Criminal Justice (Terrorist Offences) Bill 2002: From the Seanad (Resumed).

The Dáil went into Committee to resume consideration of Seanad amendment No. 3:
In page 55, before section 59 and Part 7 of the Bill, the following new section inserted:
"PART 7
COMMUNICATIONS DATA
59.—(1) In this Part—
‘Act of 1993' means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;
‘aggregated data' means data that cannot be related to individual subscribers or users;
‘data' means communications data;
‘data retention request' means a request made undersection 61 for the retention of traffic data or location data or both;
‘designated judge' means the person designated under section 8 of the Act of 1993;
‘Directive' means Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and protection of privacy in the electronic communications sector;
‘disclosure request' means a request undersection 62 for the disclosure of traffic data or location data retained in accordance with section 61(5);
‘Garda Commissioner' means the Commissioner of the Garda Síochána;
‘processing' has the same meaning as in the Data Protection Acts 1988 and 2003;
‘Referee' means the holder of the office of Complaints Referee under the Act of 1993;
‘service provider' means a person who is engaged in the provision of a publicly available electronic communications service by means of fixed line or mobile telephones.
(2) A word or expression that is used but not defined in this Part and is defined in the Directive has the same meaning in this Part as in the Directive.".

The safeguards referred to by the Minister for Justice, Equality and Law Reform include the appointment of a High Court judge. There is a precedent for this and I have confidence in such a process. However, while not part of the Mullingar accord, I support Deputy Costello's proposal that a report to Parliament will give more confidence in the safeguard system.

The section provides for a report to the Taoiseach. While not casting aspersions on the integrity of the present incumbent, given that Geraldine Kennedy and Bruce Arnold had concerns about the operation of phone taps, one may not have full confidence in such a process. My concerns for the safeguards would be allayed if the report were to the Oireachtas as opposed to the Taoiseach. The latter is a member of the Executive while Parliament is the last bastion of democracy. Will the Minister accept Deputy Costello's proposal?

I share Deputy Jim O'Keeffe's view that Deputy Costello's points are valid on this matter. I was, therefore, relieved to know the point has been covered by the provisions of the 1993 Act which we are amending. We are inserting a new subsection (1) and (1)(a) into section 8 of the 1993 Act. The remainder of that section goes on to deal with various matters. It reads:

(2) A person designated under this section (referred to in this Act as "the designated judge") shall hold office in accordance with the terms of his designation and shall have the duty of keeping the operation of this Act under review, of ascertaining whether its provisions are being complied with and of reporting to the Taoiseach—

(a) at such intervals (being intervals of not more than 12 months) as the designated judge thinks desirable in relation to the general operation of the Act, and

(b) from time to time in relation to any matters relating to the Act which he considers should be so reported.

(3) For the purpose of his functions under this Act, the designated judge—

(a) shall have power to investigate any case in which an authorisation has been given, and

(b) shall have access to and may inspect any official documents relating to an authorisation or the application therefor.

(4) The designated judge may, if he thinks it desirable to do so, communicate with the Taoiseach or the Minister on any matter concerning interceptions.

(5) Every person who was concerned in, or has information relevant to, the making of the application for, or the giving of, an authorisation, or was otherwise concerned with the operation of any provision of this Act relating to the application or authorisation, shall give the designated judge, on request by him, such information as is in his possession relating to the application or authorisation.

(6) If the designated judge informs the Minister that he considers that a particular authorisation that is in force should not have been given or (because of circumstances arising after it had been given) should be cancelled or that the period for which it was in force should not have been extended or further extended, the Minister shall, as soon as may be, inform the Minister for Transport, Energy and Communications and shall then cancel the authorisation.

(7) The Taoiseach shall cause a copy of a report under subsection (2) of this section together with a statement as to whether any matter has been excluded therefrom in pursuance of subsection (8) of this section to be laid before each House of the Oireachtas.

(8) If the Taoiseach considers, after consultation with the designated judge, that the publication of any matter in a report undersubsection (2) of this section would be prejudicial to the prevention or detection of crime or to the security of the State, the Taoiseach may exclude that matter from the copies of the report laid before the Houses of the Oireachtas.

