I intend to respond in general terms to the main points which have been raised so far in the debate, some of which I will be going into in more detailed fashion when we examine the Bill on Committee Stage. First, however, I think it is worth recalling again the context in which this Bill has come before the House.
The Extradition (European Convention on the Suppression of Terrorism) Act, 1987, came into force this morning. This means that we are now in a position to ratify that Convention. The parties to the Convention have pledged themselves to counter the problem of international terrorism by facilitating the extradition of fugitives from justice who claim a spurious political justification for serious crimes of violence. In office and out of it Fianna Fáil have always acknowledged the need for international co-operation in the battle against terrorism. This is why we supported in principle the legislation enabling us to ratify the terrorism Convention when it came before this House last year. Our only difficulty with the legislation was that it did not address the safeguards issue to the extent that was necessary.
After some of the events of recent weeks, the problem of international terrorism is present in a particularly immediate and acute way in the minds of people in this country. The general feeling of revulsion against terrorism, which has always been there, has been intensified by these events and they have served to remind us that we are confronted with a grave problem in dealing with subversive violence.
We have all been shocked beyond words by the savagery shown in the John O'Grady kidnap and the Enniskillen bombing. Adding to the universal feeling of outrage at these events came the news that terrorist elements with international links have been actively seeking to build up a deadly arsenal of sophisticated weapons with which to maim and kill people on this island on a scale away beyond anything we have experienced up to now. The horrors of the past few weeks have served only to confirm our determination to deal with subversive violence.
As everybody knows, special policing and security measures have been taken in the aftermath of these events and are continuing. A massive search for arms and ammunition has taken place and a number of people are now before the courts on charges arising from finds that have been made. Searching will go on for some time yet. When the major search operation began I expressed confidence that members of the public who might be put to any inconvenience as a result of the search would understand what we were doing and why. I stressed that the operation was in the interests of each one of us and I asked the public to help in any way they could. The public have co-operated very well indeed and I want to express thanks to them for this co-operation.I confidently ask for a continuation of this co-operation. The Garda deserve it and have a right to expect it in carrying out the difficult and, as we have seen only too clearly, the dangerous job we have entrusted to them.
In his opening statement in this debate on Friday last the Taoiseach paid tribute to the courage, dedication and diligence of the Garda in dealing with the kidnapping and said he was confident that, as a result of their continuing search for him, the reputed leader of the kidnap group would be captured too. Later that same day he was apprenhended. In the course of the operation he was seriously injured, a man travelling with him was killed and an Army officer was injured, though I understand not seriously. It is regrettable that operations of this nature, involving our Garda and Army in the necessary use of gunfire should have to take place. Thankfully, they are fairly rare occurrences but it is a pity that they have to happen at all.
Nobody wants to see people killed or injured, to see innocent people put at risk and to witness then the grieving of relations and friends but no one can be allowed to take the law into his own hands. We jealously guard our tradition of having our police force unarmed but if and when the occasion demands it the Garda, backed up when necessary by our Army, can be relied upon to take whatever action is called for with courage and resolution. We are all deeply grateful to the Garda Síochána, and the Army, for bringing this difficult and dangerous operation to a successful conclusion.
Side-by-side with nationwide concern about the terrorist threat, we have had an unprecedented level of public interest in the issue of how Irish people might be treated before foreign courts, particularly in the wake of an atrocity that stirs people's passions and may affect their sense of fairness. This concern has arisen in the context of the appeal in the Birmingham Six case and the ongoing efforts to have the cases of the Maguire family and the Guildford Four reviewed.
This is the context in which today's Bill is set. There is a consensus throughout the country that we must play our part in the international struggle against terrorism.There is ongoing concern about cross-Border or Border-related subversive activity. At the same time the public are deeply anxious that the authorities here should be vigilant in their scrutiny of requests to surrender Irish people for trial in foreign jurisdictions. They want everything possible to be done to ensure that the treatment of an extradited person will not in any way be arbitrary or unfair. Irish people of every political persuasion — and none — are concerned about this matter. The Bill before us today reflects the widely held view in this country that existing safeguards in the matter of backing of warrants do not go far enough, especially in the context of the coming into operation of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987.
