I move: "That the Bill be now read a Second Time."
I regret the Opposition is not in the House. Woodrow Wilson, the former US President, once said that he believed in democracy because it releases the energies of every human being. Obviously, the Opposition's energy has been sapped and we have not even had the general election yet.
The purpose of the Bill is to enable the State to ratify two European Union conventions on extradition, the 1995 convention on simplified extradition procedures between member states of the European Union and the 1996 convention on extradition between member states of the European Union. The Bill also proposes some substantive and procedural changes to our general extradition law.
The Bill will facilitate more effective co-operation in combating crime by facilitating the bring ing to justice of suspected criminals who seek to avoid prosecution by leaving the jurisdiction where the crime has been committed. It forms part of a package of measures to ensure a coherent and effective international response to the threat of terrorism in the changed world after the appalling attacks on the United States on 11 September. The Justice and Home Affair's Council of 20 September 2001 urged member states to take all the necessary steps to bring the two conventions on extradition into force on 1 January 2002. As Deputies will be aware, the JHA Council on 20 September and the European Council on the following day approved the commencement of negotiations among member states on a framework decision for a European arrest warrant. Intensive negotiations are continuing at official level on this proposal.
I cannot, at this stage, say what shape the final instrument will take. There are divergent views among the member states on how best to achieve the desired result. Our position in the negotiations so far has been that the proposals which the Commission has spent two years preparing raise difficulties. In normal circumstances, these proposals would require detailed examination and discussion and they could not, in practical terms, be adopted in the broad framework proposed by the Commission in a period of about two and a half months. We have, therefore, agreed with the majority of member states that work should concentrate on identifying clearly the areas where agreement can be reached within the short timespan envisaged. The negotiations are ongoing and discussions in a number of important areas have yet to be advanced to the stage where it can be said that consensus is close.
Terrorism poses a serious threat to the lives of people, the economic and social stability of countries and even to the rule of law and democracy itself – indeed, it is a threat to the very fabric of society. In the circumstances, it is incumbent on all of us to examine ways of improving co-operation in combating crime and to ensure that fugitives cannot escape justice by fleeing to another country. In this context, the proposals in the Bill to simplify extradition arrangements between member states of the European Union are indeed timely and welcome.
Before proceeding to examine the provisions in the Bill, I will briefly sketch our existing extradition provisions. Our primary legislation is the Extradition Act, 1965, which provides for both the simplified arrangements Ireland operates with Britain and Northern Ireland – Part III – and our extradition arrangements with other countries – Part II. Part II is modelled on the 1957 Council of Europe convention on extradition to which Ireland is a party. 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 and Australia, with whom we have extradition agreements. In addition, Ireland is a party to a number of international conventions which provide special extradition arrangements in relation to specific offences – for example, in the aviation field. The Extradition Act, 1965, has been amended on a number of occasions, twice in 1987 and once in 1994.
The Extradition (European Convention on the Suppression of Terrorism) Act, 1987, is based on the European Convention on the Suppression of Terrorism. 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. The terrorism convention was drawn up in the light of the prevalence of terrorist attacks and the practice of their perpetrators to flee the country in which they had carried out the attack. The underlying principle of the terrorism convention 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.
The second Extradition Act in 1987, the Extradition (Amendment) Act, 1987, contains safeguards in relation to extradition to Great Britain or the North of Ireland by giving the Attorney General power to veto a request for extradition unless he is satisfied that there is a clear intention to prosecute and that the intention to prosecute is founded in the existence of sufficient evidence.
The Extradition (Amendment) Act, 1994, amended, clarified and extended the range of offences that could not be regarded as political for extradition purposes.
I will now to turn to the present Bill. By way of introduction, the 1995 Convention on Simplified Extradition Procedure between the member states of the European Union provides for a simplified procedure where the person sought consents to his or her surrender, such consent to be given before the High Court which must be satisfied that the consent is given voluntarily and in full awareness of the consequences. Once consent is given and, where the person claimed is a citizen of Ireland, the Minister for Justice, Equality and Law Reform agrees, the person will be extradited.
