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Dáil Éireann debate -
Wednesday, 17 May 2000

Vol. 519 No. 3

Criminal Justice (United Nations Convention Against Torture) Bill, 1998 [ Seanad ] : Report Stage.

Amendment No. 1 in the name of Deputy O'Sullivan arises out of committee proceedings. Amendment No. 7 is consequential and the proposal is to discuss amendments Nos. 1 and 7 together, by agreement.

I move amendment No. 1:

In page 3, line 27, after "Act" to insert "and, with effect from such date as is prescribed by the Minister, means that Convention as amended pursuant to General Assembly Resolution 47/111 of 16 December, 1992, the text of which, in the English language, is for convenience of reference set out in the Second Schedule to this Act”.

I resubmitted this amendment following Committee Stage. The Minister indicated on Committee Stage that he would look at this matter again before Report Stage with the possibility of tabling an amendment on behalf of the Government. The Government has not tabled an amendment so I assume the Minister has not found it possible to accede to the proposal I made on Committee Stage which was to include General Assembly Resolution 47/111 of 16 December 1992 in the Bill because it is a General Assembly resolution which was passed subsequent to the original proposals of the convention we are now proposing to ratify. It would seem logical, therefore, to include it in the text of this legislation which will become law here. I would like the Minister to explain the reason he was not able to bring forward an amendment.

On Committee Stage Deputy O'Sullivan raised the question of whether General Assembly Resolution 47/111 of 16 December 1992 should form part of the convention to be included in the Schedule to the Bill. The main effect of the resolution would be to provide funding for the committee established by Article 17 directly by the United Nations instead of through contributions by state parties to the convention. This matter is complicated because although the resolution predated our signature to the convention, it has still not come into effect and indeed it may be some time, if ever, before the amendment is accepted by the number of states required before it can enter into force.

The advice to me had been that it would not be appropriate, therefore, to include the resolution in the Schedule. Prompted by Deputy O'Sullivan's amendment, however, I asked my officials to re-examine this matter in consultation with the Department of Foreign Affairs and with the Office of the Attorney General, and I undertook to table an amendment on Report Stage to include the resolution in the Schedule if the advice to me was that it was legally appropriate to do so.

I have had this matter re-examined since Committee Stage and I have been reassured that it is neither necessary nor appropriate to include the resolution in the Schedule. The resolution still has not come into effect and indeed it may be some time, if ever, before it does so. Not including the resolution in the Schedule would have no legal consequence for our ability to apply its terms at some future date if and when it becomes effective, whereas including it in the Schedule would, I am told, be totally inappropriate for a resolution which has not come into effect.

I regret that in the circumstances I cannot accept the Deputy's proposal but I assure the House that I am acting on technical legal advice in not doing so.

I want to pursue this matter a little further in relation to the way it will be implemented when the necessary number of signatories have been obtained. The Minister indicated that he would propose to the Minister for Foreign Affairs and the Government to make the necessary declarations, when that time would come, through Articles 21 and 22. Will the Minister give a reassurance that it is his intention and that of his Department to ensure that we comply fully with the resolution when the necessary number of states have agreed it?

Obviously it would be a matter for the Minister for Foreign Affairs of the day to decide this by way of recommendation to the Government. My understanding of the position is that it could be easily implemented then, provided that the Government would make such a decision.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 2 is also in the name of Deputy O'Sullivan. Amendment No. 3 is related and the proposal is to discuss amendments Nos. 2 and 3 together, by agreement.

I move amendment No. 2:

In page 4, line 10, after "but" to insert ", without prejudice to any international instrument to which the State is a party on the commencement of this Act or to any enactment which may or does contain provisions to the contrary,".

At the end of Committee Stage debate the Minister suggested that he would come back to us in relation to the matter Deputy Higgins and I raised by way of amendment. It concerns the question of torture and what is lawful in some countries and not in others. We had some debate on practices which we would consider to be entirely abhorrent but which may be lawful in some states. We wanted to make sure that this legislation goes as far as possible in terms of ensuring that the State can take every action possible with regard to such abhorrent acts and that, in this regard, we would push the boat out as far as possible in relation to the convention. After a fairly lengthy debate on Committee Stage the Minister said he would consider coming back to us on Report Stage to see whether anything further could be done.

I raised the question of the way other countries may have dealt with this issue and whether other countries had been able to find a way around adapting the legislation to domestic law. Has the Minister had an opportunity to determine whether any other countries have been able to incorporate this concern into the way they brought the convention into their domestic legislation?