We get a report from this judge whose powers will be extended by subsection (1) and (1)(a). I am rarely asked about it, although I may be asked in written parliamentary questions. I do not remember any follow-up on it in the past two years. Perhaps the Taoiseach receives questions about it, but I do not. That safeguard is in place. The duties cast upon the judge are extended by the amendment to cover the matters in question.

I am relieved to learn that the existing provisions cover a report to Parliament. That matter has not been brought to our attention recently. Does the Minister know when the last such report was laid before the Houses? Must the Taoiseach, under his power to exclude matters, point out that he is excluding certain aspects of the report and the reason therefor?

The Taoiseach is not required to relate that he has excluded material. He must consult the designated judge on the issue that the publication of any matter would be prejudicial to the security of the State, the prevention of crime or whatever. He can then exclude that matter from the copies of the report submitted to the Oireachtas. I suppose the reason I and the Deputy are unaware of this is that the report is given to the Taoiseach each year and is laid before the Houses of the Oireachtas. It is not a departmental function of mine so I cannot say when the last report was laid before the Houses. Nobody has raised any point about it.

The Minister has gone some distance to allay some of our fears on the matter. In the context of the annual report from the judge which, in the first instance, is given to the Taoiseach, what about an annual report on the complaints mechanism, that is, the referee established in section 59? Is there a similar requirement for that person to provide an annual report to the Taoiseach? Section 7 states that he should make a report of the referee's findings to the Taoiseach, although that is after investigating a matter. Have statistics been produced on the number and types of complaints along with the number which are vexatious and frivolous or is there a requirement to do so?

There will now be a requirement on a service provider of a fixed line or a mobile telephone to retain data. Where and how will that data be retained? I could access the Internet and use a fixed line 50 or 60 times in an evening to look for information on a number websites. We talk about the definition of electronic communications as being a fixed line or a mobile telephone, but what about a laptop computer with an in-built modem which has an internal system of telecommunications that does not seem to be covered by the Bill?

In terms of the bureaucracy required to store and retain information, has anybody envisaged how and where the information will be stored? What safeguards for safe storage will be in place? Earlier I instanced the case of firearms. The Minister has included a provision in the Criminal Justice Bill to ensure firearms are kept secure. Surely sensitive data such as this need to be kept equally secure even though it is electronic data. The mechanisms for doing so and the onus on the service provider should be set out in the legislation.

We must remember that most service providers are multinational companies. For example, Vodafone is a multinational company which not only covers this jurisdiction but also Britain, other European countries and countries outside Europe. Will the onus only be on the Irish section of that company? What about calls made abroad or which originate abroad? Although the calls will be billed abroad, the onus will be on the domestic wing of the service provider. It seems as if it will be a mess. It will be incredibly complex and bureaucratic. It seems the only way it could be done is in the European context but, as the Minister said, there are problems with the European Union coming to terms with it, I presume because there are problems with member states and the conditions in which they will allow the retention of this type of data, that is, the period of time and so on. Have discussions taken place with the service providers to determine whether they can do this? Is the Minister satisfied that sufficient safeguards exist to ensure the service providers do not abuse the storage of this sensitive material, which is now being entrusted to them?

Will the Minister explain section 61, which states: "Subject to subsections (2) and (4), the Garda Commissioner may request a service provider to retain, for a period of 3 years, traffic data or location data or both." Does this mean that when this Bill becomes law, the Garda will write to all service providers informing them that they must retain data for three years or will it be left to each individual case for the three-year period? Will it be a general request or will this be done on an individual basis? Can we take it that the Garda Commissioner will make no contact until a particular incident arises at which point the request is made?

I will address the last point first. We are dealing with a situation that exists at the moment; nothing dramatically new is about to take place. Under this provision, the Garda Commissioner will be in a position to make a formal request to every service provider carrying out a volume of business of interest to the Garda. In those circumstances the service providers will be obliged to keep the data in accordance with the terms of the request.

As this is happening already, the prophecy of doom, gloom and mess are not valid.