A person who has consented to his or her surrender may also renounce his or her right to the Specialty Rule, which is the rule whereby a person extradited for one offence may not be tried for other offences committed before his or her extradition, such renunciation to be recorded before the High Court. The consent of the Minister for Justice, Equality and Law Reform is also required.
The 1995 convention also provides that consent or renunciation may not be revoked but allows parties to opt out of this requirement by making a declaration to that effect on ratification. It is proposed that Ireland will make such a declaration.
The 1996 convention relating to extradition between the member states of the European Union, as well as extending the range of extraditable offences, also provides for the further improvement and simplification of procedures in a number of respects. Extradition requests, documents and correspondence may be sent by facsimile transmission provided the facsimile machine is fitted with a cryptographic device to ensure authenticity and confidentiality. Changes are also proposed in relation to the authentication and certification of documents. The convention also requires all states to designate a central authority to be responsible for transmitting and receiving extradition requests and supporting documentation, and it is proposed that the Minister for Justice, Equality and Law Reform will be the central authority for Ireland.
The Bill also gives effect to a number of changes in our general extradition law. All extradition proceedings will in future be held in the High Court. Evidence may be given by a witness outside the State through a television link or by affidavit in any extradition proceedings. The Bill also deals with other miscellaneous matters such as foreign seals, laying of orders before the Houses of the Oireachtas and the content of such orders.
Both conventions, to which the Bill will give effect, include a provision that the terms of the conventions will not affect more favourable bilateral arrangements already in existence between any member states. This means that, as far as implementation of the conventions is involved, the backing of warrants procedure with the UK contained in Part III of the 1965 Act will not be affected. However, the Bill will bring about a number of changes in our extradition arrangements with the UK in addition to those changes to our general extradition law which I have already mentioned. For example, there is a new definition of correspondence to deal with difficulties that may arise because acts that constitute offences by the law of both states may be designated differently. It is now being provided in effect that the offence in the State need not be in the same category or of the same description as the offence in the UK. Offences will correspond where the acts of the person sought would constitute an indictable offence if committed in Ireland or are punishable on summary conviction by at least six months imprisonment. In addition, the UK has a provision in the 1994 Criminal Justice and Public Order Act making revenue offences extraditable in the context of the backing of warrants arrangements with this country and this Bill will do likewise. Revenue offences will also be extraditable between Ireland and other member states of the European Union by virtue of the 1996 convention.
Regarding the sections of the Bill, the first substantive section is section 4. This section provides that the Minister for Foreign Affairs may, by order, designate countries that have adopted the convention of 1995. The 1995 convention is a European Union convention and open only to EU member states.
Section 5 deals with provisional arrest. This section amends section 27 of the 1965 Extradition Act and implements Article 4 of the 1995 convention. It sets out the information that must be provided to enable the simplified procedure to go ahead. This information has to be communicated also to the arrested person who must also be informed of his or her right to consent to surrender.
Section 6 relates to consent to surrender. It inserts a new section 29A into the 1965 Act. It provides that where a person in extradition proceedings is brought before the High Court under a provisional arrest warrant or under a warrant of arrest, he or she may consent to being surrendered to the convention country concerned. The procedure is elaborated on in subsections (2) to (4) of the new section. Where the person claimed is a citizen of Ireland, the Minister has to consent. This is provided for in subsections (2)(f2>e) and (3)(f2>f).
Subsection (5) of the new section provides that if a person who is provisionally arrested consents to his or her being surrendered, the Minister shall inform the convention country concerned not later than ten days after the person is arrested. This is also a requirement where the person does not consent to being surrendered. Subsection (6) of the new section provides that a person who has consented to his or her surrender may subsequently, but before the making of a surrender order by the Minister, withdraw such consent. Section 6 also makes a technical amendment to section 14 of the 1965 Act to take account of the new consent provisions.