What this Government have done has been to listen to the concerns being voiced by the public and to take the appropriate action. We wanted to ensure that a person's extradition would not be sought merely for the purpose of getting enough evidence to charge him with the offence cited in the warrant or indeed some new charge. We have devised statutory arrangements to ensure that, at the time when a warrant is sent here for backing, there is a clear intention to prosecute him and that that intention is founded on the existence of sufficient evidence. We have also addressed our minds to the rule of specialty which is already in force in our arrangements with places other than Britain and Northern Ireland. The application of this rule ensures that a person's extradition for a particular offence is not followed by the bringing of additional charges against him for offences for which extradition would have been refused. The Bill also provides that a person's return may be refused where, by reason of lapse of time it would, having regard to all the circumstances, be unjust, oppressive or invidious to return him.
Our concern in drafting the provisions governing the issues of sufficiency of evidence and specialty has been to respond to the legitimate concern of many responsible people in this country that our extradition arrangements should protect the rights of the accused to the greatest possible extent. We wanted to do this without at the same time undermining the principle that those against whom there is a well-founded serious charge to answer should, where possible, come before the courts of the country in which the alleged offence occurred. There is a delicate balance to be struck between these two objectives. Nothing that I have heard in the debate so far has shaken my belief that we have got that balance right.
I come now to deal with the main points that have been raised in the debate. The debate has centred mainly on the provisions of section 2 of the Bill which relate to the functions which it is proposed to allocate the Attorney General. This is as it should be because that is the most important safeguard provided for in the Bill. Section 2 will provide a meaningful safeguard in the matter of sufficiency of evidence but will not suffer from the drawbacks that aprima facie requirement would involve. The Government have decided that the appropriate person to perform the function under section 2 is the Attorney General. A number of speakers queried this.
Article 30.1 of the Constitution provides that there will be an Attorney General "who shall be the adviser to the Government in matters of law and legal opinion". Some Deputies have sought to make much play of this provision in the Constitution, suggesting that the Attorney's role is confined to that of legal adviser to the Government. But that is not the Attorney's only function because the same Article of the Constitution goes on to state that he "shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by this Constitution or by law". The function which section 2 of this Bill confers on the Attorney General is one conferred by law in accordance with Article 30 of the Constitution.
It has always been accepted that the Attorney General is independent in the exercise of his functions. The leading work on the Office of the Attorney General in Ireland cites the following statement with approval:
in the discharge of his legal and discretionary duties the Attorney General is completely divorced from party political considerations and from any kind of political control.
The Minister for Social Welfare has already in the course of this debate referred to the statement by Mr. Justice Kingsmill Moore in McLoughlinv. Minister for Social Welfare that
the Attorney General is in no way the servant of the Government, but is put into an independent position. He is a great officer of State, with grave responsibilities of a quasi-judicial as well as of an executive nature.
Some Deputies referred to the fact that the Attorney is removable from office at will, as indicating that he would be subject to influence and pressure in the discharge of his functions under the Bill. That is not the way Mr. Justice Kingsmill Moore saw the matter. He said:
The provision for his voluntary or forced resignation seem to recognise that it may be his business to adopt a line antagonistic to the Government, and such a difference of opinion has to be resolved by his ceasing to hold the post... But while he is in office he holds, and if he is to do his duty and discharge his responsibilities must hold an independent position. He is specifically excluded from being a member of the Government, which again underlines his special position.
The kind of suggestions we have heard from some speakers in this debate about Attorneys General being subject to political pressure in relation to the exercise of their functions under this Bill are unworthy, are quite unwarranted and are out of keeping with the constitutional position.
