I move: "That the Bill be now read a Second Time."
The purpose of this Bill is to amend the Extradition Acts, 1965 to 1987. The Bill clarifies and extends the range of offences not to be regarded as political offences for extradition purposes, centralises proceedings relating to extradition in the Dublin Metropolitan District Court, reserves decisions on the granting of bail in extradition cases to the High Court, and makes certain other changes, including technical changes, in extradition procedures.
I will put the Bill in context in regard to existing legislation on extradition. The Principal Act is the Extradition Act of 1965. Part II of that Act gives effect to the 1957 Council of Europe Convention on Extradition. It provides the basis for extradition between this country and most of the other Council of Europe member states. It also governs our extradition arrangements with certain other countries, such as the United States of America, with which we have extradition agreements. Part III of the Act relates to extradition between Ireland, on the one hand, and Northern Ireland, England and Wales, Scotland, the Isle of Man and the Channel Islands on the other.
In 1987 the 1965 Extradition Act was amended by two Acts. These were the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, and the Extradition (Amendment) Act, 1987. The first of the 1987 Acts is based on the European Convention on the Suppression of Terrorism. The most important aspect of that Act is that it restricts the circumstances in which a person can avoid extradition on the grounds that the offence in question is a political offence or an offence connected with a political offence. I shall be referring mainly to this Act in the course of my statement and will describe it as the "1987 Terrorism Act".
The second Extradition Act in 1987, the Extradition (Amendment) Act, 1987, contains important safeguards in relation to extradition to Great Britain or Northern Ireland. It gives the Attorney General power to veto a request for extradition unless he-she is satisfied (a) that there is a clear intention to prosecute or, as the case might be, to continue the prosecution of, the person named or described in the extradition warrant for the offence specified in the warrant, and (b) that the intention to prosecute is founded on the existence of sufficient evidence. It is important to stress that this Act remains in place and the very valuable protection it affords, therefore, also remains fully in place.
As the Bill proposes changes in the offences which may not be regarded as political for extradition purposes, it would be helpful if I gave some details on the background to the European Convention on the Suppression of Terrorism. The convention was an international move to combat terrorism. Briefly, it provides that certain terrorist offences are not to be regarded as political offences for the purpose of enabling the alleged offender to avoid extradition. This step was necessary because many countries, like our own, provide that extradition cannot be granted for an offence which is a political offence or an offence connected with a political offence. Our 1965 Act makes provision for that exemption. The move to take certain offences out of the political exempt category stemmed from horrific terrorist offences during the 1960s and the 1970s. Given the prevalence of terrorist attacks and the practice of their perpetrators to flee the country in which they had carried out the acts, the Council of Europe decided to deal with the problem at European level. It decided to draw up a convention, the underlying principle of which was that perpetrators of acts of terrorism should not be immune from extradition by pleading that the act they had committed was a political offence. We ratified the convention when we enacted the Extradition (European Convention on the Suppression of Terrorism) Act, 1987.
It is necessary to amend the 1987 Terrorism Act. In November 1991 in the cases Magee, Mckee and Sloan v. Culligan 1992 ILRM 187 and 194, the Supreme Court decided that the Act should be construed strictly and that possession of an M60 machine gun and ammunition with intent to endanger life could be a political offence. The cases gave rise to demands for amendments to the law, particularly amendments to ensure that offences such as possession and use of firearms, automatic or non-automatic, be excluded from the political offence exception. The Government gave careful consideration to the Supreme Court decision and to the widely expressed views on that decision, and decided, as stated in this House on 26 November 1991, that legislation should be enacted to amend, clarify and extend the range of offences that could not be regarded as political for extradition purposes. This is the reason the Bill is before the House. I accept it has taken some time since the Government decided to change the law to bring the Bill before this House but Deputies will appreciate that we are dealing with a very sensitive and complicated area of law. It was necessary, therefore, to give careful and detailed consideration to any possible changes.
I will explain how the Bill changes the scope of the political offence exception. Section 3 (3) of the 1987 Terrorism Act sets out in a general way a list of offences which cannot be classed as political. The section follows the wording of Article 1 of the European Convention on the Suppression of Terrorism. The offences include those relating to hijacking of aircraft, attacks on internationally protected persons, kidnapping and "an offence involving the use of an explosive or an automatic firearm, if such use endangers life". With regard to the latter offence, the courts have decided that "use" of automatic firearms does not encompass possession with intent to endanger life.