Section 7 concerns a person's option to waive his or her right to the rule of specialty, which provides that a person extradited for one offence may not be tried for other offences committed before his or her extradition unless certain conditions are complied with. This section amends section 20 of the 1965 Act and inserts a new section 20A. A person who has consented to his or her surrender may also waive his or her right to the specialty rule, such renunciation to be recorded before the High Court. The consent of the Minister for Justice, Equality and Law Reform is also required to such renunciation.
I draw Deputies' attention to the fact that, under the Article 7 of the 1995 convention to which this section gives effect, consent and renunciation of speciality must be given before the judicial authorities of the requested state. There is also a provision for a waiver of specialty in Article 10 of the 1996 convention in certain limited circumstances contemplated by Article 10 but in that case the waiver is to be given after his or her surrender before the judicial authority of the requesting state. I will deal with this in more detail when I come to discuss section 15 of the Bill.
Section 8 deals with consent to surrender and provides for the insertion of a new section 33A in the 1965 Act which sets out the procedure where consent to surrender has been given – Articles 10 and 11 of the 1995 convention deal with surrender. The date of consent will be the date on which the consent is made and recorded before the High Court.
Subsection (1) of new section 33A provides, in accordance with the convention, that the Minister shall notify the requesting country of that decision within 20 days of its making and subsection (2) provides that the Minister shall make an order for the surrender of the person sought not later than 20 days after the giving of notification. Subsection (4) of the new section provides for the person to be released if he or she has not been surrendered to the requesting state within the specified period. However, subsection (3) allows a derogation from this period if surrender within the specified period has been prevented by circumstances beyond the control of the Minister.
Part 3 of the Bill, i.e., sections 9 to 19, gives effect to the 1996 convention relating to extradition between member states of the European Union. I have already described the purpose of the 1996 convention.
Section 9 inserts a new subsection (1B) into section 3 of the 1965 Act and defines "Convention country" for the purposes of amendments being made to that Act by Part 3 of this Bill.
Subsection (1C), also being inserted into section 3 of the 1965 Act, provides for a central authority. The explanatory report to the 1996 convention dealing with the designation of a central authority by each member state states that "the central authority will be a focal point for transmission and reception of extradition requests and necessary supporting documents".
Section 10 provides that the Minister for Foreign Affairs may, by order, designate countries that have adopted the convention of 1996. The 1996 convention is a European Union convention and open only to EU member states.
Section 11 amends section 10 of the 1965 Act and gives effect under a new section 10(1A) to the reduction in the threshold for extradition as between contracting states provided for in Article 2(1) of the 1996 convention. This provides that offences will be extraditable if they are punishable by six months imprisonment in the requested member state and 12 months in the requesting member state. The present general threshold, as provided for in section 10(1) of the 1965 Act and Article 2 of the 1957 European Convention on Extradition, is 12 months in both states. Where extradition is sought in respect of a person who has been convicted and sentenced for such an offence, he or she must have been sentenced to at least four months imprisonment.
It is also being provided in a new subsection (2A) that where extradition is granted for an offence that complies with the minimum sentence requirements, i.e., 12 months and six months in the requesting and requested state, respectively, extradition may also be granted for certain other offences, i.e., minor offences, that fail to comply with this requirement.
Section 12 concerns the political offence exemption. This section amends section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987. Article 5 of the 1996 convention requires that, as between contracting countries, no offence may be regarded as a political offence but it allows member states to confine this requirement to the offences referred to in Articles 1 and 2 of the Suppression of Terrorism Convention. It is proposed that Ireland, on ratification, will make a declaration to this effect setting out the offences under our law that may not be political, for example, the offences set out in section 3 of the 1987 Suppression of Terrorism Act and in the Schedule to the 1994 Extradition Act.