In this context, Deputies will have noted the remarks of Deputy John Kelly on the radio last Friday on the question of the independence of the Attorney General. He said:
An Attorney General is not there to take orders on a day to day basis from the Government and I am not aware that any Attorney General ever has done so. He is an officer whose position is specified in the Constitution and he always has behaved as though he is conscious of that status. I do not think you need be afraid that if this Bill becomes law the Attorney General is going to be exerting his new statutory powers merely to accommodate himself to a shifting political wind. I do not think that is going to happen.
Deputy Kelly expressed similar sentiments in this House this morning.
We have also heard suggestions during the debate that the function which the Bill confers on the Attorney General ought more properly to be conferred on the Director of Public Prosecutions. It would be quite inappropriate to do this. The functions of the Director of Public Prosecutions relate to the prosecution of offences within this jurisdiction. He has no function in relation to extradition applications, whereas the Attorney General has. Responsibility for representation of the State in extradition cases in court rests with the Attorney General. He also has an important role, as matters stand, in relation to the vetting of warrants and accompanying documentation before warrants are endorsed by the Commissioner of the Garda Síochána.We are all aware of the kind of technical difficulties about warrants that have arisen in certain extradition cases. The Attorney General is directly concerned in a number of administrative measures that are being taken to reduce to the minimum the risk of extradition warrants and associated documentation being found by our courts to fail to meet the requirements of Irish law.
I would also point to the non-statutory arrangements on the sufficiency of evidence which the previous Government were proposing to participate in. These arrangements would involve the British Attorney General providing, through the diplomatic channel, a certificate to our Attorney General — the arrangement was to be on an "Attorney General to Attorney General" basis. The Attorney General in Britain is the Law Officer who would have ultimate responsibility on their side for arrangements there might be in the prosecution service to ensure that every extradition case is scrutinised for sufficiency of evidence. The appropriate law officer here to be in communication with the British Attorney General on this matter and to be given a statutory function with regard to it is clearly the Attorney General and not the Director of Public Prosecutions. The previous Government accepted that this was so when they were proposing purely administrative arrangements. Why should the position be different now that the safeguard on sufficiency of evidence is being strengthened by giving our Attorney General a strengthened rule and by putting it on a statutory basis?
Finally, conferring this function on the Attorney is consistent with the principle that has been maintained in other areas, namely that in criminal law matters which involve our relations with other countries, it is the Attorney General, not the Director of Public Prosecutions, who has responsibility. For example, it is the Attorney General and not the DPP who has the function of prosecuting for offences under the Fisheries (Amendment) Act, 1978. Similarly, the consent of the Attorney General is required for prosecutions under the Geneva Conventions Act, 1962, the Official Secrets Act, 1963, the Genocide Act, 1973 and the Criminal Law (Jurisdiction) Act, 1976. The reason that responsibility for prosecutions has been reserved to the Attorney General in all these areas is because of their international dimension. That dimension very obviously exists in the case of the present Bill too.
Deputies asked on what basis would the Attorney General form his opinion that there was a clear intention to prosecute and that that intention was founded on the existence of sufficient evidence.
The short answer to that question is that the new section 44B, which is to be inserted in the Extradition Act 1965, provides that the Attorney General will consider "such information as he deems appropriate".
In practice what that will mean is that it will be a matter for the Attorney General himself to decide in the light of each case, the nature and extent of the information which will be necessary, in the case, for the purpose of forming the opinion which is required by the Bill.
The Government are anxious that the new requirement should not act as an obstacle to legitimate extradition requests. What the Attorney General will be looking for is material which will enable him to form his opinion one way or the other as to the matters mentioned in the section. Obviously, it is not possible for me to say in advance what he will be requiring in any particular case. I am confident that the British authorities will co-operate to ensure that the provision operates successfully and with a minimum of complication.
Deputy Taylor and Deputy McDowell have suggested that the procedure proposed in section 2 will provide an inadequate safeguard because, as drafted, the section does not require that all warrants should be submitted by the Garda Commissioner to the Attorney General for his consideration. This is not so. In fact, the proposed sections 44A and 44B which section 2 inserts into the 1965 Act have been carefully drafted to ensure that the Attorney General will be required to form an opinion one way or the other in the case of all warrants to which this Bill relates.
