than the one he has given, as it has nothing to do with 98 per cent of cases we are talking about which relate to Britain and Northern Ireland.

The Minister accepts that the amendments raise legitimate concerns. I am glad the Minister has agreed that we do have legitimate concerns. One of these concerns is with regard to extradition merely for questioning. He said arrangements have been agreed, such as an examination at a high legal level to verify that there is in the opinion of the prosecuting authority concerned sufficient evidence of a kind admissible in court on which to base a charge. He said there was an understanding between the two Governments that an extradition request implies a clear expectation that court proceedings will normally follow and that together with the confirmatory note from the British Attorney General, the Advocate General in Scotland, or the DPP in Northern Ireland he will satisfy himself that the relevant prosecuting authority have complied with the arrangements he has described.

The reason why that is insufficient is because decent Irish people, not those who are ambiguous about violence or those who are half Provos, as a result of the recent publicity about the Birmingham Six and the Guildford Four, have lost a certain measure of confidence in the British legal system's fairness towards Irish defendants. That has been accentuated by the failure of the British Government to show a capacity to redress what are obvious wrongs against people languishing in British prisons. That is a fact of life whether you or I or the legal people accept it or not.

In these arrangements the Minister is proposing that the legal people at the highest level be satisfied. The DPP do not have to be satisfied with regard to those applications. Once their legal people are satisfied and these arrangements have been complied with we extradite. That will not allay fears and justice will not be seen to be done. Even with regard to extradition proceedings which have nothing to do with the fairness of the trial across the water, I am convinced that ordinary Irish people do not see that as sufficient because there is a very definite belief that if you bring it to the District Court and the district justice decides it, it will be accepted. The Minister can quote me cases where it will not be accepted but that is irrelevant. The point is the Minister will not convince people that the Attorney General in England will do what has to be done properly. I am not saying those people are politically involved, they are independent officers and have to be respected. For example, the DPP's office is often accused of political manoeuvrings. Sir Michael Havers was embroiled last week in a major problem in the House of Commons over the Wright affair. Therefore, he is involved in the political scene. He may be independent but he is involved.

People now see extradition as being part of the political process. The Minister sees it as that, he sees it as the most important aspect and said that to accept the amendment would be an abandonment of the Anglo-Irish Agreement. Under Bunreacht na hÉireann the judicial system is independent of political manoeuvrings, secret meetings and internal efforts at co-operation. The Minister has at his disposal a respected branch of Government who can decide these matters. We are not talking about the merits or demerits of whether the person is guilty or not, we are talking about people being satisfied that that man is going over to answer a charge he should go over to answer.

The Minister is under estimating the effect these arrangements will have. They will not allay the fears of people. It does not allay the fears of the ordinary man in the street that the British Attorney General is satisfied that the warrants were properly begun. I am sure that those prosecuting authorities were quite satisfied when they requested the extradition of Evelyn Glenholmes, which unfortunately did not work out for them, and I am sure they were satisfied in the Quinn case, when he had no case to answer at all. The Minister in his Second Stage speech mentioned that he was getting over the problem of technical defects in the warrants and there was now a measure of co-operation to ensure that that does not happen again.

Just because you have dealt with that case does not mean that everything is rosy in the garden and it will not happen again. People hope that a debacle such as that will not happen again but what they are interested in seeing is that the request will be seen as having been independently adjudicated upon. Because it is a sensitive issue and because of the experiences of the Birmingham Six and the Guildford Four, people have major concerns about the efficacy of the British judicial system. The Government should recognise those reservations particularly in view of the fact that to establish a prima facie case will not go against their obligations under the Convention and international law.

The thrust of the Minister's argument is that it would go against the European norms but as our relationships with both Britain and Northern Ireland are very sensitive they must be seen to be dealt with fairly by independent people. The district justice is the man to do that job and no one else. Even if the Minister were to say that the DPP was satisfied that the warrant was properly grounded it will not satisfy Joe Soap in the street because of the secrecy and confidentiality and because it is not subject to judicial review in this country. If the Minister has difficulties about inserting the prima facie rule I think he can get over them if he has the will to do so. The Minister's first obligation is to the Irish citizen. Everything else must follow from that.

