We now come to amendment No. 3. Amendments Nos. 6 and 20 form a related composite proposal. I suggest that we discuss amendments Nos. 3, 6 and 20 together, by agreement.
Extradition (Amendment) Bill, 1994: Report Stage (Resumed) and Final Stage.
I move amendment No. 3:
In page 2, between lines 33 and 34, to insert the following:
"2. — Where a request is received for the extradition of a person from the State, the requesting state shall be required to provide, before the District Court, evidence in written form as to the commission by the person claimed of the offence or offences for which extradition is sought, and extradition shall not be granted unless such evidence produced establishes a prima facie case of involvement in the offence or offences alleged.”.
This matter was the subject of considerable debate on Committee Stage and when the legislation was passed in 1987. Since 1986 we have had three Acts dealing with extradition. This reflects the degree to which extradition has been regarded as politically sensitive and approached in a tentative way. There may be a necessity for a fourth Bill unless we address the issue which has arisen since we last discussed this question, namely, the case dealt with in the High Court during the past week, which is highly relevant.
In that case the court decided not to proceed with extradition on three grounds: because of the way the procedures was followed in the District Court, because the offence was considered a political and because the accused might suffer as a result of prejudicial comment in the British press. My principal concern is not the extent to which the court procedures were followed, although many members of the public wonder why a technicality should be so important in such a serious case.
The political nature of the offence is central to this legislation. When it is signed into law the offence in this case will no longer be regarded as political. It will not be possible to make the case in court that the shooting of a policeman or soldier, irrespective of the way it was carried out, constitutes a political offence. I found it offensive that because an illegal organisation claimed responsibility for the crime it was used to support the argument it was a political offence. It beats me how — what the judge called a well planned assassination — could be regarded as a political offence.
We must give consideration to the question of prejudicial comment. It is perfectly in order for the courts to take the view that if what passes for journalism — cheap, monosyllabic racist commentary which is a feature of some sections of the British tabloid press — would prejudice the case of a peson he should not be extradited. If a prima facie case is established in such a case there is an obligation on us to ensure that the person concerned is tried in this jurisdiction. The accused should not walk free because of prejudicial comment in the British press. Where extradition is refused on this ground the person should be tried in this jurisdiction for the offence.
This amendment relates to the establishment of a prima facie case. I propose there should be a requirement to establish a prima facie case before an extradition warrant is granted. The procedure is that an extradition warrant is presented to the Attorney General who considers the matter in private and decides whether there are sufficient grounds on which to proceed with extradition.
It is wrong that matters of this kind should be decided by any officer of the State, the Attorney General or otherwise, in private, they should be decided in open court. The argument has been made, not only on this occasion but in previous debates, that the Attorney General is not the appropriate officer to deal with this matter. We have to make up our minds whether it should be decided in the courts or in the political domain. It is the responsibility of politicians and the legislature to decide the basis on which extradition should be granted and the rules that should apply. It should not be decided in the political or quasipolitical domain.
The Attorney General is the Government's law officer; it is a political appointment and very often there is a change on the appointment of a new Taoiseach or Government. On some occasions the Attorney General has been a Member of a House of the Oireachtas. There is a necessity to ensure that extradition applications are not decided in the political domain; they should be decided in the judicial domain where the application is considered in open court. The Attorney General should not consider the issue in private.
I accept there is a necessity for this country to have extradition arrangements. Somebody accused of a serious crime, what is classified as normal crime or terrorist offences, should not have the right to walk free by returning to this jurisdiction. The political justification for crime has an honourable history and was born out of the idea that those who engaged in struggles against oppressive regimes should not be sent back if they sought refuge in another state. However, we now live in a world where it is possible for a terrorist to place a bomb in the centre of London and to be back in Ireland before that bomb explodes.
We need extradition arrangements that ensure that people cannot simply walk away from crimes. We also need to ensure that there are safeguards in our extradition laws, that it is not a process that is used willy-nilly but is used and seen to be used carefully. That is why it should be a primary requirement to establish a prima facie case that extradition is justified, and that case should be established in court and not by private examination by the Attorney General of documents presented to him.
I do not propose to repeat everything that was said during the long discussion we had on Committee Stage when I put this to a vote and found myself in a minority. Deputy Harte told me that I may have created parliamentary history because it was the first division in the history of the House where only one Member voted for the proposition. It is certainly a far cry from the exciting times of 1986 and 1987 when the same proposition was decided on the casting vote of the Ceann Comhairle. I do not know if I can hope for a greater degree of support for this proposition than I got on Committee Stage, but one never knows; a lot of water has passed under the bridge since Committee Stage so I live in hope.
The amendment in my name is similar to that tabled by my party in 1987. It calls for a procedure in the High Court by way of affidavit to show probable cause. Extradition is not a simple process divorced in any way from civil liberties. There are very real constitutional and justice issues at stake. It is up to us to get it right and not cede ground on civil liberties. That is why the Progressive Democrats consistently argued for the introduction and maintenance of fair and effective safeguards against arbitrary or oppressive demands for extradition.
The present system, which involves the Attorney General vetting warrants, is inferior to the more transparent judicial procedure which we propose. Advice given to successive Governments on this issue has been defective in that it failed to distinguish between Irish citizens in respect of whom we can insist on evidence and others in respect of whom we cannot now insist on evidence without denouncing the 1957 Convention. The best safeguard against automatic extradition of citizens without a sound evidential base is to require that an affidavit be submitted to the High Court to show the outline of the evidence against the accused, not for the purposes of adjudicating finally on guilt or innocence or the merits of the case, but to oblige the requesting country to demonstrate that the request is based on substantial grounds and show that it is not insubstantial or based on mere suspicion for the purposes of creating a case and that it is not otherwise oppressive or political.
We believe the prima facie case should not be required but that there should be a procedure to oblige the requesting State to show good and substantial grounds. However, we object to the way substantial grounds or probable cause are vetted at the moment by the Attorney General in secret and the fact that he is not obliged to outline to anybody, including this House, how he came to his decision. The object of this legislation should be to depoliticise extradition. We should have strong safeguards to protect civil liberties but we should not cede ground on transparency and the need for a judicial rather than a political process. Otherwise there will be the fear that there might be political interference in reaching decisions about whether a warrant should go to the next stage.