No proper statutory basis exists for this.

The main service providers have received direction from the Minister.

We should consider what happened in the case of nursing homes.

Data of this kind are in any event of independent use and a necessity for a service provider. For example, if I were to get an enormous bill next month which I query, the service provider must be in a position to outline the occasions on which my phone was used to contact specific chat lines. It must be in a position to stand up its claim for money. At the end of a billing period it must be in a position to verify that I owe it the money.

However, it does not get a call from the Garda Commissioner identifying such a person.

Any telecommunications service provider must keep this kind of material to avoid being at the mercy of any subscriber who could claim that the bill was a complete invention and that the provider's machine had gone mad and was just thinking up bills to throw at a subscriber. These data already exist. If people want to contest their bills or claim that something extraordinary has happened, service providers can confirm that a phone in a household was used to contact the talking clock in Tokyo and left off the hook for 36 hours, which explains the enormous bill. This is how the world works at the moment. They keep such records for the purpose of their business. This will inevitably be the case. A service provider could not possibly function commercially without a contract term, which would probably be struck down as an unfair contract term if it said that nobody could ever query a bill and had to accept the bill as posted to them as being conclusive of their liability to a phone company.

This material is not being collected for the first time under this legislation. It is already subject to the supervisory functions of the Data Protection Commissioner. It is information in electronic form that refers to an individual. The Data Protection Commissioner is entitled to have access to that material to ensure it is not being abused. Under the data protection law it is unlawful to abuse that material in a way that infringes people's privacy or to make it available improperly to people who should not have access to it. These issues are all matters of law already. It is not true to suggest that this measure is creating either a new database or one that is uncontrolled.

Deputy Costello asked whether this would be safely kept. It is in the exclusive interest of a service provider to keep this information for its own purposes. It would not be possible to run a phone service without keeping data of this kind. The only variable issue is the length of time the data are kept before being erased. That is the only issue that arises in terms of storage. However, it must be stored for the purposes I mentioned. I do not know whether the service providers will now reduce their holding time to three years as a matter of fact. They need to be advised by their lawyers as to whether the Statute of Limitations applies and whether it would be wise for them to keep data for six years, which, I understand, would be the normal contract period for querying a bill, rather than for three years. However, that is a matter for them. I do not need to worry about it as they can look after themselves.

However, none of this imposes an obligation with which they are not already complying. No new expense is being cast on them by this measure. In so far as data of this kind are kept, this is a particular statutory provision allowing the commissioner of the Garda Síochána to request its retention and to allow senior Garda officers access to it. This does not mean it is open to a telephone service provider to put details of Deputy Costello's or my bill on the front page ofThe Irish Times and reveal whom we had rung two days previously. Existing privacy laws and data protection laws prevent a service provider from giving, for example, to a private detective an account of whom a subscriber has rung. All that material is covered by general privacy law as well as by data protection law. I do not believe this measure has any civil liberties implication. To the extent to which there is, it is no change on the present situation.

In preparation for the independent legislation, which I had anticipated, the Department of Justice, Equality and Law Reform engaged in a major consultation process involving at least two public meetings. The Department effectively invited all parties it believed had a direct interest in the matter to communicate with it. This was attended by the media and was the subject of wide publicity at the time. It was accessible on the Department's website. It is not as if this process or the issues have been kept in secret. We went through a very extensive consultation procedure. At that time, I intended to introduce legislation in this area that would be separate from the Bill before the House. As I said earlier, this legislation is the appropriate vehicle for making these changes because the Data Protection Commissioner metaphorically put a gun to my head and the EU took away a gun that I thought would be pressed to the other side of my temple.

I know the Deputies are concerned about the procedure when a Bill initiated in the Dáil is amended in the Seanad. Deputy Ó Snodaigh is labouring under a particular disability in this regard because he does not have any colleagues in the Seanad who could have kept him informed of the progress of this Bill in that House. I acknowledge, to some extent, his argument that the new sections of the Bill have come out of the blue from his perspective. If one's party is not represented in the Seanad, it is desirable to keep one's eye on that House's consideration of legislation that is likely to be sent back to this House. One's researchers should be able to follow the debate legislation of this kind on the Internet, for example. In the absence of close co-ordination between Deputies and Senators, I accept that legislation that is returned to this House in an amended form may appear like a bolt from the blue.