The thrust of the Minister's argument has been that these things are now in place. I am not saying there never was extradition before this Bill but the circumstances have changed substantially. If the Minister wants to maintain public confidence in this system of extradition by warrant he must show people that it works and is independently adjudicated upon. I have referred to several specific cases. If we had similar people languishing in our jails, would Britain enter into an extradition agreement with us without our having to establish a prima facie case? The British are among the best in the world for standing up for their own. Whatever else is said about Margaret Thatcher, she stands up for her own, whether she is right or wrong. Many Irish people would like to see us standing up for our own and going about things the right way. Presumably we will not have a vote before 11 p.m.

The Deputy can have it any time he likes. Is he worried?

Mr. Cowen

Let us not be flippant.

The Deputy nearly ran away with himself.

Mr. Cowen

The Minister is a man who moves around his constituency in the same way as the rest of us, or perhaps a little bit more in view of the forthcoming election. He should realise that a lot of ordinary people who know nothing about extradition have a sense of fairness and they do not see a sense of fairness in the British judicial system in the way it applies to Irish people. The Prevention of Terrorism Act always seems to apply to us and nobody else. They would like the Minister to make sure as a minimum safeguard that extradition warrants to Britain or Northern Ireland are independently adjudicated upon and extradition is not carried out simply at the behest of the prosecuting authority in the requesting state. That is all we are looking for. We would still be in compliance with international obligations. A forceful argument has been put to that effect.

The basis of the whole extradition law is in section 14 of the Extradition Act, 1967, which reflects Article 6 of the 1967 Convention. There should be no extradition except as we set it out. That is the basis of it, so let us set it out and protect our own people rather than simply acquiesce, as we have been too prone to do in recent years.

Deputy David Molony.

We have been listening to Second Stage speeches all night. We should be teasing out this Bill and finding out what is in the Minister's mind. I have been here for hours waiting to speak and you have called Deputy Molony.

Deputy Mac Giolla should not be so amazed. The invariable practice is to go from one side of the House to the other. Deputy Molony.

I will be brief at this stage but I hope to get another opportunity to speak later. I want to voice my feelings about the specific proposal that we extradite political offenders without any requirement that the applicant country — for all practical purposes we are talking about Britain — should have to establish a prima facie case. I do not like it. Over three years ago I first indicated that I was unhappy with the situation following what I regarded as a very desirable development in the thinking of the Supreme Court when they allowed that certain acts were of such a heinous, terrorist nature that they could not possibly be regarded as political. I felt it was appropriate that we should consider imposing the requirement that Britain should have to establish a prima facie case. Mr. McGlinchey was the first person extradited following that Supreme Court view. When I saw the evidence brought forward at his trial, although it has to be said that he was acquitted, I felt there were added arguments to support my view that Britain should have to establish a prima facie case in our courts.

I listened to as much of this debate as possible and I have pondered this matter very carefully. I want to make it absolutely clear that I will be voting with the Government on this issue. I am committed to doing so as a member of my party. I am offering my personal views now but I have no doubt about how I will be voting. I might say in passing that I regard it as obscene that some members of political parties sign pledges and seek to stand back on particular issues which are of interest to them, seeking to hold their party up to some form of ransom. I would not dream of doing that but I have troubled myself considerably over this measure.

I do not believe that this Government are seeking to do anything to deny Irish citizens any fundamental right and I reject Deputy Cowen's allegations that they seek to do so. I accept in good faith the argument offered by the Minister, namely that in the context of the Anglo-Irish Agreement there is reason for the Government taking this step. I also accept his good faith when he says that the general trend in Europe is away from the requirement that the applicant country should have to establish a prima facie case. I have to admit that I was somewhat surprised at that. I have listened to Deputy Woods and the Minister and it seems to me on the balance of what has been said to the House that the Minister's view is manifestly correct. The trend does appear to be away from that.