I accept Deputy Gilmore's point. In the McGee case the other day the decision was based on three grounds. The first was that the District Court procedures were defective and prejudicial — we have also pointed out in this House that the District Court is not the right forum for extradition proceedings and that the High Court should be the court of first instance in matters of extradition. The second ground was that the political offence exception applied. That was the judgment of the court and the loophole we are closing would remedy that.
The third ground is a serious one which relates to prejudicial comment in the media. I agree that the Government should make some approach to the British Government with a view to the British Attorney General setting down clear guidelines on media comment, circulating them and enforcing them through the contempt of court laws. It would be a shame if, having closed the loopholes, extradition could still be avoided by virtue of prejudicial media comment.
We suggest that the same guidelines be adhered to in parliamentary and extraparliamentary political comment and that the security forces should not, because of press leaks, prejudge or finger suspects so as to compromise extradition arrangements, and that the hearing of trials should not be the subject of a huge overkill as they are in Great Britain entailing the use of security cordons, helicopters, marksmen and the like. That is a political issue which must be taken up by the Minister with the British Attorney General. It is part of the territory of extradition that it engages media attention, and prejudicial media comment could be disastrous and unravel all we are trying to do in tightening up our extradition procedures. If that can still be put forward as an excuse for avoiding extradition and it is upheld by our courts we are really in trouble. Some effort must be made at political level to stop such prejudicial damage in the British media.
I do not hold out much hope that this amendment will be accepted, but we still hold to our views on this matter of the requirement to show probable cause in a judicial setting rather than via the Attorney General.
I regret that I cannot support either of these amendments which I did not support on Committee Stage. I understand the points being made. However, the danger of a trial within a trial is that citizens would be sent away from this State with a guilty tag attached to them and that is what both of these motions translate into.
I was alone on both Second and Committee Stages in calling on the British law officers — the Lord Chancellor, the Home Secretary and the Attorney General — to consult and have the courage to do something about the outrageous behaviour of the Fourth Estate in Great Britain. What happens there in terms of pre-trial coverage would not be allowed in this jurisdiction. If they do not have the courage to take on the press, how can they expect others to take on terrorists? This House has shown its determination in implementing the provisions of the European Convention on Terrorism and this legislation meets those provisions. However, there is little point in implementing them if the three main law officers in Britain allow a position to prevail whereby suspected terrorists are allowed off the hook because those officers have not got the bottle to take on those who are prejudicing trials. I was alone in making that point, but Mr. Justice Flood in the High Court last Friday made it one of the three grounds for not extraditing a suspected person. That matter must be addressed. I hope a message goes out from this House to the British Administration that if it is not prepared to address that question we can pass as many laws as we like, but the Irish courts will find it difficult to extradite an Irish citizen to a jurisdiction where trials are prejudiced in a manner which would not be allowed here.
The British law officers must take responsibility for that matter as it is central to the question of extradition. It is cowardly of them not to take on the press in this matter. The press in Britain should be required to be responsible for the way it reports on pre-trial matters, otherwise people who face charges for serious offences will have a way out.
The other two grounds on which Mr. Justice Flood made his decision are matters which concern this jurisdiction. One of them is a procedural matter relating to the manner in which the case was dealt with in the District Court. I presume the Minister is examining that matter and that those procedures will be tightened up in the future.
I do not agree with Deputy O'Donnell that we should deal with the remaining section today. Mr. Justice Flood stated that the assassin did not create a collective danger to the life, physical integrity or liberty of persons. Accordingly, the matter did not come under section 4. Does the word "persons" mean two persons other than the person assassinated or seriously injured or does it mean the person who is attacked and one other person? Why is the plural used in this case? The singular is used elsewhere in the legislation. We may believe we are passing proper legislation here but if it goes to court and is challenged by eminent lawyers, they will want the court to decide precisely the wording of the legislation. Some time ago a question arose in our courts about the meaning of "automatic weapons" and it was established that they are different from other firearms. The court was very strict in its interpretation of that wording.
I cannot support the two amendments because there is a trial within a trial— the establishment of a prima facie or probable cause case — persons would exhaust all those procedures before being extradited. People are extradited every day of the week. We are saying that terrorists should have special terms of reference and given preferential treatment while those extradited every day of the week cannot have a trial within a trial. If a prima facie or probable cause case is established and, for example, we extradite a person from here to the British jurisdiction, that person is sent with a tag around his or her neck, so to speak. They would not be extradited in the first place if a prima facie or probable cause case was not established in our courts. Even though a judge may direct a jury to ignore that matter, it will be brought out in the case. It is not beneficial for a person who is innocent until proven guilty, to be extradited following a prima facie or probable cause case being established.
I agree with the Deputies who tabled the amendments that there is a problem about accountability. Deputy O'Donnell eloquently made the point about the Attorney General making decisions behind closed doors. I have a fundamental problem about the Attorney General not being accountable for his decisions. I have no difficulty with the fact that he makes decisions because he holds a semi-Executive post rather than a judicial one. It is a Government to Government responsibility. It is the Government of Ireland who are charged with international relations, not the courts. It is not a court to court or court to foreign Government relationship. Although the Attorney General is not a member of Government, he sits around the Cabinet table and is probably the right person for the job, but he and the Director of Public Prosecutions should be accountable for their decisions. I am not referring merely to extradition matters, but to the exercise of their powers generally. I do not believe anybody should be so independent as to be unaccountable.
Even judges, who are totally separate from the Government and the Legislature, make their decisions in open court.
The Attorney General and Director of Public Prosecutions here differ greatly from their counterparts in Great Britain on one fundamental matter, namely, the Attorney General in Great Britain advises Parliament and must be a Member whereas the Attorney General here advises the Government and need not be a Member of Parliament. When the Attorney General in Great Britain hived off some of his powers to the Director of Public Prosecutions he retained accountability to Parliament. If the Director of Public Prosecutions fails to prosecute a case for not bringing forward a book of evidence on time — as happened here in relation to a debt and stolen tobacco worth up to £1 million — the Attorney General accounts to Parliament, but here we cannot even ask a question in Parliament in that regard. This is fundamentally wrong.
In exercising his powers generally and accounting for the role of the Director of Public Prosecutions, we must establish a forum through which the Attorney General is accountable to Parliament. If he is not required to be a Member of the Dáil or Seanad he should at least be required to answer questions before the Select Committee on Legislation and Security. The accounting officers in the offices of the Attorney General and the Director of Public Prosecutions are required to attend before the Committee on Public Accounts to answer questions on financial regularity and value for money aspects of the administration of their offices. I see no reason the Attorney General and the Director of Public Prosecutions could not be required to attend in a similar fashion before a committee of Parliament to account for their stewardship.