Section 44A says that such a warrant shall not be endorsed if the Attorney General so directs. Section 44B then goes on to say that a direction of the Attorney General shall be given unless the Attorney General is of opinion, etc. This clearly places the Attorney General under a duty to form an opinion in relation to each warrant under the Bill. It is only if he is of opinion that there is a clear intention to prosecute etc., that he is entitled to decide not to give a direction. To enable the Attorney General to fulfil this duty, it will be necessary for the Garda Commissioner to refer every warrant covered by the Bill to the Attorney General. The Garda Commissioner will, of course, be obliged to do this in view of the very clear statutory requirements on the matter. As Deputy Kelly pointed out, the duty of the commissioner under section 43 of the 1965 Act to endorse a warrant is subject to the provisions of Part III of that Act and the new sections 44A and 44B will be included in Part III.
Deputies Barrett and Shatter also asked what "sufficient evidence" means in section 44B. It is quite clear from the terms of the section that it can refer only to sufficient evidence to found an intention to prosecute. There can be no question of it referring to evidence sufficient to establish guilt beyond reasonable doubt. Deputy Shatter asked what would happen if a person was extradited and subsequently acquitted. That, of course, would not reflect in any way on the opinion the Attorney General had formed in the case. As the Tánaiste has already pointed out, evidence to prove a case beyond reasonable doubt and evidence sufficient to found on intention to prosecute are altogether distinct concepts.
The new procedure involving the Attorney General's opinion has also been criticised from opposite points of view on the score of its being open to review by the courts. Deputy O'Malley was of the view that the most worrying feature of the Bill was that it had been drafted so as to attempt to exclude from judicial review the substance of the decision entrusted to the Attorney General. Deputy Barrett, on the other hand, was afraid that section 44C would cause enormous problems because it would involve the Attorney General being called to court to explain why he had not given a direction prohibiting the endorsement of a warrant and would have to indicate what the reasons were for his opinion.
The true position, of course, lies between these suggested extremes. The Bill does not seek to exclude the possibility that the court might review the Attorney General's decision. It would not be appropriate, and might well be unconstitutional, to seek to do that. It is properly a matter for the courts themselves to decide whether a decision of this kind should be reviewable and, if so, to what extent. Some executive acts which require the deciding authority to be "of opinion" as to certain matters have been held by the courts to be subject to review by them, while other such acts have been held not to be reviewable or to be so on relatively narrow grounds only. It seems to depend in part on the nature of the act in question.
The Bill does not, therefore, seek to exclude the possibility of review. What it does is try to ensure that, if somebody wants to put the question of a direction by the Attorney at issue in extradition proceedings, the onus will be on him to show that a direction was given or ought to have been given. It will not be open to somebody to simply make an assertion to that effect in court and thereby put the State on proof that a direction was not given and ought not to be given. That is the effect of section 44C. It is a reasonable and acceptable application of the principle that he who asserts must prove.
The other thing the Bill does is that it reserves judicial review of the Attorney General's decision to the forum where such review of executive or administrative action normally takes place, namely, the High Court. That is the intention of section 2 (1) (c) of the Bill which provides that in any proceedings in the District Court in relation to a warrant to which the Bill relates, it shall not be necessary to prove that a direction of the Attorney General was not given or required to be given. This will mean that it will be possible to raise an issue about the Attorney General's direction only in the High Court.
It has also been suggested that the functions which the Attorney General will be required to perform under section 2 are essentially judicial in nature. The implication appears to be that section 2 is therefore unconstitutional because it empowers the Attorney General to take decisions as to people's rights and liabilities and, therefore, amounts to a usurpation of the functions of the courts to administer justice. But the fact that a statute empowers the Attorney General to take a decision that will affect the right of a person to take some legal proceedings, or his liability to such proceedings, does not mean that the statute empowers him to determine the issue in the legal proceedings. It is not as if it were empowering him to try a criminal or civil case.