Having said all that, I am still troubled by this. Most of the people who have offered views to the House are more troubled by this measure at the moment because of the cases referred to by Deputy Andrews, Deputy O'Malley and Deputy Taylor. These are the cases which have on a number of occasions been the subject of major television inquiries. Of course the persons in jail as a result of convictions in what are known as the Guildford and Birmingham cases would not have been affected in any way by extradition provisions since none of them was extradited. But it is the case that there is grave disquiet, not just in this country but in Britain, about the capacity of the British judicial system to deal with cases like that. Regarding Irish people before a British court on terrorist/political type offences, it is really hard to believe, whatever about the present, that in the past such people received a fair trial. I completely understand the concern expressed on all sides of this House, given what we now know about these case. I have to say though that even if all of these people had been the subject of extradition applications in this country, and if there were a requirement that a prima facie case be established, there is no question about the fact that all of the persons involved would have been extradited.

Further, I am not convinced for a second that the proposal of Deputies O'Malley and Harney deals with the problem. It is quite clear from what we know about these cases now that senior people on the British investigation or prosecution side had to act in some improper way. There was no other way that one could square the information we now have about those cases with the evidence brought before the courts and marshalled, presumably, by quite senior people in very responsible positions in the British prosecution system. That is very serious.

However, I do not believe that problem is unique to the British system of justice. Deputy Cowen suggested that nobody was languishing in our jails who was put there wrongly. Frankly, I do not believe that either. I am quite certain that our system of prosecution has caused people to be convicted of crimes they have not committed. I am not going to detail all these cases as they have been detailed before. I specifically named the cases and gave details of them in this House on the occasion of the establishment of what was known afterwards as the Kerry Babies Tribunal. We should not hold ourselves apart as some great race of people above and beyond any question about our own prosecution and judicial system. I have no doubt but that many people have been convicted here since the establishment of the State who perhaps did not deserve to be convicted either on the evidence or on the basis of evidence that did not entirely square with the truth of the position or the truthful background to those cases. However, this is a different problem. I am not sure how we can overcome the distrust that has arisen in this country with the British system of justice because of the Guildford and Birmingham cases, but we have to bear in mind that imposing a requirement that the British would establish——

The Deputy should come back to the amendment occasionally.

I am doing that specifically. Imposing the requirement that the applicant country would have to establish a prima facie case would not solve that problem. I am not sure what would solve the problem. My view on this matter at the moment is that if in the context of the Anglo-Irish Agreement this can bring about the aims as set out in the joint communique, specifically improving the confidence of the public in the administration of justice, improving relations between the security forces in the North of Ireland and enhancing the co-operation between the two communities in the North of Ireland, it is worth while considering it.

I am glad the Minister indicated today that he proposed to amend. I think, section 12 of the Bill which would extend the opportunity for this Dáil to alter the Bill, or decide not to proceed with it until December of next year which, in effect, means that there must be a new Dáil that will do that. The step being taken by us is an important one and one that deserves the most positive of resposes from the British Government. If this section as proposed by the Minister passes, without the amendments by the Fianna Fáil and the Progressive Democrats Parties, this House and this country deserve a response from the British Government to show that they are prepared to come along the road with us.

Difficult as I find this proposal at present, I trust the judgment of the Taoiseach in matters of this nature. I believe that the Anglo-Irish Agreement was an agreement which no other Taoiseach that we have had would have brought about. I am talking now particularly about relations between Ireland and Britain and Ireland and the North of Ireland and the peoples of both communities in the North of Ireland, in saying that the Taoiseach's instincts in these matters are generally good and deserve to be followed. They are difficult to follow in this instance. I am just not convinced that the case put forward by Deputy O'Malley specifically would deal with some of the problems that we see with the British judicial system at the moment. As is quite clear, I shall not be a Member of the next Dáil but if there were not a very positive response from the British Government to this measure as proposed, I would certainly be among those who would advocate that the Bill not be proceeded with.

We have had a very long debate here and some of the contributions have been exceptionally long Second Stage ones. We have not really teased out from the Minister why he or the Government seemed to have in mind at the weekend that some amendment might be made, but he is stone-walling now and not a line will be changed. The whole discussion for the last five and a half hours has been on the basis of a prima facie case being made. I am not a legal person; I do not know what the procedure is for presenting a prima facie case in Irish law. I understand from the contributions that, presumably, you must produce a book of evidence and presumably there are witnesses present, because the Minister says that the witnesses can be cross-examined and so forth. Not one of these amendments mentions a prima facie case; not one mentions that a book of evidence should be produced; not one says that witnesses should be brought before the court. The amendments say that sufficient evidence be produced, signed statements of evidence be produced and in our case we are saying that what is in section 22 of the 1965 Act should be followed, that sufficient evidence be produced to satisfy the requirement in the provision. If there is no amendment whatever to the Bill, does that mean that section 22 of the 1965 Act will not apply to extradition proceedings taken under this Bill? Could the Minister say if that is so?