The current position in our law in regard to the political offence exception is that since all of the EU states are parties to the Suppression of Terrorism Convention and orders applying Part II of the 1965 Act have been made in relation to all EU states, our Extradition (European Convention on the Suppression of Terrorism) Act, 1987, as amended by the Extradition Act, 1994, will apply – without more – to all EU states, there is, therefore, no need to include any political offence provision in the Bill in relation to those states. This section is being included to cater for the possibility that, post-enlargement, new EU member states may become parties to the Convention on Extradition between Member States of the European Union, which are not a party to the Convention on the Suppression of Terrorism.
Section 13 removes the present bar on extradition for revenue offences. This section gives effect to Article 6 of the 1996 convention which makes revenue offences extraditable between EU states. Section 13 of the 1965 Act contains an absolute bar on extradition for revenue offences. The amendments being made to the 1965 Act by this provision will also enable simple amendments to be made to existing bilateral extradition agreements – for example, those we have with the United States of America and Australia – to provide for extradition for revenue offences, if that is so desired. It will also be possible to allow for extradition for revenue offences to be included in any future bilateral agreements that may be negotiated. I have already stated that the UK has already made provision in its legislation – the Criminal Justice and Public Order Act, 1994 – for revenue offences to be extraditable in the context of the backing of warrants arrangements with this country. The amendments in subparagraph (c) of the section will do likewise in our law.
Section 14 is a provision dealing with cases of pardon or amnesty. This section inserts a new section 18A in the 1965 Act. It provides that extradition shall not be granted where the person claimed has been granted a pardon under Article 13.6 of the Constitution, become immune by virtue of any amnesty or pardon in accordance with the law of the requesting country or, by virtue of any Act of the Oireachtas, become immune from prosecution or punishment for the act for which extradition is sought. The explanatory report to the 1996 convention dealing with this matter states,inter alia, “This Article [Article 9] provides that an amnesty declared in the requested Member State, in which that State had competence to prosecute the offence under its own criminal law, will constitute a mandatory reason for not granting extradition.”
I have already referred to the fact that section 15 modifies certain aspects of the rule of specialty for the purposes of the 1996 convention. Members will recall from what I said earlier that the 1995 convention and section 7 of the Bill dealt with the renunciation of specialty where a person sought consents to surrender. Section 15 amends section 20 of the principal Act and provides that a person extradited for one offence may be tried or prosecuted for other offences committed before his or her extradition if the offences do not give rise to imprisonment, or, where imprisonment is involved, if the person has expressly waived the benefit of specialty, such waiver to be made before the competent judicial authorities of the requesting state and to be shown to have been made voluntarily and in full awareness of the consequences.
As indicated, extradition to a convention country for an extraditable offence of a person claimed can also extend to offences which are not punishable by deprivation of liberty or offences where, upon conviction, the person might be liable to a term of imprisonment and another penalty that does not involve imprisonment and where the High Court is satisfied that the other penalty only, and not the term of imprisonment, will be imposed should he or she be convicted. The provision also comprehends offences involving measures not involving the deprivation of liberty, including a financial penalty or a measure in lieu thereof, even if failure or refusal to submit to any measure or comply with any such penalty may involve restriction of his or her personal liberty. On the other hand, in the case of an offence where imprisonment is involved, the person may only be proceeded against if he or she has expressly waived the benefit of specialty after his or her surrender and before the competent judicial authority of the requesting state and, in the case of an Irish citizen, the Minister also consents. Article 7(2) of the convention provides that a member state may declare that it will authorise extradition of its nationals only under certain specified conditions. Ireland's declaration is this respect will provide for the need for such consent.