The amendments are worthwhile and the Deputies made a good case for them, but for the reasons outlined, I cannot support them.
The topic raised by Deputies O'Donnell and Gilmore was discussed at great length on Committee Stage. I will not give a lengthy reply now as I gave a detailed one at that stage, but I will summarise the position. We cannot impose unilaterally any type of prima facie requirement where our extradition laws are governed by either convention or treaties. That excludes all countries except the United Kingdom because we have no written treaty or convention with it. Experience in the UK has shown that a formal prima facie requirement in whatever form gives rise to considerable difficulties and delay in practice and for that reason I cannot accept it. A requirement for probable cause to be shown by affidavit would give rise to similar difficulties and delays in practice. The existing safeguard provided in the Extradition (Amendment) Act, 1987 applies only to the United Kingdom because there were particular concerns relating to that country. I am satisfied the Attorney General is the appropriate person to apply those safeguards. As I said on Committee Stage, the existing system works well and I see no need to change it.
We all accept extradition is a two way process. For example, in 1993 five people were extradited to the United Kingdom from here and 13 people were extradited from the UK to this country. It is in our interest to ensure that workable extradition arrangements continue to operate between both countries. As I said on Committee Stage, the general thrust of discussion at European Union level is that it should be possible to simplify extradition arrangements between member states since every member state is a parliamentary democracy, has an independent judiciary and is party to the European Convention on Human Rights. To introduce any type of prima facie requirement would run counter to the approach being taken in the European Union and no European state imposes such a requirement in respect of extradition to this country.
All three Opposition spokespersons referred to the publicity surrounding cases involving extradition in the United Kingdom. At Anglo-Irish meetings, and one will be held next week, we have at all times discussed areas of security, legislation in this country and the United Kingdom and, from time to time, extradition matters. I intended to raise the matter of the attendant publicity in the most recent case in advance of this debate and the debate in the Select Committee on Legislation and Security. Following the decision in that case certain senior members of the British Parliament made severe criticisms of the Government and in particular the Irish Legislature. The criticism related to only one aspect of the reason for the non-extradition of the individual involved and they choose to ignore another aspect which concerned their jurisdiction. As Deputies rightly said, if there was such publicity here, the persons responsible for it would be held in contempt of court. Deputies made reasonable points about what happens across the water and I have no difficulty raising them at the Anglo-Irish Conference. I will avail of the opportunity to raise it with my colleague, the Home Secretary, at the next meeting of European Union Justice Ministers due to be held shortly.
I remind Deputies, although I am sure they do not need reminding, that under the Criminal Law Jurisdiction Act, 1976 it is possible to try a person accused of offences in Northern Ireland before the courts here. It is also possible to try persons accused of murder and explosive offences committed in the United Kingdom.
Regarding Deputy Mitchell's final question, the plural is used in section 2 (a) (II) because it refers to an act against property. It does not relate to an act of violence against the life, physical integrity or liberty of a person. Invariably, even if only one person is involved in, for example, a bomb attack on property, it poses a threat or as stated in the Bill, "a collective danger for persons".
Does section 4 address the concerns of Mr. Justice Flood? Is that matter closed?
It does. I oppose the amendments.
I am not surprised by the Minister's response to the amendment because it is in line with the one she gave on Committee Stage. Her position is considerably at variance with the positions taken on this point by both Fianna Fáil and the Labour Party when they were in Opposition. The record of the House in 1986 and 1987 is peppered with fine speeches from many members of both parties, some of whom are now in Cabinet, arguing for the making of a prima facie case before the courts and for the inappropriateness of the office of the Attorney General to deal with this matter.
I am pleased the Minister intends to raise the issues which arose in the McGee case and the concerns expressed by Judge Flood, particularly in respect of prejudicial publicity in Britain. I am not sure what progress she will make. The manner in which the British Government relates to its press and members of the British Parliament express themselves on matters relating to Anglo-Irish relations, extradition and so on, is outside our control. It would be worth their while remembering that there is a determination in this State to deal effectively with the problem of terrorism. The cheap, nonsensical jibes made periodically by British politicans seeking a headline and by sections of the British tabloid press willing to print it that this country is soft on terrorism do not hold up. The State has had to deal with the problem of terrorism for a long time and has done so effectively. It would considerably help this State if the British establishment and press behaved in a responsible way and ensured fair procedures and trials for people accused of terrorist offences. That would contribute a great deal to ensuring the safety of people on both islands and ensuring those who are accused of having committed terrorist type crimes are brought to justice. People who speak off the top of their head and use cheap headlines have not helped the process of dealing with terrorist offenders.
I am surprised by the Minister's response to the amendment and I ask the Acting Chairman to put the amendment formally to the House. In view of my unhappy experience on Committee Stage I do not intend to ask the House to divide on it.
On a point of order, as three amendments were debated do I not have a right to reply to my amendment?
No, only the mover of the first amendment has the right to reply.
Is that the case even though my amendment was taken with it?
Acting Chairman
That is the position.
We get caught like this all the time on Report Stage.
The Deputy made her point very well the first time.
Amendment put and declared lost.
I move amendment No. 4:
In page 2, between lines 33 and 34, to insert the following:
"2. —Part III of the Principal Act, as inserted by section 2 of the Extradition (Amendment) Act, 1987, is hereby amended by the deletion of sections 44A and 44B and the substitution of the following new section:
`44A. —(1) A warrant for the arrest of a person accused of an offence under the law of a place in relation to which this Part applies shall only be endorsed for execution under this Part if a Judge of the High Court certifies that he is of the opinion that—
(a) there is a clear intention to prosecute or, as the case may be, to continue the prosecution of, the person named or described in the warrant concerned for the offences specified therein in a place in relation to which this Part applies, and
(b) such intention is founded on the existence of sufficient evidence.
(2) A Judge of the High Court shall only certify a warrant under this section when a request for extradition is accompanied by a statement of fact, by way of affidavit or statutory declaration, which satisfies the Judge that there are reasonable grounds for believing that an offence has been committed and that the person sought committed it.'.".