I tried to follow what was being done in the Seanad in this case. I usually wait until that House has completed its deliberations on a Bill, which in this case did not happen until 10 February last. Deputies were given a short period of time to deliberate on and research this matter. I reiterate that the timeframe for this aspect of the legislation was short. The new provisions should have been introduced in a separate Bill. This House and the Seanad have been able to deal with all Stages of emergency legislation in a relatively short period of time, and that could and should have been done in this instance.

The Minister has admitted that this was intended to be a stand-alone Bill. He did not originally intend to insert parts of a Bill he planned on introducing at a later stage in the middle of this legislation. The new sections of the Bill have not been accompanied by an explanatory memorandum. According to a Government White Paper, Regulating Better, regulatory impact analysis is needed when measures which will have a major effect on people's lives are being introduced. Such analysis should be published at the same time as Bills, for example. The Minister has a habit of introducing substantial rafts of amendments to Bills. In such circumstances, an explanatory memorandum immediately becomes out of date and a regulatory impact analysis becomes worthless because it does not relate to the amended form of the Bill.

The way in which the Minister has introduced the new sections of the Bill is contrary to Regulating Better, which states: "we will require higher standards of evidence before regulating". Existing provisions allow for data to be retained for six months, or for a longer period under warrant. It is not correct to claim that we need to introduce these measures because the Data Protection Commissioner plans to interfere with a ministerial order for the retention of data. Such an order has been made for the past three years, since it was originally introduced by the former Minister, Senator O'Rourke.

The Minister said that consultation has taken place, but that claim is rebutted in an article inThe Irish Times, which I was able to source in the little time available to me for research. The headline on the article in question, which was written by Karlin Lillington, is “Consultation over data Bill is a farce”. She outlines why she thinks the consultation process was a farce. An article in another newspaper reiterates her argument. The process was a farce because this part of the legislation was not made available to Deputies until recent times. Perhaps the Minister is right when he says that events overtook us, but he cannot deny that there was no consultation on this aspect of the Bill, which is brand new. The sections of the legislation dealing with data retention should be rejected. We should revisit the issue in the fullness of time, in the context of the debate the Minister expects to take place when the European Union decides to interfere further in people’s lives.

I mentioned earlier that the Bill does not provide for a punishment. I ask the Minister to elaborate on that. Perhaps penalties are provided for in the existing legislation, which we are specifically amending. I would like to ask about the designated judge, who will be given certain duties under section 65. Why does section 64 state that the president of the High Court will invite a judge to take up this role "from time to time"? Why is it not a permanent position, which is required to be filled on an ongoing basis, other than when the person in question is incapacitated or has retired? The president of the High Court should ensure that the position is filled on a continuous basis.

I note from certain reports that during the original consultation to which the Minister referred, the Irish Council for Civil Liberties raised some concerns about potential interference with people's right to privacy. Similar problems have been encountered by the Irish Human Rights Commission, which has been specifically tasked with examining legislation that has implications for human rights — in this case, the right to privacy. As I said, the Garda is allowed to apply by warrant to retain data for longer than the six-month period that is currently allowed, if the Minister wishes it to do so. We should reject Seanad amendment No. 3 as well as the eight related amendments until the Minister has proven that we need to extend the provisions. I do not think he has proven that case. We can return to this matter at a later stage when we can have proper consultation and debate on it.

Seanad amendment put and declared carried.
Seanad amendment No. 4:
In page 55, before section 59 and Part 7 of the Bill, the following new section inserted:
60.—This Part applies to data relating to communications transmitted by means of a fixed line or mobile telephone, but it does not apply to the content of such communications.

This amendment was discussed substantially.