Section 4 of the 1987 Terrorism Act lists two general categories of offences which may be excluded by the court from the political offence exception, depending on the circumstances. The offences in question are identical to those set out in Article 2 of the Convention and are: (a) a serious offence involving an act of violence other than one covered by section 3, against the life, physical integrity or liberty of a person; and (b) a serious offence involving an act against property, other than one covered by section 3, if the act created a collective danger for persons.
The Bill now before the House amends in two ways the qualifications introduced by the 1987 Terrorism Act concerning the political offence exception. First, section 2 (a) proposes to move the offences in section 4 of the 1987 Terrorism Act to section 3 of that Act, thereby removing the discretion of the courts to decide on a case by case basis whether a political offence is involved. In future, under the Bill such offences cannot be classed as political, regardless of the circumstances. The effect of this amendment, combined with the existing provisions, will be that serious offences against the person or against property cannot be deemed to be political.
Second, section 2 (b) of the Bill provides for the insertion of a schedule listing specific offences under Irish law which cannot be regarded as political offences. Most, but not all, of the offences listed in the schedule would come within the scope of the more general wording of the revised section 3 and the scope of the Convention on the Suppression of Terrorism. However, the schedule will ensure certainty of interpretation and, in particular, that offences involving possession of firearms or explosives with intent are excluded from the political offence exception. It is important to stress that we are not talking about mere possession of firearms but of possession where there is serious criminal intent and, in particular intent to endanger life.
The schedule lists 16 offences or categories of offences which cannot be political in the context of extradition. The first group of offences, those under the heading "Common law offences", and numbered 1 to 5, are murder, manslaughter, kidnapping, false imprisonment and assault causing actual bodily harm. The offences listed 6 to 14, inclusive, are identified by sections of particular Acts. The first category, under the heading "Offences against the person", is made up of wounding with intent to cause grievious bodily harm, and causing grievious bodily harm. The next group of offences, under the heading "Explosives", covers causing explosions likely to endanger life or damage property, possession etc., of explosive substances, and making or possessing explosives in suspicious circumstances.
The group of offences under the heading "Firearms" is made up of possessing firearms or ammunition with intent to endanger life or cause serious injury to property, possession of firearms while taking a vehicle without authority, use of firearms to resist or aid escape, and carrying firearms with criminal intent. The "Robbery and Burglary" group of offences consists of robbery and aggravated burglary. Damaging property with intent to endanger life or being reckless as to endanger life is listed under "Criminal damage". The group of offences listed under "Offences in relation to aircraft and vehicles" is made up of unlawful seizure of aircraft, unlawful acts against the safety of aviation, and unlawful seizure of vehicles. The offences described at 15 deals with accomplices in any of the offences already listed, and category 16 deals with attempts and conspiracy in relation to any of the offences.
The Bill adds some new offences to the offences that, under existing legislation, may not be regarded as political. The most important offences added are possession and manufacture of explosives and possession of firearms with criminal intent. In the main, however, section 2 of the Bill and the First Schedule cover the offences that were in the 1987 Terrorism Act. The manner in which they are set out now in section 2 and in the schedule will lead to much greater clarity. Under the 1987 Terrorism Act some offences could be regarded as political in certain circumstances. Under the Bill these offences may not be regarded as political irrespective of the circumstances and, accordingly, offences such as possession of firearm with intent to endanger life and use of non-automatic firearm to resist arrest are clearly placed outside the political offence exception.
Members of the House will note that the offences in section 2 of the Bill and in the First Schedule fall into the terrorist category. They are the kind of offences that are committed in Northern Ireland and in Britain and in other European locations by terrorists. They do not merit the description "political" in the sense that most people view the word "political" today. Since the case of McGlinchey v. Wren 1983 ILRM 169 the courts have recognised that offences of the kind which can and do involve the slaughter of innocent civilians should not enjoy exemption from extradition on the grounds that they are “political”.
Deputies will be aware that the Extradition Act, 1965 and the 1987 Terrorism Act provide that certain offences, including some stipulated in certain international conventions, may not be regarded as political for extradition purposes.