This is a consequential amendment and I do not propose to delay the House on it because we had a long debate on this matter on Committee Stage. The issue is whether the person examining the warrants should be the Attorney General or a High Court judge. I stated previously that the Attorney General is not the appropriate officer to do so. Considering that the first amendment on this matter failed, this is the fallback. The Minister responded negatively to the amendment on Committee Stage and I simply wish to put it on Report Stage.
Amendment put and declared lost.
Acting Chairman
Amendment No. 5 is in the name of Deputy Gilmore. Amendment No. 18 is an alternative and it is proposed that Nos. 5 and 18 be taken together, by agreement.
I move amendment No. 5:
In page 2, between lines 33 and 34, to insert the following:
"2. —The Extradition (Amendment) Act, 1987, is hereby amended by the deletion of section 6 and the substitution of the following new section:
`6. —The Government shall, as soon as may be after the 1st day of January in each year, and not later than the 1st day of April, beginning with the year 1989, make a report to each House of the Oireachtas on the operation in the preceding year of Part III of the Principal Act.'.".
Under the 1987 Act there is a requirement that an annual report be presented to the Oireachtas on the operation of the extradition procedures. I stated on Committee Stage that the last report was published in 1991 and I was concerned to ensure that reports are published on time. My amendment proposes that the report be published within a period of three months. The Minister said on Committee Stage she would respond with an amendment and I look forward to her proposal.
I support the general thrust of Deputy Gilmore's amendment. The Minister's amendment goes a long way to meet our requests. The whole question of publishing information on extradition is important. A requirement, once passed into law, should be met. We have a habit of making laws that reports be published by certain dates but we do not ensure that is done. The Minister proposes that the report be published not later than 31 December of the following year. In those circumstances the Minister would have all of this year to compile the report for 1993, which seems a long time since the details should be readily available. However, it is an improvement on the present position. The amendment does not require the Minister to lay the report before the House. Perhaps she would consider that suggestion between now and the debate on the Bill in the Seanad, unless there is already a requirement in the original Act that these reports be laid before the House.
It is not often that I agree with amendments from the other side but in this instance there is a case to be made and I support the thrust of Deputy Gilmore's amendment. In an area that is so complex and sensitive and in which many of us would have different views, it is important that there be a report to the Dáil on a regular basis. However, I am concerned about the timescale of three months proposed by Deputy Gilmore. Due to the complexity of the issue the Minister would need reasonable time to report back to the Dáil on the previous year's progress in implementing extradition provisions. Deputy Mitchell is concerned that a year may be too long and perhaps that is the case. I have no hard and fast views on that matter, but a three month time limit for the preparation of a comprehensive report is too short. I appeal to Deputy Gilmore to consider giving greater flexibility to the Minister of the day in reporting back to the House.
In reply to Deputy Mitchell's point, we are not changing the thrust of section 6 of the Extradition (Amendment) Act, 1987 which provides that the report be laid before the Houses of the Oireachtas. The point was made on Committee Stage, particularly by Deputy Gilmore, that reports of the operation of Part III of the Extradition Act, 1965, should be laid before the Houses of the Oireachtas within a specified period. The Deputy suggested a deadline of 1 April, which he has repeated in his amendment today. When we discussed this matter on Committee Stage I gave a commitment that I would ask my officials to talk to the officials in the Attorney General's office to see what could be achieved. I did that because I agree with the principle behind Deputy Gilmore's amendment. For reasons which I will explain I cannot agree with the deadline of 1 April. There are also technical problems with Deputy Gilmore's amendment. My amendment will go some of the way towards meeting the general thrust of the Deputy's proposal.
Deputy Gilmore's amendment refers to "beginning with the year 1989". The report for 1992 will be submitted to the Government shortly for approval and will be laid before both Houses. The proposed deadline for the 1992 report would be 1 April 1993, which is already past, and if I were to accept this amendment in its present form the Government would be in immediate breach of its statutory obligations. That is not reasonable and for that reason alone I would have to oppose the amendment.
I accept the principle that some deadline should be laid down but it should be a reasonable one. In setting down deadlines we should be realistic and ensure we can meet them. Officials of my Department have consulted the Attorney General's office — that office drafts the reports for each year. I considered the matter in the light of those consultations and I am of the view that the present practice of including an indication of the outcome in each case is a valuable one and should be retained. For the readers of individual reports it would obviously be much more helpful if they could assess the number of extraditions and the outcome of those requests. For that reason it is worth waiting a reasonable time so that that kind of information can be included. Obviously, we should not wait indefinitely. Most cases would be decided within 12 months and that is why I propose the deadline of end December. That would mean that the report for the 1993 cases would have to be laid before the Houses before 31 December this year.
I thank the Minister for responding positively to the amendment proposed on Committee Stage. Nobody can justify a time lapse of two to three years in the production of a report. We talked a great deal about the need to ensure that there are safeguards in the operation of our extradition laws.
One of the safeguards built into the 1987 Act was a requirement that the Government would make a report to the Houses of the Oireachtas setting out how the system was operating, the number of people extradited, etc. There is a need for such reports to be presented on time. I accept that three months might be too short, but I am still perplexed as to why it should take a full year to produce a report which does not contain a great deal of information — the number of extraditions is not great. I accept the Minister's point that it is desirable to track what happened to people who have been extradited and that it may not always be possible to do this within a 12 month period. In practice the 1993 report will be produced at the end of 1994, which effectively means there will be almost two years between the extradition of a person at the beginning of 1993 and the publication of the report at the end of 1994. This gap is too big.
Given my occupational background, I am tempted to ask the Minister if she would be prepared to split the difference between the three month and 12 month periods. If she would be prepared to do so I would be very glad to hear it, but if not I am happy to withdraw my amendment.
We will toss for it.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 2, between lines 33 and 34, to insert the following:
2. —(1) In any proceeding under Part III of the Principal Act in respect of any warrant for the arrest of a person who is for the time being a citizen of Ireland and is accused of an offence, a final order shall not be made under section 47 of that Act unless documentary evidence within the meaning of this section shall have been produced to the Court.
(2) In this section, "documentary evidence" means an affidavit or statutory declaration setting forth reasonable grounds for believing that the offence to which the request for extradition or warrant, as the case may be, relates has been committed and that the person before the Court committed it.