Seanad amendment put and declared carried.
Seanad amendment No. 5:
In page 55, before section 59 and Part 7 of the Bill, the following new section inserted:
61.—(1) Subject tosubsections (2) and (4), the Garda Commissioner may request a service provider to retain, for a period of 3 years, traffic data or location data or both for the purposes of—
(a) the prevention, detection, investigation or prosecution of crime (including but not limited to terrorist offences), or
(b) the safeguarding of the security of the State.
(2) The data retention request must be made in writing.
(3) Traffic data and location data that are in the possession of a service provider on the passing of this Act and that were retained by the service provider for the purposes specified insubsection (1) are deemed to have been the subject of a data retention request, but only if the 3 year retention period for the data has not elapsed before the passing of this Act.
(4) For the purposes of this Part, the 3 year retention period begins—
(a) in the case of traffic data or location data referred to in subsection (3), on the date before the passing of this Act on which the data were first processed by the service provider, or
(b) in the case of any other traffic data or location data, on the date on or after the passing of this Act on which the data were first so processed.
(5) Notwithstanding any other enactment or instrument, a service provider shall retain, for the purposes and the period specified insubsection (1), the data specified in a data retention request made to the provider.
(6) Nothing in this section shall be taken as requiring a service provider to retain aggregated data or data that have been made anonymous.
Seanad amendment put and declared carried.
Seanad amendment No. 6:
In page 55, before section 59 and Part 7 of the Bill, the following new section inserted:
62.—(1) Subject tosubsection (7), a service provider shall not access data retained in accordance with section 61(5), except—
(a) at the request and with the consent of the person to whom the data relate,
(b) for the purpose of complying with a disclosure request under subsection (2) or (3) of this section,
(c) in accordance with a court order,
(d) for the purpose of civil proceedings in any court, or
(e) as may be authorised by the Data Protection Commissioner.
(2) If a member of the Garda Síochána not below the rank of chief superintendent is satisfied that access to any data retained by a service provider in accordance withsection 61(5) is required for the purposes for which the data were retained, that member may request the service provider to disclose the data to the member.
(3) If an officer of the Permanent Defence Force not below the rank of colonel is satisfied that access to any data retained by a service provider in accordance withsection 61(5) is required for the purpose of safeguarding the security of the State, that officer may request the service provider to disclose the data to the officer.
(4) A disclosure request must be made in writing, but in cases of exceptional urgency the request may be made orally (whether by telephone or otherwise) by a person entitled undersubsection (2) or (3) to make the request.
(5) A person who makes a disclosure request orally must confirm the request in writing to the service provider within 24 hours.
(6) A service provider shall comply with a disclosure request made to the service provider.
(7) Where all or part of the period specified in a data retention request coincides with the period during which any of the data specified in the request may, in accordance with law, be processed for purposes other than those specified in the request, this section does not prevent that data from being processed for those other purposes.".
Seanad amendment put and declared carried.
Seanad amendment No. 7:
In page 55, before section 59 and Part 7 of the Bill, the following new section inserted:
63.—(1) A person who believes that data that relate to the person and that are in the possession of a service provider have been accessed following a disclosure request may apply to the Referee for an investigation into the matter.
(2) If an application is made under this section (other than one appearing to the Referee to be frivolous or vexatious), the Referee shall investigate—
(a) whether a disclosure request was made as alleged in the application, and
(b) if so, whether any provision of section 62 has been contravened in relation to the disclosure request.
(3) If, after investigating the matter, the Referee concludes that a provision ofsection 62 has been contravened in relation to the disclosure request, the Referee shall—
(a) notify the applicant in writing of that conclusion, and
(b) make a report of the Referee’s findings to the Taoiseach.
(4) In addition, in the circumstances specified insubsection (3), the Referee may, if he or she thinks fit, by order do either or both of the following:
(a) direct the destruction of the relevant data and any copies of the data;
(b) make a recommendation for the payment to the applicant of such sum by way of compensation as may be specified in the order.
(5) If, after investigating the matter, the Referee concludes that no provision ofsection 62 has been contravened, the Referee shall notify the applicant in writing to that effect.
(6) A decision of the Referee under this section is final.
(7) For the purpose of an investigation under this section, the Referee is entitled to access to and has the power to inspect any official documents or records relating to the relevant application.
(8) Any person who was concerned in, or has information relevant to, the making of a disclosure request in respect of which an application is made under this section shall give the Referee, on his or her request, such information relating to the request as is in the person's possession.".
Seanad amendment put and declared carried.
Seanad amendment No. 8:
In page 55, before section 59 and Part 7 of the Bill, the following new section inserted:
64.—Section 8 of the Act of 1993 is amended by substituting the following subsections for subsection (1):
‘(1) The President of the High Court shall from time to time after consulting with the Minister invite a person who is a judge of the High Court to undertake (while serving as such a judge) the duties specified in this section andsection 65 of the Criminal Justice (Terrorist Offences) Act 2005 and, if the invitation is accepted, the Government shall designate the judge for the purposes of this Act and the Criminal Justice (Terrorist Offences) Act 2005.
(1A) Subsection (1) does not affect the functions of the Data Protection Commissioner under section 10 of the Data Protection Act 1988.".
Seanad amendment put and declared carried.
Seanad amendment No. 9:
In page 55, before section 59 and Part 7 of the Bill, the following new section inserted:
65.—(1) In addition to the duties assigned under section 8 of the Act of 1993, the designated judge shall—
(a) keep the operation of the provisions of this Part under review,
(b) ascertain whether the Garda Síochána and the Permanent Defence Force are complying with its provisions, and
(c) include, in the report to the Taoiseach under section 8(2) of the Act of 1993, such matters relating to this Part that the designated judge considers appropriate.
(2) For the purpose of carrying out the duties assigned under this section, the designated judge—
(a) has the power to investigate any case in which a disclosure request is made, and
(b) is entitled to access to and has the power to inspect any official documents or records relating to the request.
(3) Any person who was concerned in, or has information relevant to, the preparation or making of a disclosure request shall give the designated judge, on his or her request, such information relating to the request as is in the person's possession.
(4) The designated judge may, if he or she considers it desirable to do so, communicate with the Taoiseach or the Minister concerning disclosure requests and with the Data Protection Commissioner in connection with the Commissioner's functions under the Data Protection Acts 1988 and 2003.".
Seanad amendment put and declared carried.
Seanad amendment No. 10:
Section 59: In page 55, line 10, "section 13" deleted and "section 13, or produced under section 14(7)," substituted.
Seanad amendment put and declared carried.
Seanad amendment No. 11:
Section 60: In page 55, before section 60, the following new section inserted:
60.—The Act of 2003 is amended by the insertion of the following section:
‘4A.—It shall be presumed that an issuing state will comply with the requirements of the Framework Decision, unless the contrary is shown.'.".