Section 16 addresses the application of rule of specialty in the State that is the reverse of the situation I have just discussed in the context of section 15. This section amends section 39 of the 1965 Act which deals with the application of the rule of specialty in the case of persons extradited to Ireland and contains analogous provisions to the previous section. Article 10 of the 1996 convention provides that the consent of the requested state is not necessary in relation to those proceedings unless, of course, that state makes a similar declaration to Ireland in relation to its own citizens. Again a person has to expressly waive the benefit of specialty. Such waiver must be made before a judge of the High Court who has to be satisfied that the person consented voluntarily and in full awareness of the consequences.
Section 17 covers authentication of documents. Article 15 of the 1996 convention, which deals with authentication, aims at simplifying the formal requirements in relation to documentation for extradition. The general principle established is that any document or copy thereof transmitted for the purposes of extradition between convention countries shall be exempted from authentication or any other formality. A new subsection (2) is being inserted into section 25 of the principal Act and provides that for the purposes of an extradition request from a convention country, a document shall be deemed to be an authenticated copy if it has been certified as a true copy by the judicial authority that issued the original or by an officer of the central authority duly authorised to do so.
Section 17(b) of the Bill substitutes a new section for section 37 of the principal Act to simplify the requirements to be met for extradition documents from non-convention countries – subsection (1) – and from convention countries – subsections (2) and (3) – to be received in evidence without further proof. In respect of non-convention countries, the document will be required to be signed by a judge, magistrate or officer of the requesting country and to be certified by being sealed by another authority. The range of official seals which may be used for this purpose is being extended to facilitate the operation of the section. In respect of convention countries, it will be sufficient for a copy of a conviction and sentence order or of a warrant to be certified either by the judicial authority that issued the original or by the central authority. Other extradition documents from a convention country purporting to be copies will be received in evidence without further proof.
Section 18 allows for the facsimile transmission of documents. This section inserts a new section 23A in the 1965 Act and is intended to give effect to Articles 13(3), (4) and (5) of the 1996 convention. The central authority provided for in section 9 is given the authority to receive extradition requests and documents from convention countries by fax. In order to guarantee the authenticity of extradition documents, the central authority of the requesting member state shall state in its request that it certifies that the documents transmitted in support of that request correspond to the originals. To ensure confidentiality and authenticity use will be made of cryptographic devices. Where the central authority in the State is for some reason not satisfied that the documents correspond with the originals, it may require the central authority of the requesting country to provide the original document or a true copy thereof.
Section 19 deals with transit of persons sought through Ireland. This section amends section 40 of the principal Act and is intended to give effect to Article 16 of the 1996 convention which deals with the transit of a surrendered person through Ireland from one contracting party to another. Any request for transit by a convention country must contain the information specified in new subsection (1A) of section 40, that is, information regarding the person's identity, whether there exists an arrest warrant in respect of the person being transited, the nature and description of the offence for which he or she is sought, a description of the circumstances in which the offence was committed, the date and place of its commission and other relevant information. A new subsection (2A) is also inserted into section 40 to deal with the unscheduled landing of an aircraft in the State which has on board a person who is being conveyed to a convention country upon his or her surrender to that country pursuant to extradition proceedings.
I will now turn to Part 4 of the Bill – sections 20 to 26 – which provides for a number of substantive and procedural changes to our general extradition law.
Section 20 provides for all extradition proceedings to be moved to the High Court. This is a change from current law where the initial application for the extradition of persons from the State is made to the District Court. In 1994 such applications were centralised in the Dublin Metropolitan District Court. However, since nearly all extradition cases end up in the High Court in any event, it is considered that the consolidation of all extradition proceedings in the High Court would provide for a more efficient and expeditious hearing of such cases. Since 1994 all bail applications in extradition cases must be taken in the High Court. The Presidents of the High Court and the District Court have been consulted and there has been no objection to the proposal.
