I move: "That the Bill be now read a Second Time."
The importance of co-operation between member states' operational police is recognised by the treaty on the European Union. Common action in this field reflects a Union objective of providing citizens of member states with a high level of safety from serious crime, in particular from terrorism, drug trafficking and other criminal activity. The Government fully subscribes to this objective.
Joint investigation teams have been a feature of international co-operation in investigating cross-border crime for many years, especially in the area of organised crime. They have generally been set up on the basis of understandings between the responsible competent authorities, without an internationally agreed framework for establishing and operating the teams. This Bill will enable effect to be given in Irish law to an agreement at European Union level that attempts to ensure that international boundaries are not used by criminal gangs to their advantage. Organised criminal groups exploit modern phenomena such as globalisation, an increasingly border-free world and rapid technological advances in computers and communications. Their operations inflict harm on citizens and societies worldwide, as well as threatening economic and social stability. Crime does not respect national borders. Organised criminals have become increasingly more sophisticated and regularly use EU-wide or international networks to carry out their activities.
Faced with this reality, EU Governments are aware that they cannot effectively tackle international organised crime by relying solely on national law enforcement agencies. At the heart of the European fight against organised crime is better and closer co-operation between the national law enforcement agencies, particularly national police services. In December 1998, the European Council at Vienna agreed an action plan on how best to make the Union an area of freedom, security and justice for its citizens. The Tampere European Council took a further step in October 1999 by deciding on a comprehensive approach to reinforce the fight against serious crime. This included a number of new initiatives designed to foster practical police co-operation. For example, a European police college was established to train the next generation of senior police officers, enabling them to get to know their counterparts in other European countries and to become familiar with working in a European context. The college has opened initially as a network of national police colleges.
Other Tampere initiatives included the creation of a task force of European police chiefs. This has helped to create personal links between the heads of national police services in EU countries. Arising from this, chiefs can more easily lift the telephone to discuss practical problems and joint operations with their opposite numbers in neighbouring and nearby countries. The regular meetings of the police chiefs should result in a more spontaneous input and closer co-operation between national police services in EU member states.
The European Council was anxious to ensure that maximum benefit should be derived from co-operation between the member states' authorities when investigating cross-border crime in any member state. It called for joint investigation teams, as foreseen in the treaty, to be set up without delay as a first step to combat trafficking in drugs and human beings as well as terrorism. Provision was made in article 13 of the convention on mutual assistance in criminal matters between member states of the European Union for the establishment of such teams. This convention was signed in May 2000. Following the tragic events of 11 September 2001, the Council of the European Union considered that joint investigation teams should be set up as a matter of priority to combat offences committed by terrorists and organised crime generally and that a specific and legally binding instrument providing for such teams should be adopted as soon as possible. Accordingly, the text of article 13 of the mutual assistance convention, together with articles 15 and 16 which make provision for criminal and civil liability, were brought forward in the form of a framework decision. Although the framework decision is targeted in particular at setting up joint investigations to combat trafficking in drugs and human beings as well as terrorism the Bill is not confined to these offences.
All member states agree on the particular need to tackle organised criminals who either smuggle narcotic and psychotropic substances into the Union or, as in the case of certain synthetic drugs, manufacture them illegally in laboratories within the European Union. The EU has a co-ordinated action plan to cover the years 2000-04 and work has already commenced on the preparation of an action plan for the period from 2005 onwards. These plans are designed to put more emphasis on prevention and reducing drug demand.
Trafficking in persons is an odious crime which is widespread and growing. Tragic experiences in Ireland show that we are not immune from being targeted in this respect by organised criminal gangs. Recent successful prosecutions abroad show the value and benefit of international co-operation in this area.
The provisions of the Bill also interact with a number of the recommendations of the Patten report on Policing in Northern Ireland, such as the following: the Police Service of Northern Ireland and the Garda Síochána should have written protocols covering key aspects of co-operation; there should be a programme of long-term personnel exchanges between them in specialist areas; and consideration should be given to providing for an immediate exchange of officers and pooling of investigative teams after major incidents with a substantial cross-Border dimension.