Essentially what section 2 requires the Attorney General to do is to form an opinion as to two matters — that there is an intention to prosecute and that that intention is based on the existence of sufficient evidence. For the purpose of future requests from Northern Ireland and Britain, it will be necessary for the Attorney General to form that opinion before a warrant may be endorsed and the processes of our legal system set in motion. The formation of that opinion will be a necessary preliminary step to the initiation of the extradition process. In no sense will the Attorney General be deciding that the offence for which the person is sought is an extraditable offence. That will remain a matter for our courts and, in certain limited circumstances set out in the 1965 Act, for me as Minister for Justice. Nor will the Attorney General in any sense be deciding that the person sought should be committed for trial. That will remain a matter for the courts of the requesting jurisdiction in the event that the person is extradited. Those are not the purposes of the procedure.
Rather its purpose is to ensure that there has been adequate scrutiny of evidence on the other side, reflecting the principle which underlies extradition. The principle was stated in the Supreme Court in the Shannonversus Fanning case as being that extradition must be bona fide, that is, for the purpose of putting the person on trial on the basis that there is already sufficient evidence to put him on trial. Proceedings which are not bona fide should not be permitted to go before the courts any more than the Attorney General or the Director of Public Prosecutions should bring a prosecution before our courts on a charge which was without sufficient supporting evidence.
There is no question, therefore, of any functions of the courts being usurped. Deputy Kelly, who is a leading authority on the Irish Constitution, has said that he feels the apprehensions about the involvement of the Attorney General are not well founded. He has referred to the case of McDonaldversus Bord na gCon, Costello's case, Shanahan's case and MacCurtain's case and has said that he thinks the functions proposed in the Bill do not correspond at any point to the description of a judicial function given in McDonald. He has dealt with these cases in a most authorative way and I do not propose to try to cover the same ground. However, I do want to take up some of the points that were made by some other speakers in support of the suggestion that the Attorney General's function would be a judicial one.
The new procedure we are introducing is an executive or administrative — not a judicial — procedure. A strong parallel exists, I would suggest, between the functions we are conferring on the Attorney General in this Bill and his functions in respect of certain prosecutions where his consent is necessary before a prosecution may be taken. I have already mentioned the Criminal Law (Jurisdiction) Act, 1976, and other statutes which require the authority of the Attorney General for a prosecution. These functions are not of a judicial nature. The decision of the Director of Public Prosecutions to institute or not to institute proceedings is not a judicial act either. That decision involves an evaluation of the strength of the case against a suspect. Why, then, should it be maintained that the function conferred on the Attorney by this Bill is judicial just because it involves his forming an opinion on whether there is a clear intention to prosecute, which is founded on sufficient evidence, on the part of prosecuting authorities in a foreign jurisdiction who are seeking a person's extradition from here?
Deputy O'Malley suggested that what was at issue in the Bill was different from a decision by the Director of Public Prosecutions to bring, or not to bring, a prosecution.He said that a decision as to whether a person should or should not be deprived of his liberty and surrendered into the hands of another sovereign power is a justiciable controversy. Of course it is and will continue to be but that decision will not be taken by the Attorney General. The formation of the opinion of the Attorney General under section 2 of the Bill will simply be a necessary preliminary step to the determination of that justiciable controversy by a court. The decision to extradite or not to extradite will remain one for the court, in the same way as the decision as to guilt or innocence in a prosecution remains one for the court after the DPP or the Attorney General has decided in the light of the available evidence that the case is one in which a prosecution should be brought. Is Deputy O'Malley suggesting that a decision by the DPP to prosecute somebody does not result in that person being deprived of his liberty, by way of arrest and remand, pending the determination by a court of the justiciable controversy that is involved in a criminal trial?