When I reply, I shall, yes.

It would not apply to proceedings under this Bill. All that would be required to insert in the Bill to ensure that the provisions of the 1965 Act would apply would be simply "require the production of the requesting country of evidence, any evidence, as to the commission by the person claimed of the offence for which extradition is requested". It does not say what kind of evidence, or how it would be produced, or anything of that nature, whether signed statements, witnesses, books of evidence or so on. It just mentions production of evidence. If that is in the extradition proceedings, then section 22 applies, which would mean that extradition would not then be granted unless sufficient evidence is produced to satisfy the requirement. That is all anyone is asking, that within this Bill there would be a requirement for production by the requesting country of evidence, any evidence, as to the commission by the person claimed of the offence for which extradition is sought. Surely the Minister does not intend to extradite people without any evidence whatsoever. That is the basis of all the contributions all evening. Deputy O'Malley called it the "slot machine" procedure. If no evidence is required what is the point of this debate? The matter might as well be settled by a telephone call. There should be a provision in the Bill requiring the production of evidence as to the commission of the offence. Surely no one would want to extradite anyone unless there was such evidence?

So many Acts have been quoted in this debate, from 1870 to the present that we may be in danger of not being able to see the wood for the trees. There may be shortcomings in the amendments but most people are anxious to ensure safeguards for people on trial in the UK. We are trying to enshrine such safeguards in the Bill. The Minister's replies have been framed in legal language and it is easy to lose sight of the main issue. In this Bill a major change is proposed in our law regarding extradition and all speakers have expressed concern in this regard. The Minister and the Government seem to be steadfastly against including any provisions in the Bill——

They are there since 1965.

I do not believe that adequate safeguards are provided in the Bill. The Bill represents a fundamental change in our attitude to extradition. We must accept that it is a major change, indeed during the last term of office of the Coalition from 1973-77 they refused to change the extradition requirements here and the quid pro quo in relation to the Sunningdale arrangement was the Criminal Law (Jurisdiction) Act, 1976. This Act contradicts the arguments the Government are putting forward in relation to prima facie evidence. The Act is seldom used but it provided for trying suspects in this jurisdiction for offences committed in another and also for the calling of witnesses to give evidence here. We are now going to the other extreme, no evidence will be required in this jurisdiction in order to extradite a person. The people are not satisfied that Irish nationals who are extradited to the Six Counties or the UK will get a fair trial. We all remember the cases which were mentioned tonight. I accept that the Minister wants to ensure that we play our part in the suppression of terrorism but the Bill goes too far.

The Minister said that unless this legialtion is enacted we would be out of step with the rest of our partners on the Council of Europe who are signatories to the 1977 convention. He further alleged that the convention does not allow for extradition. The Minister indicated that it would be impossible to introduce any changes in the Bill——

The Deputy has not been speaking about the amendments for some time.

The reason the amendments have been put down is that the people want our jurisdiction to have some say before a person is extradited. It is not too much to ask that there should be adequate safeguards in the Bill. The amendments, if accepted, would go some way in ensuring that such safeguards are provided. The Minister said earlier that there would be some arrangement regarding the authorities in Britain and the Six Counties which will be examined at a very high level. He said that those who examine the matter will have to be satisfied that a person has a case to answer if he is extradited. However, I am not satisfied with that provision, I am sure that in the cases which Mr. Stalker was investigating there was intense activity regarding the alleged offences. I am not satisfied that a person outside this jurisdiction can decide that there is a case to answer, I am concerned as to what happens in this State. The arrangement to which the Minister referred will merely be one between two Governments, it does not seem to have any legal function.

I do not know which authority will examine the extradition application or who will satisfy himself that these arrangements have been complied with. I believe it will be an ad hoc arrangement between two Governments and I am not satisfied with that. We should not make any apology for enshrining in our law what we consider to be the right way to go about this. The full judicial process should be gone through.

Progress reported: Committee to sit again.