Article 9 of the Agreement between Ireland and the United Kingdom on police co-operation which was signed in Belfast on 29 April 2002 provides that the Police Service of Northern Ireland and the Garda Síochána shall, as appropriate, make full use of existing arrangements for facilitating joint investigations and additional arrangements that are put in place in the context of European Union iniatives. A concrete example of this new impetus for co-operation was a seminar last May on cross-Border co-operation in the fight against organised crime held in County Cavan. The seminar, which was attended by representatives of the Garda Síochána and the Police Service of Northern Ireland, together with a number of other relevant agencies, led to the establishment of a number of cross-Border investigations which are ongoing. It is planned to make this very positive development an annual event and this legislation will provide a legal framework for such co-operative cross-Border investigations in the future.
The key elements of the Bill are as follows. The full text of the European Union Council framework decision of 13 June 2002 is contained in the Schedule to the Bill. The framework decision provides, by mutual agreement of the competent authorities of two or more member states, for the setting up of joint investigation teams for a specific purpose and limited period, to carry out criminal investigations in one or more of the member states setting up the team.
Section 1 of the Bill defines some of the key terms used throughout the Bill. Section 2 provides that the Commissioner of the Garda Síochána will be the competent authority for the State for the purposes of the Council framework decision except where other member states require a judicial authority for the making or receiving of a request, in which case the Minister - not the Garda Commissioner - will be the competent authority. The purpose of nominating the Minister as a competent authority is to allow Ireland to make and receive requests from other member states, which in accordance with either their legislative or constitutional arrangements require and have named judicial authorities, rather than chiefs of police, as their national competent authorities for the purpose of giving effect to the framework decision.
Section 3 deals with the establishment of joint investigation teams in the State. Where the Irish competent authority is satisfied that either an offence has been committed in the State or there are reasonable grounds for suspecting that an offence has been committed in the State and the investigation of the offence or suspected offence has links with another member state or states or that conduct which would constitute an offence or a reasonable suspicion thereof has occurred partly in the State and partly in another member state, it may request the relevant competent authority in the other member state or states to establish a joint investigation team.
Section 4 provides for the establishment of joint investigation teams on receipt of requests from other member states and contains provisions which are similar in nature to those contained in section 3.
Section 5 elaborates on the provisions relating to the establishment and termination of joint investigation teams and provides for the agreement governing the establishment of such teams. A joint investigation team can be established for a specific purpose and for a limited period which can be extended for such periods as are agreed by the competent authorities concerned. A team can operate for as long as is necessary for the purpose of conducting the investigation concerned and parts of the team can operate in more than one member state at the same time. Provision is also made for member states to join a team which has already been established.
Section 5(4) was amended on Report Stage in the Seanad in order to include the criteria which must be considered by the Irish competent authority when deciding whether to join an investigation team which has already been established by other member states. These criteria are similar to those contained in section 4(3) of the Bill. The Office of the Parliamentary Counsel has since considered the matter further and is of the view that the wording of section 5(4) as passed by Seanad Éireann is imprecise and requires to be tightened up for the purposes of providing greater clarity and accuracy. Accordingly, I will bring forward an amendment to address this issue on Committee Stage.
Section 5(5) provides that a member state may join a team already established by more than one member state including the State on such terms and conditions as may be agreed. The agreement to establish the team can be amended to reflect changing needs on any of these matters. Section 5(6), the final subsection of this section, allows a joint investigation team to be terminated when the purposes for which it was established have been achieved or when there is no further benefit to be gained from its continued operation.
Section 6 deals with membership of a joint investigation team and the terms and conditions of such membership, including remuneration and allowances. National membership can be drawn from the Garda Síochána, Customs and Excise, the Revenue Commissioners, other Departments and persons who, in the opinion of the Minister, have experience or expertise relevant to the investigation concerned. Members of the Garda Síochána and civil servants will continue to be subject to the same terms and conditions of employment as they were subject to immediately before they became members of the team. Provision is made for the removal of members from the team by the Commissioner in the case of members of the Garda Síochána, or by the Minister, at the Commissioner's request, in the case of other team members. Members of the Garda Síochána and officers of Customs and Excise will continue to be vested with and can exercise their Garda or Customs and Excise powers while operating as members of a team.
Section 7 provides for the operation of a joint investigation team. A team will perform its functions in accordance with the law of the state of operation. In Ireland, a team will operate under the control and general supervision of the Garda Commissioner who will make the necessary organisational arrangements, including the appointment of a team leader. Team members, including seconded members, will perform their functions under the direction and control of the team leader.