(3) The Minister may by regulation made under this Act in relation to "documentary evidence" provide for any or all of the following matters:
(a) the persons or classes of persons who may swear an affidavit or make a statutory declaration,
(b) the persons before whom an affidavit may be sworn or a statutory declaration made,
(c) the form of an affidavit or statutory declaration and the manner and place in which it is to be sworn or made,
(d) the means of knowledge required of a deponent,
(e) the documents, if any, that shall be exhibited in an affidavit or statutory declaration,
(f) such other matters as appear to be necessary or expedient for the proper working of this section,
(g) the revocation or amendment of any order made under this section.
(4) A document purporting to be an affidavit or statutory declaration for the purposes of this section shall be received in evidence by the Court when tendered without further proof and it shall be presumed until the contrary is shown that the document was made for the purposes of this section and in accordance with the provisions of any order for the time being in force under subsection (3) of this section.
(5) In considering whether or not an affidavit or statutory declaration sets forth reasonable grounds for believing that the offence, to which the request for extradition or warrant relates (as the case may be), has been committed and that the person before the Court has committed it, the Court shall have regard only to the matters set out in the affidavit or statutory declaration and any matters duly exhibited therein.
(6) Notwithstanding any rule of law or practice to the contrary a person who swears an affidavit or makes a statutory declaration for the purpose of this section shall not be liable to be summoned before the Court or crossexamined thereon in the course of any proceedings under Part III of the Principal Act.
(7) Every regulation made by the Minister under this Act shall be laid before Dáil Éireann as soon as may be after it is made and shall not have effect unless a resolution approving the said regulation is passed by Dáil Éireann.
Amendment put and declared lost.
I move amendment No. 7:
In page 2, between lines 33 and 34, to insert the following:
"2. —In section 50 of the Principal Act the words `or the Minister' in subsection (1) and subsection (4) are hereby repealed.".
This amendment deals with a matter to which I referred earlier, the extraordinary power of the Minister under section 50 of the 1965 Act to overrule a decision of the courts in an extradition case. On Committee Stage the Minister said that this power had never been used. Regardless of our qualms about giving the Attorney General executive powers in the vetting of warrants, it seems extraordinary to give the Minister a power which would allow her to overrule a decision of the High Court or Supreme Court and which she does not use. What is the justification for including this executive power in the Bill? The Progressive Democrats are seeking to depoliticise acts of terrorism, I would be interested to hear the Minister's justification for retaining this power. Is it constitutional for her to retain a power which enables her to overrule decisions of the Supreme Court in extradition cases?
I do not know why Deputy O'Donnell is so concerned about this power which has been accorded to successive Ministers. I understand it has never been abused. I do not think it has ever been invoked.
Then why have it?
If this is the case, why is the Deputy proposing that the power should be deleted? The power has not been used or abused and there has been no call for its deletion. Does the Deputy have some theoretical, philosophical or ideological objection to this power? I accept some of the points made by the Deputy, but I do not understand why she should be so concerned to have this power deleted from the Bill. If the courts are not concerned about this power—my information is that they are not, but I am sure the professional practitioner opposite who attends court very often will correct me if I am wrong — why should we, as legislators, seek to remove one of the discretionary powers of the Minister? Is there a problem of conscience which says that we should bow to the courts in all matters of this kind? If that is the motivation behind the amendment I certainly would not be happy with it.
I hope Deputy O'Donnell does not mind if I reply to that point.
I thought the Deputy was in the House merely to find out——
From all accounts, I missed a great barney earlier.
We missed the Deputy.
If a power of this kind is used to overrule a decision of the courts it will raise questions about the Executive superimposing its view on a matter which it put in the hands of the court, presumably with the intention of accepting its decision. It is strange if, after putting an issue before a judge, listening to his decision and, if necessary, listening to the decision of the Supreme Court, the Executive arm of the State says it does not agree with this decision and will do what it wants itself. That used to be the case when people were sent forward for indictable offences from the District Court. There used to be a provision under which a person could be put on trial on an indictable charge — the book of evidence was brought before a district justice and if he ruled there was no case to meet, the Attorney General — now it is the Director of Public Prosecutions — had the right to say it did not matter what the district justice thought, that he was sending the case forward for trial anyway. I think that was struck down as a principle in the Costello case. The issue here is whether a Minister could use this power. Unless the Minister is in a position to say she could reverse a Supreme Court decision, I can see no reason for leaving this power on the Statute Book.
Returning to the subject matter of this morning's barney, if the argument is made that it is necessary to prevent legislation impinging on existing court decisions and the Legislature has to be told it cannot undo court decisions, how can we argue for the proposition that a Minister can do it? What constitutional principle gives Ministers powers which the Legislature does not have? It is a case of the Minister having her theoretical cake and eating it. She must accept one proposition or the other, she cannot have it both ways.
On Committee Stage I gave a detailed account of the reasoning behind the powers given to the Minister for Justice. I also touched on the constitutional issues involved. Attention was drawn to the possibility that the High Court might decide in a particular case that a person should not be released while the Minister might come to a different view and order the release of the person concerned. I agreed to consider this aspect further and it may be helpful if I address the constitutional issues involved.
Section 50 gives the Minister a discretionary power to direct the release of a person in certain circumstances. The 1965 Act carries a presumption of constitutionality. Furthermore, in the light of the Supreme Court decision in the case of East Donegal Co-operative v Attorney General, 1970, IR 317, there is a presumption that any Minister would exercise his or her discretionary powers under the section in a constitutional manner. In light of this presumption, it is highly unlikely that a court would find section 50 of the 1965 Act, as it now stands, repugnant to the Constitution.
A further question arises as to whether it would be constitutional for the Minister to order the release of a person under section 50 when the High Court had declined to do so. This is an academic point as it is highly unlikely to arise in practice. However, if it did cognisance would have to be taken of the fact that the exercise of the Minister's power under section 50 to release a person could not result in any infringement of that person's constitutional rights.
The only issue, therefore, is whether the exercise of the Minister's powers would represent an interference in a purely judicial domain. On Committee Stage I argued that extradition was not solely a judicial matter and that there was an executive role involved. Since then my attention has been drawn to a statement made by Judge Walsh in the Supreme Court in the case of Finucane v. McMahon, IR 1990, 165. The relevant part is at page 216 of the report. The judge addresses the Minister's power to order the release of a person where extradition is sought and states:
The Minister for Justice can, within the provisions of the 1965 Act, direct that a person shall not be extradited. His power in this regard is more restricted than that vested in the Executive in other states but it is an additional safety factor in the process as he may have better access to information from his political and diplomatic sources which ordinarily would not be available to the courts and possibly could negotiate for better treatment for the fugitive if returned.