(Mayo): I would like to join Deputy O'Sullivan in expressing concern on this particular aspect of the Bill. This is a good Bill. We support the thrust of what it purports to do and we want to see it enacted as quickly as possible. The Bill contains a definition of torture with which we all agree. It states that torture means an act or omission by which severe pain or suffering, physical or mental, is inflicted intentionally on a person for such purposes as obtaining from that person or another person information or a confession, punishing that person for an act which the person concerned or a third person has committed or is suspected of having committed, or imtimidating or coercing that person or a third person, or for any reason based on any form of discrimination. The definition provides that it does not include any such act that arises solely from, or is inherent in or incidental to, lawful sanctions.

That is the net point we are making. There is obviously an exclusion clause here by virtue of the fact that certain sanctions that are manifestly brutal by their very nature are lawful in other countries, such as mutilations and amputations of a hand or a finger. They are lawful sanctions, particularly in many of the Islamic countries. The sanctions are imposed by court order and are duly executed.

We debated this matter at length on Committee Stage and the Minister replied that it was a matter for the courts to decide and that this House does not have an obligation, or indeed a right, to legislate for other jurisdictions. We have a right to legislate for our own jurisdiction and it is our job as the elected Parliament, the law making body, to ensure that we set down clear definitions in relation to what are lawful sanctions. These are universally accepted by virtue of the definition in the Bill and we are seeking to ensure the definition we are embracing by virtue of this legislation and endorsed in the convention is rigidly adhered to and that there is no exclusion clause.

This matter was discussed in detail on Committee Stage and I believe I indicated to the committee at that point that even after in-depth consideration I could not offer any solace to Opposition Deputies in respect of these amendments. I have again considered the excellent and well-intentioned contributions of the committee but I remain of the view that my approach is the best one and I do not propose to accept the amendments.

The Deputies are seeking to ensure that the defence of lawful sanction will not be available in relation to acts carried out which are contrary to established tenets of international or Irish law. As I pointed out on Committee Stage, the same understandable concern was considered by the drafters of the convention. They recognised this exception might be interpreted so as to allow a state to practise methods which would normally be regarded as torture by making them lawful sanctions under its own legal system. On the other hand, however, they were faced with the situation that while the convention was intended to strengthen the prohibition on torture in international law, it was not intended to lead to a reform of the system of penal sanctions in different states and if that had been the intention, the convention would have been unacceptable to a number of countries. The drafters decided to leave open the definition of lawful sanctions in the knowledge that it would be left to the courts to decide in any given case what was lawful and what was not, having regard, as appropriate, to international law.

My approach to incorporating the convention into Irish law generally has been to follow the wording and approach of the convention as closely as possible which is what I have done in this case. My approach leaves it open to the courts to determine whether what is presented as lawful is genuinely lawful. In such circumstances, a court can, for example, reject a defence put forward by a brutal regime of dubious lawfulness. On Committee Stage I was asked whether other jurisdictions have found a solution to this dilemma. I am not aware of any satisfactory solution. I am aware that one approach often suggested is to qualify the defence by reference to international instruments in a somewhat similar way to that suggested in Deputy O'Sullivan's amendment. I indicated to the committee my concerns about that approach, in particular the fact that international conventions arise in the context of a binding international agreement on states and, at least in this State, do not establish criminal culpability.

Accordingly, I have chosen an approach which leaves it to a court to decide in what circumstances criminal culpability arises. This approach does not prevent a court from taking into account any international agreements which are applicable in this State and which the court considers would leave no ground for a defence of lawful sanction in relation to a criminal charge of torture.

On Committee Stage, I pointed out difficulties with the proposed amendments which have been resubmitted. In Deputy O'Sullivan's amendment, the legal effect of the reference to "without prejudice to any international instrument . or enactment" would probably be no more than the creation of the statement of the obvious – that such instruments are not affected by the section. It is confusing to add such a reference and I would be concerned at the creation of such confusion. The reference to international instruments could cause problems in a definition of criminal behaviour, as I already mentioned.

I would also have difficulties with the reference to domestic enactments, as it could raise doubts as to whether sanction prohibited by our law would have to be deemed unlawful in accordance with the section, if committed in another country. This could mean, for example, that an executioner performing his functions in the United States of America could be prosecuted under this section because the death penalty was finally abolished as a sanction in this country in the Criminal Justice Act, 1990. We might abhor the death sentence in this country but that does not give us the right to decide that a person acting in accordance with the legitimate law of his or her land should be liable to criminal prosecutions here. I understand the good intentions of Deputy Jim Higgins's amendment but I am afraid it does not achieve the clarity he is seeking. It is simply a circular definition.