This amendment introduces a new section 60, which in turn inserts a new section 4A in the European Arrest Warrant Act 2003. Its purpose is to provide for a general presumption that the state issuing a European arrest warrant will comply with the requirements of the framework decision on the European arrest warrant unless the contrary is shown. This new section provides a general indication on the broad approach a court should adopt in its examination of all aspects of the European arrest warrant.

The amendment draws attention to the fact that the European arrest warrant involves a different process from extradition. It is not merely a variation on the procedures that apply to extradition cases. The European arrest warrant was introduced to facilitate closer co-operation between countries that have a common interest and are closely bound by their shared membership of the European Union. Concepts such as mutual trust and good faith — or, in American terms, full faith and credit — are, therefore, the cornerstones on which the European arrest warrant is based. In particular, the European arrest warrant gave practical effect to the principle of mutual recognition in this area of the criminal law.

This is not an irrebuttable presumption but it suggests to our court that an inquiry does not have to be held into an issue unless there are substantial grounds raised before the court by the person to whom the warrant relates indicating that there exists an issue to be investigated by the court. It puts an onus on the person in respect of whom the arrest warrant is made to raise such substantial grounds. The alternative view would be that the High Court, in considering a European arrest warrant, would have to start summoning witnesses or inviting submissions on whether France, for example, proposed to comply with its undertakings as a requesting state. It must be made clear that the High Court is safe to proceed unless the person sought raises a substantive issue of sufficient materiality, weight and force so as to put the court on its guard regarding the matter in question. The European arrest warrant would never really work if the High Court had to ask what would happen to the person in question when he got to France if the French were acting in bad faith and were in breach of the rule of specialty, for example.