Examples in section 3 of the 1987 Terrorism Act are the Convention for the Suppression of Unlawful Seizure of Aircraft and the Convention for the Suppression of Unlawful Acts against Civil Aviation. The Bill before the House makes provision in relation to another international convention — the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Section 3 of the Bill provides for an amendment to section 3 of the 1965 Act by providing for new definitions of "political offence" and "revenue offence" in the 1965 Act. The changes in the definitions of these terms will exclude an offence within the scope of article 3 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances from the scope of the political offence and revenue offence exception categories. This change will enable us to comply with the requirements of article 3.10 of the Drugs Convention. It is intended to ratify that convention following the enactment of the Criminal Justice (No. 3) Bill, 1993 which provides for the confiscation of the proceeds of crime. What this means, briefly, is that we want to meet our international obligations to fight the drugs problem by insuring that offenders whose extradition is sought cannot hide behind the exemptions provided by either the political or revenue offence exemptions.
I have outlined the changes proposed in the Bill in relation to offences and their exclusion from the political and revenue offences categories. There are other changes proposed. These deal with the following matters: confining of extradition matters to nominated judges of the Dublin Metropolitan District Court; bail in extradition cases; execution of a warrant by a Garda Síochána not in possession of the warrant; alleged offender intending to enter the State; the place at which a person to be extradited is to be handed over and the remand period for a person arrested on a provisional warrant.
All of these proposed changes are prompted by experience in operating the Extradition Acts in recent years. They will contribute to a smoother and more effective working of our extradition procedures. What follows is a brief outline of each of the proposed changes.
Heretofore, extradition applications under Part III of the 1965 Act have been dealt with by judges of the District Court at various venues around the country. Under section 4 of the Bill, extradition matters generally will be confined to a list of judges of the Dublin Metropolitan District Court nominated specifically for that work. This will have a number of advantages. It will enable the nominated judges to specialise in extradition cases and develop a high level of expertise in extradition legislation and procedure. This is an important consideration given the importance of extradition, its sensitivity, and its complexity both from the point of view of legislation and case law. Also, this change will make it possible to concentrate cases in one court location in Dublin which should have many beneficial results. There is benefit from the point of view of security, both as regards the cost of security and the effectiveness of security measures. There is benefit also in terms of efficiency in that lawyers and judges with the necessary expertise will be concentrated at the same venue for extradition cases. It is to the benefit of persons whose extradition is sought and to the system of justice also that expertise is concentrated in this way.
The Government has also decided that bail in extradition cases should be confined to the High Court. The present position as regards criminal proceedings is that the District Court has jurisdiction to grant bail in most cases. However, there are some offences of a serious nature where the power to grant bail is reserved to the High Court. Like this latter group of offences the Government considers that the question of bail in extradition cases is such an important matter that it should be reserved to the High Court. The importance of bail in extradition cases stems from the fact that these cases are more than a purely domestic matter — they relate to our international agreements with other states. This change is made by providing in section 5 of the Bill for a new section 7A in the 1965 Extradition Act.
At present a person wanted for extradition may be arrested only by a member of the Garda Síochána who has a warrant in his or her possession. Circumstances arise, however, where an opportunity to arrest a person wanted for extradition arises and the garda in question does not have the warrant in his or her possession. It is proposed to get over this difficulty by providing that the garda may make the arrest even though he or she does not have possession of the warrant at the moment of arrest. However, the garda must produce the warrant within 24 hours and give a copy to the person arrested. Section 6 of the Bill makes the necessary changes by amendments to sections 26, 27 and 45 of the 1965 Act.
Section 10 of the Bill amends section 43 of the 1965 Act. Section 43 deals with the endorsement of warrants in respect of persons here whose extradition is being sought to Great Britain or Northern Ireland. The amendment adds the words "or may intend to enter the State" to the wording of section 43. The result will be that the Commissioner of the Garda Síochána may endorse a warrant in respect of a person where it appears to him or her that the person is coming to the State. Currently the position is that the warrant may be endorsed by the Commissioner only when the person sought is actually in the State. The proposed amendment would facilitate situations where a person is known to be on board a ship or a plane on its way to the State.
The Bill also proposes to remove the need for the courts to specify the location at which a person will be handed over to the authorities of the requesting jurisdiction under Part III of the 1965 Act. This requirement has given rise to major security operations in the past on both sides of the Border and has caused major disruption to cross-Border traffic along with large scale demonstrations. The necessary amendment to section 47 of the 1965 Act is provided for in section 12 of the Bill.