Section 21 amends the procedure for the laying of orders before the Houses of Oireachtas. It amends section 4 of the 1965 Act. The effect of this section is to revert to the original requirement in that Act which provided that Government orders entered into force when they were made but were then laid before each House of the Oireachtas which could annul them if a resolution to that effect was passed within 21 days. Most such orders concern the accession of states to existing extradition agreements, and the requirement since 1987 that such orders required a positive resolution in each House of the Oireachtas has led to delay and administrative difficulties in the Department of Foreign Affairs where these orders are prepared.
Section 22 provides for giving evidence by affidavit. It inserts a new section 7B into the 1965 Act and provides that evidence as to any matter to which proceedings under that Act relate may be given by affidavit, or by a statement in writing that purports to have been sworn by the deponent in a place other than the State and in the presence of a person duly authorised to attest to the swearing of such a statement by the deponent. The High Court may, if it considers that the interests of justice so require, direct that oral evidence be given of the matters described in the affidavit or statement.
Section 23 amends section 8 of the 1965 Act. It inserts a new subsection (1A) and substitutes new subsections (3), 3(A) and 3(B) for the current subsection (3). It also makes a technical amendment to subsection (8). The purpose of the changes is to deal with difficulties which have arisen in practice from the current wording of section 8. For example, the existing section has been interpreted as requiring that every order made must embody the terms of the extradition agreement. Thus, as is most often the case, if the purpose of the order is merely to apply Part 2 to a new state on the accession of that state to the 1957 European Extradition Convention, for example, the text of the convention is set out in the order despite that the text will be available in the previous order which will be referred to in the new order and cited together with it.
The amendments to the section propose that, when an extradition agreement is made with another state or states, the text of the agreement will be included but that, when Part 2 is applied to a new state on the accession of that state to an existing agreement, the text of the agreement will not be included in the order. However, the order will recite or embody the terms of any reservation or declaration entered to that agreement by the country to which the order applies. When an amendment to an existing agreement is made the order need only contain the text of the amendment.
The current section 8(8) of the principal Act requires the publication inIris Oifigiúil of the text of the orders made. The proposed new subsection (8) will merely require notice to be given in Iris Oifigiúil that the order has been made. Overall these changes will mean a more streamlined and efficient procedure than has existed before.
Section 24 provides that evidence may be given through television link by a person outside the State. It amends section 29 of the Criminal Evidence Act, 1992, to provide for the possibility of a person, other than the person whose extradition is being sought, being able to give evidence from abroad in extradition casesvia a live television link. Leave of the court will be required.
Section 25 deals with the issue of foreign seals. Section 21(3)(a) of the principal Act is substituted by a new provision to take account of the fact that some countries do not have ministerial seals and seal documents under the seal of a ministry or Department. It is now being provided that a seal of the relevant Minister, ministry or Department is sufficient. This amendment also requires a consequential amendment to be made to section 39(2) of the 1965 Act and this is provided for in paragraph (b) of the section.
Section 26 deals with any difficulty which may arise with correspondence of offences in Part III cases, that is, the backing of warrants arrangements with the United Kingdom. It provides that correspondence exists where the act constituting the offence in the United Kingdom would, if done in the State, constitute an offence under the law of the State, being an offence which is punishable on indictment or punishable on summary conviction by imprisonment for a maximum term of not less than six months. This definition will mean that, while the offence in the State may not be in the same category or of the same description as the offence in the United Kingdom, it will still be an offence for which a person may be extradited provided the act constituting the offence would, if done in the State, constitute an offence of the same gravity here.
Over the years the 1957 European Convention on Extradition has been the foundation which has served states well in dealing with extradition matters. However, as we develop and reinforce co-operation in the judicial area between member states of the European Union, it is inevitable that we should consider ways to update and improve arrangements, and the 1995 and 1996 EU extradition conventions mark another step in ensuring a more streamlined extradition procedure between member states. It is also in keeping with my strong commitment to update and modernise our criminal law that I present the Bill to the House. It will provide an effective and modern legal instrument to assist in bringing to justice suspected criminals who leave the jurisdiction where the crime has been committed. I commend the Bill to the House.