A person before the court cannot simply state he wants the French to prove that they will comply with A, B and C. He must raise a substantial case that requires an answer rather that simply raise paper issues and demand rebutting evidence from the authorities seeking to execute the European arrest warrant.

I sympathise with the principle of this amendment but the Minister should provide further clarification. How fair is it to place the onus of proof on the individual? What constitutes a substantive issue of sufficient materiality, weight and force? How high is the barrier for the individual? If one felt one had a genuine case to make, what sort of hoops would one have to go through and what assistance would be available to one? Although I feel sympathetic towards the case made, I would like to be convinced that we are fair and just regarding a person with a reasonable case to make.

I fully empathise with the Deputy's concern that this amendment be fully understood before we accept it. If a European arrest warrant is issued in respect of Joe or Josephine Soap and is delivered to the Irish State for the purpose of having it executed against him or her while he or she is in Ireland, the issue that then arises is whether the requesting state intends to comply with its obligations under the legislation. One such obligation concerns the rule of specialty. This provides that if extradition is sought in respect of Joe or Josephine Soap, on a charge of car stealing, for example, the requesting state cannot contend that it wants to try him or her for further named offences.

Subject to statutory exceptions, which are provided for in the legislation, there is an obligation on the requesting state to comply with the rule of speciality, which is a principle of extradition law and also applies to rendition on warrants. If one left it up to a High Court judge in the Four Courts to decide whether the Polish or French states, for example, would comply with this obligation, the judge would have to ask how he could determine this, given that the person before the court had raised the matter as a substantial issue. Should the Polish or French ambassadors give an undertaking that their countries would comply? Should we have a debate in the House on whether Poland or France had breached the rule of specialty in the past? Should the prosecuting policeman,juge d’instruction or examining magistrate be brought before the court to promise faithfully that the rule would be applied?

This legislation is to produce a workable system. Deputy Jim O'Keeffe asked what standard of proof is required.If someone could raise a substantial point and say he or she has a plausible case, that he or she is being sought on a charge of stealing a car but that the real motive was a charge of treason or whatever, that would rebut the presumption that Poland, France or wherever, was compliant with its obligations under international law. It is impossible for me to say what would amount to sufficient evidence in each such case. Leaving this blank, however, would allow a judge take the view that unless there was a mountain of evidence that the requesting state had never breached this rule before, he or she would not grant an extradition. That would put the State in an impossible positionvis-à-vis our colleague states in the European Union.

Section 37 of the European Arrest Warrant Act states:

1) A person shall not be surrendered under this Act if:

(a) his or her surrender would be incompatible with the State’s obligations under:

(i) the Convention, or

(ii) the Protocols to the Convention,

(b) his or her surrender would constitute a contravention of any provision of the Constitution [This would apply if somebody was going to be treated brutally or]

(c) there are reasonable grounds for believing that:

(i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his or her prosecution or punishment in the issuing state for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or

(ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less favourably than a person who:

(I) is not his or her sex, race, religion, nationality or ethnic origin,

(II) does not hold the same political opinions as him or her,

(III) speaks a different language than he or she does, or

(IV) does not have the same sexual orientation as he or she does

or

(iii) were the person to be surrendered to the issuing state:

(I) he or she would be sentenced to death, or a death sentence imposed on him or her would be carried out, or

(II) he or she would be tortured or subjected to other inhuman or degrading treatment.

That is a prohibition in the Act. Since the European Convention on Human Rights Act came into law, in addition to these explicit obligations there is a requirement that a court interpret this Act, and this Act as amended, in accordance with the European Convention on Human Rights. Adequate rebuttal of a presumption must be proportionate to the case. If someone is in a foreign country it may be very difficult to prove every comma of an intention to breach some obligation.