While this statement is obiter and not conclusive it certainly supports the view that section 50 is not repugnant to the Constitution. I have consulted the Attorney General and he is of the view there is no reason to amend section 50 on constitutional grounds.
It is highly unlikely that I, or indeed any other Minister for Justice, will ever exercise the powers available under section 50, but I consider they should be retained. Hence I am opposing the amendment.
I thank the Minister for her response and if she is satisfied with the Attorney General's advice that section 50 of the 1965 Act is indeed constitutional, I am prepared to accept that advice. In relation to the matters raised this morning, was it the Attorney General's advice that the amendments to section 1 were necessary, given that the 1987 legislation was deemed to be constitutional in relation to retrospectivity?
Amendment put and declared lost.
Acting Chairman
We now come to amendment No. 8. Amendment No. 9 is an alternative. Is it agreed that we take amendments Nos. 8 and 9 together? Agreed.
I move amendment No. 8:
In page 3, line 16, to delete "the offences" and substitute "any offence which, if the act or omission constituting the offence took place in the State, would be an offence".
I wish to give full credit to Deputy O'Donnell, Deputy McDowell and Deputy O'Malley for raising this issue. The amendment they put forward, which I propose to accept with a slight modification, will remove what could have been a serious cause of uncertainty in the application of the First Schedule by the courts. Section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, as amended by section 2 of this Bill by the insertion of a new section, subsection (3) (a), will provide in effect that an offence listed in the Schedule to this Bill cannot be regarded as a political offence for the purposes of extradition to a convention country.
If extradition is sought the person would be charged with an offence not under Irish law but under the law of the country where he or she is alleged to have committed the crime. The way subsection (3) (a) of the Bill is currently worded persons sought for extradition could argue that as they committed an offence under foreign law and not under Irish law, the Schedule does not apply to them as it only lists offences under Irish law. In the case of most of the serious offences listed in the Schedule, that argument is academic because they would be covered in any event by the main part of section 3 of the 1987 Act as amended by this Bill.
There are, however, certain offences — mainly those dealing with possession of firearms and explosives — listed in the Schedule which are not covered by the main part of section 3 and the argument might have some force in those cases. The amendment proposed would make it clear beyond any doubt that the Schedule is not limited to Irish offences only but applies to any act carried out abroad, which, if carried out in this jurisdiction, would constitute one of the offences listed in the Schedule.
It is important to remove any potential for doubt and make it clear that the First Schedule to the Bill is intended to apply to criminal acts committed abroad which, if committed in this country, would fall within one of the offences listed in the Schedule. I fully accept the principle behind the amendment put down by Deputy O'Donnell and Deputy O'Malley. The draftsman wished to make certain minor changes to the amendment as put down and for that reason I put down my amendment. There is no fundamental difference between the two amendments.
I thank the Minister for accepting the point we made. It was in trying to devise a later amendment concerning membership of illegal organisations that we discovered the weakness in the Schedule and that it related to correspondence rather than the actual offence which is at issue. It is surprising that the obvious can be overlooked and it highlights the need for sufficient time to debate such complex legislation. What happened this morning only arose when we were considering the implications of the McGee case on Friday. That is why we sought more time and requested that the Bill recommitted.
I thank the Minister for her kind words and would refer her and her Department to the definition of a serious offence in the 1987 Act, on which our amendment was modelled, which states "if the act constituting the offences took place within the State". If the Minister's amendment to add the words "or omission" is right in this context, it would be right in that context also. The Minister might consider including an equivalent amendment to the definition section in the 1987 Act.
Amendment agreed to.
Amendment No. 9 not moved.
I move amendment No. 10:
In page 3, between lines 17 and 18, to insert the following:
"and
c) by the insertion of the following subsection after subsection (3A) (inserted by this section):
`(3B) This section shall apply to an offence of membership in Northern Ireland of an organisation of which membership in the State is an offence for the time being under the provisions of section 21 of the Offences Against the State Act, 1939, as amended.'.".
This amendment arose from a discussion on Committee Stage in which the following circumstance occured to me as one which should be covered. If somebody is convicted in Northern Ireland of being a member of the UVF, for example, and either escapes custody or skips bail prior to the trial and travels to the South, or if a person disappears during the trial and is later convicted of the serious offence of membership of the UVF, they are not liable to be extradited to Northern Ireland to serve the sentence the court imposed on them there. The offence of membership of an illegal organisation is not an offence to which the Schedule to this Act applies. That is unfortunate.
I chose the UVF as an example in order to be less controversial, but the same obviously applies to someone convicted in Northern Ireland of membership of the IRA. If a person accused of that offence comes to the South and evidence against them is available in Northern Ireland, they would be able to stay here and would not be liable to extradition. It is true, of course, that they would be charged if there was evidence of membership of an illegal organisation within this State. They would not be liable in any circumstances to be sent back to Northern Ireland to serve their sentence. That applies to either side of the equation, whether one is dealing with Loyalist or Republican terrorism. There is a loophole in our law in that somebody can have been convicted of a very serious offence, membership of an illegal organisation, and can effectively evade liability to serve the sentence by remaining on the other side of the Border. The phraseology of the amendment tabled on Committee Stage was not clear. We then considered amending the Schedule to include membership of an illegal organisation but that gave rise to more difficulties of interpretation, especially having regard to what the Minister said about subsection (3A). The end result was the proposal that subsection (3B) should be included, that people should be liable to extradition to Northern Ireland if they had been sentenced to a jail sentence for membership of an illegal organisation there in circumstances in which there would not be evidence to put them on trial here for the same offence.
I was speaking to a man last evening who said he had just returned from a visit to Belfast. When a group were talking in his presence they asked who the two fellows were with the Mexican accent. He wondered what they meant and it transpired they were talking about two men from south of the Border. I very much doubt if many UFF people travel south of the Border, to take refuge from Northern Ireland. However, if that is the case, we should tidy the legislation. I wonder whether the term "Northern Ireland", as used in the proposed new subsection, would stand up in law, or whether the term should be "the United Kingdom". For example, is the phrase "Northern Ireland", or a similar phrase, used in other legislation? Is there a precedent for this and would it stand up in law? I have no difficulty with the idea behind the amendment and, if it would strengthen the provisions of the Bill, I see no reason it should not be accepted. I simply wonder about the terminology used and whether the proposed subsection would add to the provisions of the Bill. If that is the case, I would have no difficulty in supporting it.