I am also conscious that the intention behind the convention and, therefore, behind the Bill, is not to ensure that all the possible cruelties of the world can be prosecuted in this State but rather to provide a framework for the prosecution or extradition of persons in cases which may be important in the context of the international effort to bring persons who engage in torture to justice. The Bill does this unequivocally. I realise this is a complex matter and I understand the concerns of Deputies Higgins and O'Sullivan. However, these concerns are best met by my approach. I hope that in the circumstances, the Deputies will understand the position and realise that I cannot accept their amendments.

The Minister is saying he will leave the courts to interpret what is difficult for his draftspersons to put into law. Is this not transferring the difficulty to the courts who must interpret this legislation? It would have been better to have devised unequivocal wording rather than leaving the interpretation of the legislation to the courts.

Amendment put and declared lost.

(Mayo): I move amendment No. 3:

In page 4, line 11, after "sanctions" to insert "provided such act or sanctions do not contravene the definition of torture assigned to it by this section".

I will press the amendment because, as Deputy O'Sullivan said, the Minister is effectively placing the onus to make a decision on the courts. The matter can only be brought before the courts if it is referred by someone. Obviously the State is happy with the current position and has no intention of doing this. Who will bring such a case to the courts to decide whether there has been a contravention of the convention?

Amendment put and declared lost.

I move amendment No. 4:

In page 4, between lines 22 and 23, to insert the following:

"(3) A person, other than a person referred to in subsection (1) or (2), who carries out an act of torture on another person, whether within or outside the State, shall be guilty of an offence of torture, but shall be liable to be prosecuted in the State if that person or the victim of the offence is an Irish national or if that person subsequently enters the State or if the offence was committed in or has any other substantial connection with the State.”.

We debated this matter on Committee Stage. The purpose of the amendment is to extend the scope of the Bill beyond public bodies to cover what might be described as private torture. I have acknowledged that it is difficult to draft appropriate wording in this regard but it is permitted under the UN convention to allow national laws to offer a wider definition of torture. I recognise there are limits to a worldwide unilateral Irish prohibition of purely private torture which is why I have inserted a requirement of connection with the State.

The Minister responded to this on Committee Stage and said it would be difficult to implement such a provision from the point of view of our State because it would extend the scope of the Bill too much. However, I resubmitted the amendment to discuss the matter further and see if it is possible to extend the scope of the Bill. There are reports of widespread torture in various parts of the world which is not state torture but is organised by groups. There is concern that there is no way to deal with private torture under UN conventions which only deal with torture carried out by or on behalf of a state. I am anxious to discover if it is possible to extend the scope of the Bill to include what might be described as private torture.

This amendment seeks to extend the scope of the Bill to non-state torture. The issue was discussed fully on Committee Stage. The definition of torture in the Bill gives full effect to what is contained in the United Nations convention which specifically recognises the peculiarly evil nature of state sponsored or condoned torture and the need for an international system for the prosecution of such torture. Non-state torture is another matter.

In the normal course, torture already constitutes a serious offence under our criminal law. The Non-Fatal Offences Against the Person Act, 1997, updated our law in the area of non-fatal offences generally. It includes a wide range of offences for which heavy penalties are prescribed. Accordingly, a person committing physical acts of torture here would be amenable to the criminal law. Nor could persons committing acts of torture outside this jurisdiction find a safe refuge here as such offences are, in all probability, likely to be extraditable. The important distinction is that the international community has not identified the need for an international system of prosecution of such offences.

The most often quoted case of non-state torture which should be criminalised is the phenomenon of paramilitary punishment beatings or kneecappings currently occurring in Northern Ireland. Our jurisdiction over such behaviour is already established by the Criminal Law (Jurisdiction) Act, 1976. Accordingly, including such behaviour in this Bill, in so far as acts committed in Northern Ireland are concerned, would be largely a duplication of law. I strongly believe that extending the scope of this Bill to non-state torture would dilute its importance and purpose and could have unforeseen consequences for its application when enacted. This Bill is, and should be seen as, exceptional legislation to deal with exceptionally abhorrent behaviour. In the circumstances, my position on the matter has not changed and I cannot accept the amendment.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.