The final change in this group of procedural changes is that the period of remand for a person arrested on a provisional warrant under Part III of the 1965 Act is being extended from three to seven days. Provisional warrants are used in urgent cases and allow a suspect wanted in the United Kingdom to be detained pending the physical delivery of the original warrant from the United Kingdom to Ireland. Under the 1965 Act three days was considered sufficient as that gave adequate time for the necessary papers to be transmitted from the United Kingdom. The Extradition (Amendment) Act, 1987 provides for examination of documentation and consideration of applications by the Attorney General prior to a warrant being endorsed by the Garda Commissioner. This requirement was not in existence when the three day period was specified under the 1965 Act. The result is that the three days provided for in different circumstances is inadequate in the new circumstances obtaining since the passage of the Extradition (Amendment) Act, 1987. The Government feels that seven instead of three days is a more realistic period to allow. This is provided for by section 13 of the Bill.
I will refer briefly to other sections of the Bill. Section 1 deals, inter alia, with the application of the amendments proposed in the Bill. Subsection (2) follows the equivalent provisions in sections 3 of the 1965 Act and section 14 of the 1987 Terrorism Act — i.e. the Bill applies to offences whenever committed. However, the Bill will not affect cases already decided where extradition was sought but refused on the grounds that the offence in question was a political offence or an offence connected with a political offence. Subsection (3) provides that the changes made in the Bill by sections 2 and 3 will not apply to requests for surrender under Part II of the 1965 Act, or warrants for arrest under Part III of the Act or requests for the obtaining of evidence of criminal proceedings outside the State, issued before the commencement of the Bill.
Sections 7, 8, 9, 11 and 14 make some technical or minor changes and provide for the remedying of technical defects and the removal of doubt which may exist in relation to some provisions in existing extradition legislation. Section 15 provides for the repeal of enactments listed in the Second Schedule to the Bill and section 16 deals with the short title, collective citation, construction and commencement.
Before concluding I want to say a few words about "specialty". "Specialty" means the general rule in extradition law and treaties that a person may not be tried for any offence other than the specific offence for which he/she is extradited except with the consent of the extraditing State. This applies to the country to which he/she is extradited, and to any third country to which he/she might be extradited.
At present, the arrangements for specialty as between Ireland and the United Kingdom are non-statutory arrangements. The arrangements are intended to ensure that additional charges will not be brought after extradition and that a specialty principle will be observed. However, it has been agreed for some time past that specialty as between the two jurisdictions should be put on a proper legislative basis.
The necessary legislative provisions on our side will be made by Ministerial Order under section 3 of the Extradition (Amendment) Act, 1987 which provides for the application by Ministerial Order of the specialty provisions of Part II of the Extradition Act, 1965 to the United Kingdom. Last year the British Government passed the necessary primary legislation to enable them to have a statute-based specialty arrangement with us. They will have to make an order also. Discussions are in progress to ensure that the two orders are consistent with one another when finalised. When the two orders have been finalised and signed they will be brought into operation on the same date as the provisions of the Bill before the House are brought into operation.
The rule of specialty is an important safeguard in extradition. Other safeguards exist in our law which are not being disturbed by the present proposals. Firstly, the Attorney General will continue to exercise his or her functions under the Extradition (Amendment) Act, 1987 whereby requests for extradition to the United Kingdom will be proceeded with only where there is a clear intention to prosecute and such intention is founded on the existence of sufficient evidence. Secondly, an important safeguard introduced by section 9 of the 1987 Terrorism Act will continue in force. Section 9 amended section 50 of the Extradition Act, 1965. It provides that the High Court may direct that a person arrested shall be released where the court is of the opinion that extradition is being sought for the purpose of punishing or prosecuting a person because of his or her race, religion, nationality or political opinion.
Let me summarise by saying that the major changes provided for in the Bill relate to offences being excluded from the political offence category. The Bill extends and amends the position in relation to these offences as originally legislated for, in particular in the 1987 Terrorism Act. Court decisions in 1991 established that there were loopholes in that Act. The main purpose of the Bill is to close those loopholes. The Bill also gives effect to requirements relating to extradition in the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. In addition, the Bill provides for some desirable changes in procedure in extradition cases. All the changes proposed in the Bill are deserving of the enthusiastic support of the House.
I commend the Bill to the House.