Last night the Minister gave us a clear statement of the position he is taking in relation to the certification of warrants to be used for the extradition of Irish citizens. He said that the agreement 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 prosecution, founded on a sufficiency of admissible evidence. It seems that the arrangement the Minister is coming to, which probably is not of any great value because it is not a statutory arrangement, only an administrative arrangement, will have no statutory authority. Nevertheless, it is an arrangement that sets aside the authority of the Irish courts. That authority, in our view, should not be subsumed under the DPP in Northern Ireland or the Crown prosecution service in England and Wales. Both are prosecuting authorities, whose vested interest is in prosecuting. Surely in these circumstances the Government will be failing in their duty to vindicate the rights of Irish citizens through such an arrangement, because the courts here would be used only as a rubber stamp for the certification, or whatever one wishes to call it. The Minister called it that in a press releases but he is calling it something else now.
It seems very clear that the Government are ignoring their duty and setting aside their obligation to vindicate the rights of Irish citizens. I do not believe there is a political consensus in Ireland for that approach. I do not believe that even people in the Minister's party would support and endorse that approach if they were made fully aware of it. If this Bill had been given the time which a Bill of its importance requires, the Minister would have been advised by his own backbenchers and by learned and experienced members of his party that this is a foolish step and most inadvisable.
One would have thought the Minister would be a little wiser in the light of recent events. It has been pointed out clearly that these and similar functions are judicial and that it is not acceptable to have an administrative arrangement to cover them unless it is in line with the Constitution. In the Supreme Court on Friday last five Supreme Court judges sat — Judges Finlay, Walsh, Griffin, Hederman and McCarthy — and judgment was given by the Chief Justice in the case of the State, at the prosecution of Garda John Clarke as prosecutorversus District Justice Maura Roche and Peter Senezio, responding. The Chief Justice said:
I am satisfied that on the terms of section 10 of the 1851 Act it is an inescapable conclusion that the issue of a summons upon the making of a complaint was a judicial as distinct from an administrative act.
In other words, the issuing of a summons, whether for car parking or drunken driving, was a judicial function, and whatever may have been the position in the past the Minister now would need to make the appropriate changes to ensure that the judicial nature of this function is fully recognised. That must ring a warning bell with the Minister in relation to the actions he is taking on the extradition of Irish citizens. There is another very interesting case, Maherversus the Attorney General, 1973, reported in Irish Reports, 140:
The administration of justice which, in criminal matters, is confined exclusively by our Constitution to the courts and judges set up under the Constitution necessarily reserves to those courts and judges the determination of all the essential ingredients of any offence charged against an accused person. In so far as the statutory provision purports to remove such determination from the judges or the courts appointed and established under the Constitution, it is an invalid infringement of the judicial power.
That was the judgment given in Maherversus the Attorney General in 1973 and is very relevant to the steps the Minister is taking now.
In the case of the State — Lynchversus District Justice Ballagh — the Supreme Court held, among other things, in May 1986 that “the Garda Síochána, is not in any sense part of the judicial system nor does it participate in the exercise of the judicial powers of the District Court in its administration of justice.”
The Minister is proposing that there be some form of certification by the British authorities coming before the Garda Commissioner here and that, presumably, the Commissioner and the Attorney General — as the Minister mentioned in his remarks yesterday — would examine this case to ascertain whether there was a reasonable one to be answered. But, in putting forward this kind of scheme, in effect the Minister is proposing that prosecuting authorities here, however great may be their individual integrity, would be the people who would decide whether there was aprima facie kind of case or one which is the sort of case that these amendments seek to have written into the Bill. In so doing the Minister is in danger of running against the clear signal from the Supreme Court as recently as May 1986 in the case of the State — Lynch versus District Justice Ballagh. That judgment makes it very clear that “the Garda Síochána is not in any sense part of the judicial system nor does it participate in the exercise of the judicial powers of the District Court in its administration of justice”. The Minister is at least suggesting that some form of quasi-judicial function would be given to the Garda in this respect. In so far as that decision is in any way judicial surely it must be left to the courts. It would appear to be a matter properly within the confine of the courts.
Until March 1984 the power to send persons forward for trial was given to the Director of Public Prosecutions under section 62 of the Courts of Justice Act, 1936. That provision was amended by section 3 of the Prosecution of Offences Act, 1974, which power was exercisable where the district justice did not send a person forward for trial. Therefore, in a case where the district justice decided not to send a person forward for trial the Director of Public Prosecutions had an overriding power. In March 1984, in a judgment given by the then Chief Justice O'Higgins, the Supreme Court held that that power was unconstitutional because it gave to the Director of Public Prosecutions a power that was an invasion of the judicial demesne and an attempt to exercise the judicial power of the Government otherwise than by the organ of the State established for this purpose by the law. If such power in the hands of the Director of Public Prosecutions was seen to be unconstitutional, surely the giving of similar powers in relation to an extradition must also be unconstitutional. This is a matter to which the Minister would need to devote attention.
Again and again the courts have said that the exercise of judicial power is for the courts. In that respect, if there is to be a decision as to whether there is what is in effect aprima facie case against a person whose extradition is sought, it seems quite clear that that decision should be taken by the courts rather than by administrative or executive officers either here or in the requesting country.
Having listened to the Minister I am not convinced of his argument. The case made in favour of aprima facie case being presented before the courts is a strong one. I believe our amendment meets these requirements. I believe also that it is the least we should offer our citizens in the circumstances in which they may find themselves if there is a request made for an extradition.
Subsection (2) of our amendment says:
No order for the extradition of an Irish citizen shall be made unless the District Court is satisfied, on the evidence before it, that there is a sufficient case which would warrant the sending forward for trial of that person...
Deputy O'Malley points to the fact that, in his amendment, he talks about statements being laid before the court and that such would be adequate. He suggested that the inclusion of the words "on the evidence before it" would necessitate the production of witnesses. That is not the case; it merely leaves the District Court on the evidence, which would normally be the book of evidence and the written statements which are required to base a decision. Of course one could conceivably have a situation in which the District Court might not find the evidence before it reliable, or might question it. We have suggested, further down in our amendment, at subsection (3) (c):
A document served pursuant to paragraph (b) of this subsection shall be received in evidence without further proof if it purports to be signed or certified by a judge, magistrate or other judicial officer of the requesting country or place and to be authenticated by the oath of some witness.
One could contend that there could be certain circumstances in which the justice in the District Court might want to see something more. That would be a matter for the District Court. It would be a matter for the court to be satisfied on the evidence before it that there was a basis for the extradition of an Irish citizen. The Minister has pointed out that in most cases this would in effect be much the same as what would happen under his proposal. If so, why is he so reluctant to accept these amendments? We believe this is a reasonable proposal and nothing the Minister has said has changed our view. Since we are now reviewing the law in relation to extradition, this is the time to review it fully and properly and to build into our extradition laws the measures which we believe are appropriate. The provision about which I am speaking is one we believe to be essential and we will be pressing our amendment. It has been very well debated in the House in the time available, but the Minister's approach would appear to be settled above his head and consequently he is not prepared to accept any amendments. Therefore we will have to divide on the matter.
We have another amendment which deals with the question of fair trial and fair proceedings in the jurisdiction to which an Irish person would be taken on extradition. There will be an opportunity to discuss that aspect under that amendment. As far as theprima facie requirement is concerned, we stand by our amendment. We believe it is appropriate and right and we will be voting in favour of it.