We discussed a similar amendment on Committee Stage. Just to clarify the matter for Deputy Gay Mitchell, in the 1976 Act we used the phrase "Northern Ireland".
The offences excluded from this Bill, from the scope of the "political offence" exception, all relate to violence, even if it is from the mere possession of explosives or firearms. I think there is a general consensus that offences involving violence should not be regarded as "political". However, to extend the scope of the Bill to offences which do not involve acts of violence would destroy that consensus and undermine the entire credibility of the Bill. For that reason alone I strongly oppose the amendment.
I have a number of other reservations about the amendment. It relates only to an offence in respect of Northern Ireland. All other offences referred to in the Bill apply in respect of all Convention countries, not just one jurisdiction.
The definition of "unlawful organisation" in the Offences Against the State Act, 1939, is extremely broad and covers a non-violent, political organisation. For example, under section 18 (f) of that Act an organisation which "promotes, encourages, or advocates the non-payment of moneys payable to the Central Fund or any public fund or the non payment of local taxation," is regarded as an "unlawful organisation". This type of offence is far too broad. I am sure Deputy Michael McDowell does not want to extradite that kind of individual. Therefore, I oppose the amendment.
Is Deputy McDowell proposing a solution to our unemployment problem by exporting them all?
Acting Chairman
We will disregard Deputy Fitzgerald's comment.
The first point the Minister made, about which she was most emphatic, is the weaker one. Her second point was stronger. The point is that organisations such as the UVF, the IRA and the UFF are not declared unlawful because — I will not use the phrase "boy scouts" because that got my party leader into trouble — they are altar boys.
Altar persons.
We will be in trouble now with the Church, the bishops will be on to us.
Alter egos. The IRA is not declared unlawful because it is a group of people with a particular point of view. All these organisations are engaged in violence, about which the Minister says there is a consensus in this House. There would not be as much violence if there were not such organisations. On many occasions, all one can do is to imprison the godfathers on evidence of membership of the organisation; they will never be caught with their finger on the trigger, with a fingerprint on the explosives or whatever. In respect of scheduled organisations such as Óglaigh na hÉireann, the IRA or whatever vis-à-vis these Schedules which are handed into court — it should not be the case that somebody — Republican or Loyalist — sentenced in Northern Ireland for such an offence comes down to the South, and effectively says he will not serve his sentence. That is wrong and repugnant to the rule of law. We should back up the law in Northern Ireland. As the UVF is unlawful in both jurisdictions nobody should be able to evade justice by moving across the Border.
Amendment, by leave, withdrawn.
I move amendment No. 11:
In page 4, to delete lines 1 to 40, and in page 5, to delete lines 1 to 4, and substitute the following:
"4.— All proceedings under the Principal Act shall be heard by a judge of the High Court and District Court shall have no jurisdiction under the Principal Act.".
We discussed this amendment adequately already with others so I shall withdraw it.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 12 in the name of Deputy Gay Mitchell. Amendments Nos. 13, 14 and 17 are related. Therefore, I propose we take amendments Nos. 12, 13, 14 and 17 together by agreement.
I move amendment No. 12:
In page 5, lines 19 to 21, to delete "a copy of the warrant shall be given to the person arrested, and the warrant shall be shown to him, at the time or, if it" and substitute "the warrant shall be shown to, and a copy of same given to, the person arrested at the time of such arrest or, if the warrant".
This is a technical amendment I moved on Committee Stage. The Minister said she would examine these amendments between then and now. I have nothing to add to what I said on Committee Stage.
The draftsman looked at these amendments because I gave a commitment on Committee Stage that I would ask him to examine them. He is of the view that the existing text of the Bill is correct and that the amendments suggested by the Deputy would not improve it. I do not know what the other party might feel in relation to Deputy Gay Mitchell's amendment. If I felt there was consensus in the House — that other Members were prepared to support Deputy Gay Mitchell — then I could accept them. However, it is important to inform the House that the draftsman considers the amendments would not improve the text.
——or would not disimprove the text.
No, I can accept it.
Amendment agreed to.
I move amendment No. 13:
In page 5, lines 29 to 31, to delete "a copy of the warrant shall be given to the person arrested, and the warrant shall be shown to him, at the time or, if it" and substitute "the warrant shall be shown to, and a copy of same given to, the person arrested at the time of such arrest or, if the warrant".
Amendment agreed to.
I move amendment No. 14:
In page 5, lines 40 to 42, to delete "a copy of the warrant shall be given to the person arrested, and the warrant shall be shown to him, at the time or, if it" and substitute "the warrant shall be shown to, and a copy of same given to, the person arrested at the time of such arrest or, if the warrant".
Amendment agreed to.
Acting Chairman
Amendment No. 15 in the name of Deputy Gay Mitchell. Amendment No. 16 is related. Therefore, I propose we take amendments Nos. 15 and 16 together by agreement.
I move amendment No. 15:
In page 9, line 1, after "judge" to insert "of the District Court assigned to the Dublin Metropolitan District".
I made my point on Committee Stage and have nothing to add. The Minister said she would consider it between then and now.
My response is similar to that I gave to the last set of amendments, in that I gave a commitment on Committee Stage to take another look at the drafting points Deputy Mitchell made. My officials talked to the draftsman in relation to them and he is of the view that they do not add anything and would render the relevant subsections more ponderous. I think I should give that advice to the House. However, I do not have strong views one way or the other and if the House is agreeable, I am prepared to accept both amendments.
Amendment agreed to.
I move amendment No. 16:
In page 9, line 6, after "judge" to insert "of the District Court assigned to the Dublin Metropolitan District".
Amendment agreed to.
I move amendment No. 17:
In page 9, lines 12 to 15, to delete "a copy of the warrant shall be given to the person arrested, and the warrant shall be shown to him, at the time or, if it" and substitute "the warrant shall be shown to, and a copy of same given to, the person arrested at the time of such arrest or, if the warrant".
Amendment agreed to.
I move amendment No. 18:
In page 9, between lines 37 and 38, to insert the following:
"15.— The report under section 6 of the Extradition (Amendment) Act, 1987, in relation to any year beginning with the year 1993 shall be made not later than the 31st day of December in the following year.".