Another existing function of the Attorney General which I think is clearly in point is his function in relation to criminal appeals. Under section 29 of the Courts of Justice Act, 1924, no appeal lies from the Court of Criminal Appeal to the Supreme Court unless the Court of Criminal Appeal itself or the Attorney General or the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken. How can it be said that a decision affecting the availability of an appeal in individual cases to the highest court in the land is not a judicial function but that the forming of the Attorney's opinion under this Bill is?
Deputy O'Malley also indicated that the Attorney General's function under the Bill could not be less than judicial because in the Senezio case the issue of a summons by a District Court clerk was held to be a judicial act. He said that the very fact of a District Court clerk being supposed to make up his mind whether he should issue a summons was held to be judicial. But the fact of the matter is that in the Senezio case the Supreme Court was interpreting a specific statutory provision which conferred on district justices the function of receiving information or complaints. The court held that the issue of a summons upon the making of a complaint was a judicial as distinct from an administrative act but it did so upon the terms of section 10 of the Petty Sessions (Ireland) Act, 1851. Far from holding that the issue of a summons was inherently a judicial act, on the contrary the court held that there was nothing to prevent the provisions of the 1851 Act being replaced by statutory provisions which would provide for the procedure of issues of summonses being an administrative procedure only. That is what the Court (No. 3) Act, 1986, subsequently did.
Deputy O'Malley also said that the Attorney General's opinion would be essentially indistinguishable in character from the opinion which a district justice must form in a preliminary examination under the Criminal Procedure Act, 1967, that there is a sufficient case to put the accused on trial on indictment for an offence. The district justice's function under the 1967 Act, he said, has been found to be a judicial function, so how could it be argued the opinion of the Attorney General as to the sufficiency of the evidence in an extradition case is not a judicial evaluation? What the Bill provides for is something that will be a necessary procedural step in extradition proceedings, not a decision by the Attorney General that the person sought should be committed for trial in the requesting jurisdiction. As I have already said, that will be a matter for decision in the committal proceedings in the requesting jurisdiction if the person concerned is sent back. Even a requirement that aprima facie case be made out in a court here would not in fact amount to a decision to commit for trial.
A number of Deputies have suggested that the safeguards in the Bill as regards sufficiency of evidence is not enough and that we should go further and impose a requirement that aprima facie case be made out in our courts before a person could be extradited. The Labour Party, for example, now appears to want a prima facie requirement. Last December their position was quite different in that they were prepared to support the 1987 Act on the basis of an administrative arrangement under which assurances would be given by the British Attorney General as to the existence of an intention to prosecute, founded on a sufficiency of evidence. Their spokesman on legal affairs, Deputy Taylor, could not see then why there should be a difficulty in transferring the decision on this issue to an Irish legal officer. The decision he said, could rest with a senior legal officer who would be performing an administrative function, not a judicial function.
There is a compelling reason for not imposing aprima facie requirement — it would constitute an excessive restriction on extradition. The only country in Europe at present which in practice requires that a prima facie case be made out in court before granting extradition is Britain itself, which is not as yet a party to the Extradition Convention of 1957 and, of course, has never imposed this requirement in relation to extradition to Ireland. The British have found that their imposition of this requirement on other European countries is a substantial technical barrier to extradition, which some of these countries have found virtually impossible to meet. In recognition of this situation the British Government have brought forward legislation, which is now going through parliament to enable the prima facie requirement to be dispensed with.
Turning to our own situation, it would not be acceptable if we were to impose a requirement in our extradition law which would have the effect of causing considerable expense and delay in extradition proceedings and would result in the failure of legitimate requests. The suggestion being made by those who advocate aprima facie requirement seems to be that an extradition hearing in the District Court should be the equivalent of a preliminary examination in the case of an offence under our own law and that the wanted person should not be sent back unless it is shown that there is enough evidence to warrant his return for trial if the offence had been committed here. This would mean that the prosecuting authorities in a foreign jurisdiction would have to prepare, at short notice, a book of evidence which would comply with our laws of evidence. It would also mean, if the same level of protection were to be afforded as in an internal case, that witnesses from the foreign jurisdiction would have to be available to be examined upon their sworn depositions should they be called upon to do so. Can anybody seriously doubt that they would be called upon to do so in extradition cases? I am not satisfied that it would generally be possible for the authorities concerned to meet these requirements. We would face an unacceptable situation in this event where fugitives from justice would be able to treat this jurisdiction as a safe haven.