While Article 1.6 of the framework decision provides for discretion as to whether seconded members of a joint investigation team are to be entrusted with the task of taking certain investigative measures in the host state, it is not intended to provide for such an option in the case of a joint investigation team operating here. Section 7(4) contains the necessary prohibition. This is in line with the practice being adopted in other member states on the role of seconded members in a joint investigation team. Seconded members may, however, be present when investigative measures are being undertaken, unless otherwise decided by the team leader. Evidence obtained during the course of an investigation will remain in the possession of the Garda Síochána or, if not already in their possession, will be taken into their possession.
Subsections (7), (8) and (9) of this section provide for one of the more innovative aspects of the Bill in that, where investigative measures are required by a joint investigation team in one of the member states involved in the team, seconded members can request their own national authorities to take such measures. This means that it will not be necessary for the member state of operation to submit a formal request for mutual assistance to another member state. The relevant measures sought will, of course, be considered in the member state in question, in accordance with the conditions which would apply had the measures been sought in a national investigation. In order to give effect to this, section 7(7) provides that evidence which is obtained directly by a seconded member operating in the State from his or her competent authority of appointment will be considered as if it had been obtained on foot of a mutual assistance request made under section 52 of the Criminal Justice Act 1994.
Provision is also made in subsections (8) and (9) of this section for a member of the Garda Síochána who is operating as a seconded member in another member state to make a request, on behalf of the team, for mutual assistance under section 51 of the Criminal Justice Act 1994, or for a search warrant authorising entry, search and seizure under section 55(4) of the Criminal Justice Act 1994.
Another innovative measure is provided for in section 7(11) which allows a member of a joint investigation team operating as a seconded member in another member state to provide to that team information which is available in the state and which is relevant to the investigation being conducted by the team. This will only be possible, of course, where it can be undertaken within the scope of national law and within the limits of the team member's competence.
Section 8 deals with the written agreement for the establishment of a joint investigation team and lists the provisions which must be included in any agreement - the parties to the agreement; the purpose for which the team is established; the identity of the person or persons to be investigated, if known, and details of membership of the team. Financial arrangements must also be agreed and included in any agreement drawn up between member states involved in the establishment of a team. Provision is also made for the agreement to be amended in order to allow for issues such as the extension of the period of operation, changes of membership and other incidental matters.
Section 9 provides for additional assistance and expertise to be provided to a joint investigation team by appropriate persons, described as "participants", from EU bodies or authorities of countries other than member states. Participants can be drawn from Europol, bodies established under Title VI of the European Union, such as Eurojust, the European Commission or other institutions of the European Communities, and authorities of countries other than member states which have been designated by the Minister. The role of participants is similar to that of seconded members and, like them, they will not be permitted to take investigative measures.
Section 10 amends the Garda Síochána Act 1989, as amended by section 5 of the Europol Act 1997, to allow the Garda Commissioner to assign a member of the Garda Síochána as a member of a joint investigation team abroad and to provide for the making of regulations to allow for the registration of his or her death or the birth or death of a member of his or her family while serving in that capacity outside the State. While it is not envisaged that the length of time served by a member seconded to a joint investigation team will necessitate his or her family joining him or her abroad, the length of time for which a member is seconded to a team will depend to a great degree on the nature of the investigation in question.
Section 11 is concerned with the use of information lawfully obtained by a member of a joint investigation team which is not otherwise available to the competent authorities of the member states that established the team. Such information can only be used for the purposes for which the team was established. It may be used in other circumstances but only where the prior consent of the member state in which such information became available has been obtained or where the member state has been informed.
Consent to the use of the information for the detection, investigation and prosecution of criminal offences other than those in respect of which the team was established may be withheld where it would be likely to prejudice criminal investigations being conducted in the State or where a request for mutual assistance or co-operation could be refused under the international co-operation provisions of the Criminal Justice Act 1994.
Section 12 makes provision for criminal liability in respect of offences committed by or against seconded members while they are operating in the State as part of a joint investigation team. Specific provision is made for seconded members who are also members of a foreign police force, in that they will be deemed to be members of the Garda Síochána for the purpose of criminal liability.