Amendment agreed to.
Amendment No. 19 has been ruled out of order as it does not arise out of Committee Stage proceedings. The Deputy may move to recommit this amendment.
That is one of the issues we would have raised had we been successful in recommitting the Bill.
Amendment No. 19 not moved.
I move amendment No. 20:
In page 11, after the row relating to the Extradition (European Convention on the Suppression of Terrorism) Act, 1987 to insert the following row:
|
No. 25 of 1987. |
Extradition (Amendment) Act, 1987. |
Sections 2, 4 and 5. |
Is the Minister accepting the amendment?
Amendment, by leave, withdrawn.
On a point of order, would it be wise at this stage to try to amend the 1987 Act by including the words "or omission" in the definition instead of amending it in the Seanad and then bringing the Bill back to the Dáil?
I would prefer, if the House agrees, to look at this between now and the time it goes before the Seanad and, if necessary, we can do something about it in the Seanad.
Question proposed "That the Bill do now pass."
I wish to express my sincere thanks to all who contributed to the debate and particularly to the spokespersons for the Opposition parties. We had a good discussion both during Committee Stage and today. I gave certain commitments on Second Stage and Committee Stage and I have lived up to those in so far as I could. Amendments were tabled which I either accepted in full or amended in a small way. I know Deputy Mitchell was joking when he accused me of always paying compliments to my side of the House during Fifth Stage of a Bill. Deputy Fitzgerald has taken me to task for not being complimentary to him on a number of occasions.
The Minister cannot win.
It is a difficult issue but hopefully we have closed any loopholes which were in the existing legislation. Caithfidh mé buíochas a ghabháil le gach uile dhuine a ghlac páirt sa díospóireacht, go speisialta do urlabhraithe na bpáirtithe sa bhFreasúra.
I thank the Minister for accepting some of my amendments. I am pleased that the legislation has passed and have no difficulty in supporting its general thrust. My party's position has never been in any doubt. We made it clear where we stood and have been consistent in our approach to the legislation.
I accept the Minister's assurance that the section 4 difficulties which Mr. Justice Flood highlighted last Friday will no longer exist when this Bill becomes law. I further accept that she will address the District Court difficulties which the judge referred to. I am sure those administrative matters can be sorted out.
One matter we need to stress before the legislation passes is pre-trial publicity in another jurisdiction. I made clear on Second and Committee Stages my view that the Lord Chancellor, the British Home Secretary and the British Attorney General should collectively address this question because it can prejudice trials and put at naught the efforts of this Legislature to pass legislation of this kind. We have come under attack from certain extreme members of another Legislature who referred to parts of Mr. Justice Flood's decision but not to other parts which were within their competence to deal with. I am sick and tired of listening to extreme comments of people who get publicity over the dead bodies of terrorists' victims. They are not bringing the terrorists to justice but are playing into the hands of those who give them a weapon to further advance their cause.
When will those British MPs, who had a particularly strong go at Members of this House in recent days, have the courage to address the question of pre-trial publicity in the way we addressed it which is accepted by journalists as being fair and reasonable? While that problem exists we cannot be certain that the courts will not continue to refuse to extradite people. They should earn their salary and expenses and not point the finger at this House. They should have the courage to take on those journalists and lay down contempt laws which will not make it easy for people to be excused from appearing before the courts in Britain on serious charges.
I support the Bill and hope it will not be delayed in the Seanad. Our stand on terrorism and those associated with it is clear.
I thank the Minister for accepting amendments. My party is disappointed that the Bill was not recommitted in order to address what we see as deficiencies in section 1 in relation to the retrospective application of the new law. It is disappointing that the motion was defeated. It is illogical given that the issue of retrospective application was upheld by the Supreme Court in the Sloan case. It is because we support the legislation that we were pernickety in pushing it to a vote this morning. We have consistently supported the tightening up of extradition legislation. In 1987 Deputy O'Malley foretold the loopholes we are now closing.
We argued for more time on this Bill and unfortunately over the weekend a case arose which raised issues we had little opportunity to address today. However, it would be appropriate to recommit the Bill and discuss the issues on the retrospective application of the new law. Why not get it right this time? As the debates in 1987 show clearly, the loopholes we are now closing were predicted. They have been obvious since 1991. Governments have been lethargic about introducing amending legislation and that is to our collective shame.
Extradition is the story of the slow abandonment of problems of terrorist violence in the minds of Irish people and generations of legislators. It is in keeping with the spirit of the Joint Declaration and taking the gun out of Irish politics that we have moved to close the loopholes in the extradition process. I am disappointed we did not have more time to discuss section 1.
I am glad to note there was no reference to perceived ambivalence in relation to the determination to extradite terrorists.
The Deputy has just raised it.
I am glad there was no such insinuation in the debate. It was unfortunate that the debate started on an unsavoury fashion. While I fully accept the right of any political party to put forward a view as to whether a Bill should be recommitted, the exchanges involving some Members who are not present were unfortunate. When that issue was out of the way the debate was a positive one.
I commend the Minister on the manner in which she was prepared to take on board the views expressed by the Opposition. I commend Deputy Mitchell, Deputy Liz O'Donnell and Deputy Michael McDowell for raising issues with which I was able to identify.
I have an ongoing concern in relation to what appears to be a deliberate and concerted attempt by certain elements in the British media and in the British Parliament to ensure that even before people extradited reach the British shores they are already found guilty. This is unfortunate. Our laws must ensure there is balance at all times, taking into account our determination as a State and as a Legislature to extradite all those accused of terrorist offences. At the same time we have to ensure to the best of our ability that there will be a fair trial. The kind of pre-trial publicity we have seen in the past must be ended. It should go out from this House that we want this done and that we cannot give any guarantees in the absence of those controls that, even where there is a strong case, extradition applications will be treated favourably.
It is a sign of a growing maturity that this debate has taken place in such a calm atmosphere. Positive contributions were made by all sides. When we consider the previous debate on extradition and all the hype and intimidation on that occasion, we will see that today's debate lead to a better discussion. I echo the sentiments expressed by a number of other Members. In the recent past the criticism has been expressed by British politicians and by the British press that Irish politicians are soft on terrorism. Nothing could be further from the truth.
We have dealt with this matter in a very professional way. We are serious about what we are doing and that message must go out loud and clear.
Question put and agreed to.
Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.