Deputy Mac Giolla has said that having aprima facie case does not necessarily mean that one has to bring over many witnesses and has said he understands that, in the normal domestic procedure where a prima facie case has been established in court on the documents in a preliminary examination, the district justice can and does refuse to order the attendance of witnesses where they are from outside the jurisdiction. But what guarantee would there be that this would be what would happen in an extradition case, where all the witnesses would be from outside the jurisdiction and the wanted person strongly challenged their written statements?
Deputy Mac Giolla also pointed out that one may have to have police presence in the normal extradition procedure anyway, in that a policeman may have to come to identify the person who is brought before the court. But that just serves to illustrate the problem very clearly. The practice Deputy Mac Giolla is referring to stems from the need to establish that the person before the court is the person named or described in the warrant. If the whole of the prosecution evidence in the case were to be in issue in the District Court, the possibilities for calling various witnesses, both police and others, would be greatly multiplied.
Deputies O'Malley and Kennedy have suggested that, to avoid such difficulties associated with aprima facie requirement, we should instead provide for something similar to the American concept of “probable cause” and simply seek an affidavit or statutory declaration from the requesting authorities which would contain a statement of facts, setting forth reasonable grounds for believing that an offence had been committed and that the person sought committed it. Deputy O'Malley said that the defendant could not in these circumstances have the right to seek to have the witnesses brought. However, he went on to say that the defendant could make a statement in open court that a part of the affidavit was untrue or not fully accurate or that he contested it. His legal representatives could contest or argue about the charges and he could let the public know via the press what his position was. If that was to be the case surely its only purpose would be to put the other side to further proof of the case against him. Otherwise doubts would be raised as to the case against the person without being resolved. Deputy O'Malley says that this system works without these difficulties in the United States. That may well be but can we be sure that the same would necessarily apply here. Introducing concepts from one legal system to another can run into difficulties because of differences in traditions, procedures, judicial approach and so on. I am far from being satisfied that this particular transplant would work satisfactorily and without undue complication in our system.
Ultimately the problem about theprime facie requirement is that in legal systems similar to ours it has tended to afford an excessive degree of protection to the accused. It has proved very difficult in practice to apply the requirement successfully when there is an external prosecuring system involved. To put it simply, it is the victims of crime committed by fugitives from justice whose rights would suffer if meritorious extradition applications were to fail because of such a requirement. I am very much afraid that any of the variations upon a prima facie requirement that we have heard advanced during this debate would be likely to suffer equally from such disadvantages in practice.
Besides, to require the production in court of an affidavit of the kind suggested would be out of keeping with the European Convention on Extradition. Article 12 of that convention specifies the documents whose production may be demanded in support of an extradition request and they do not include an affidavit of this kind.
I want to refer now to something which Deputy Mac Giolla said. He suggested that, as well as being concerned about people who may be extradited to Britian or Northern Ireland, we should also be concerned about the fate of those who may be extradited to other countries that are parties to the European Convention on the Suppression of Terrorism. Of course, we are concerned about all extradition cases. The fact of the matter is that the extradition arrangements we have with other European countries are different from those we have with our immediate neighbours. That is reflected in the more formalised extradition procedure provided for in Part II of the 1965 Act. Besides, in practical terms when we speak of extradition from the jurisdiction we are talking almost exclusively about extradition to Northern Ireland and Britain. There have been very few cases under Part II of the Act.
Deputy Mac Giolla's specific concern was that in some countries covered by Part II people might be jailed for their political beliefs. However, the principle of non-extradition for political offences properly so called will remain. Furthermore section 11 (2) of the 1965 Act provides an explicit safeguard against the eventuality about which Deputy Mac Giolla was concerned. It says that extradition shall not be granted if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion or that that person's position may be prejudiced for any of these reasons. One of the purposes of this provision — and of the corresponding provisions in sections 8 and 9 of the 1987 Act — is to safeguard the traditional right of asylum.
Between common law countries, whose jurisdiction in criminal law matters is generally territorial, there has never been a tradition of non-extradition of nationals. Extradition between this jurisdiction and Britain and Northern Ireland has accordingly always operated without any distinction on the basis of nationality.
This brings me to a point that was made by Deputy O'Malley. He suggested that Part III of the 1965 Extradition Act substantially re-enacted the arrangements set out in the Petty Sessions Act, 1851, and that the system of execution of warrants which Part III provides for is appropriate only to the internal movement of defendants within one jurisdiction. He said that in Part III we do not look on the United Kingdom as an independent foreign country at all but rather as some kind of associated jurisdiction with a common sovereignty.
The facts do not bear out this view of the position. The 1965 Act made vital changes in the system of backing of warrants that operated before then. Under the 1965 Act warrants are endorsed for execution by the Garda Commissioner but when a person is arrested he must be brought before the District Court before his return can be ordered. Before it makes an order the District Court satisfies itself that the procedure prescribed in Part III has been followed and must refuse to make an order if the offence in question does not correspond with any offence under the law of the State which is an indictable offence etc. After an order is made by the District Court the Act expressly requires that the person concerned must not be delivered up, except with his consent given before a district justice, until 15 days have expired from the date of the order. This allows him an opportunity to apply to the High Court to be released either on specific grounds provided for in section 50 or on any ground on whichhabeas corpus would normally be available.
There is no good basis for suggesting that this whole procedure is one which is not appropriate to an inter-state arrangement.To take just one facet of the procedure, who ever heard of non-return of a fugitive for a political, military or revenue offence within a common sovereignty area? Deputy O'Malley's comments are wide of the mark as regards the position that has obtained since Part III of the 1965 Act came into operation.
Part III provides for an extradition procedure — the Supreme Court has said as much. That extradition procedure is a simplified one: for instance, it does not involve the use of the diplomatic channel as Part II does. That procedure is a recognition of the immediate geographical proximity of the neighbouring jurisdictions, the close economic and social ties and the common travel area that have existed with them down the years and the fact that dual citizenship is fairly common among residents on either side. Special arrangements on extradition between neighbouring, independent jurisdictions are a recognised feature of international relations — they exist between the Nordic countries, for example.
I have dealt with what have seemed to me to be the points made in the debate that have most required a response. There were other points which were also deserving of a reply. To the leader of Fine Gael, Deputy Dukes, I say that I have listened closely to what he had to say about the amendments which his party will be proposing. At first sight, a number of these do not seem to present any undue difficulty, and I will consider them carefully when I see their actual content.
In regard to the suggestion about asking the President to refer the Bill to the Supreme Court, it is a matter for the President himself, in the exercise of his functions under the Constitution, to make such a reference. It is, of course, open to any group to express a wish for such a reference, and naturally if the President should decide to do so, I would have no objection whatsoever to such course.
With regard to comments made by the British Prime Minister in the House of Commons this afternoon, I do not accept her viewpoint that extradition will become more difficult because of our new safeguards. We do not anticipate that these safeguards will cause any difficulties that cannot be overcome. It is not correct to say that our protective measure for Irish citizens will make Great Britain the least favoured state in Europe. It must be remembered that there is a special arrangement for the backing of warrants already in existence.
In conclusion I want to say that I believe that the debate we have had on Second Stage of this Bill has been a credit to this Assembly. Members on all sides have given serious, reflective contributions on a complex subject which affects the liberty of the citizen and the need at the same time to bring terrorists to justice. The spotlight of public and international attention is on Dáil Éireann and its handling of the extradition safeguards issue. I am confident that the legislation which we are now enacting in this respect will work as it should and it will also reflect well on all the Members who took part in our deliberations on this subject.