The courts will interpret this in a sensible way. If a case indicated a substantial reason to apprehend that the obligations of the requesting state were likely to be breached, the court would deem that sufficient rebuttal to require further material from the requesting state. We cannot have a situation in which someone presents a tick box form saying he or she wants evidence proving 25 propositions about the French legal system leaving the court in the position that it will not order an extradition unless the French Government moves half of some department of state to Dublin to prove how its system works.

The purpose of this amendment is to make clear that one cannot raise an issue by raising a flag on it. One must give it substantial force before the courts intervene and require further material from the requesting state.

Would there be a right of appeal from an adverse decision?

Yes, it could be appealed to the Supreme Court.

Why is this new amending section needed when section 60 outlines the procedures whereby an issuing state seeks arrest and surrender? It states that it must be done in accordance with the provisions of the Act and the framework directive. Why build in a presumption there instead of leaving it as it is? The Minister is shifting the onus very rapidly.

This is a new creature. Until this law came into effect we had a twin-track approach to extradition issues: the conventional international law of extradition which was a state to state request implemented by courts pursuant to international law agreements; and in regard to the United Kingdom, the Isle of Man, the Channel Islands and other places, there was rendition on warrants, which was a different concept. This was not state to state extradition, it required only that a policeman appear before a court in Ireland, produce a warrant and ask that it be endorsed for execution in this State. That was the arrangement in 1965 and we slowly developed a series of protections around that legislation as it applied to warrants.

In our relations with the United Kingdom for example, the rules of specialty and of proving a substantial case to meet were introduced by statute and dealt with on the basis of a certificate from the Attorney General for England and Wales. Unless the Irish Attorney General intervened that condition was met. Therefore, we have jurisprudence on a specific form of rendition on warrants and international jurisprudence dealing with extradition law.

The question that arose here, and in the minds of the officials in my Department, was how will an Irish court deal with someone raising a point for debate in a court here, and where will it say the onus of proof lies. It was not clear in considering the law on rendition on warrants, or the international law, where the Irish courts would go on the issue. We want to give them guidance so that in general terms to make this system work they do not engage in debate for debate's sake and that they deal only with these issues if substantial cases are raised meriting some strong reason to doubt that the requesting state would comply with its obligations under the framework decision.

Seanad amendment agreed to.
Seanad amendment No. 12:
In page 55, before section 60, the following new section inserted:
61. The Act of 2003 is amended by the substitution of the following section for section 5:
‘5.—For the purposes of this Act, an offence specified in a European arrest warrant corresponds to an offence under the law of the State, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State.'

Where an offence specified in the European arrest warrant corresponds to an offence in Ireland the dual criminality requirement is considered to be met. This requirement arises for all offences other than those on what is termed the positive list which is set out in Article 2.2 of the framework decision. In that case the dual criminality requirement does not apply.

The amendment provides a specified point in time by reference to which correspondence of offences under Irish law and the law of the issuing state is to be established. That is, it provides that the correspondence is to be established by reference to the position on the date of the European arrest warrant. This amendment clarifies the law on the matter. If somebody raises the question of whether an offence is a corresponding one the requesting state need only prove there was correspondence at the time the arrest warrant was issued. There is no ongoing target which requires us to prove what happened to the law in the meantime. Based on this amendment, correspondence for arrest warrant purposes occurs where the offence in the warrant is an offence under the law of both the issuing state and of Ireland on the date of the issue of the European arrest warrant. Establishing the date of issue is a simple matter. One can just check the date on the warrant without additional evidential proofs.

There are two broad approaches to establishing the point at which correspondence occurs. The first approach would be that the correspondence can be established where the act is an offence under the law of both states on the date of commission of the act. However, that approach may facilitate persons evading justice for offences under international agreements, such as torture, sex tourism, trafficking, etc. The second Pinochet ruling in the House of Lords demonstrated this approach. If, as in that instance, both states had not implemented the relevant agreement at the time of the alleged offence, then correspondence could not be said to exist as the act in question was not an offence under the law of one of the parties on the date of the commission.

The second approach is to take the view that the correspondence should be established by reference to the position at the time of issue or receipt of the request. That is the approach under our extradition law since 2001 and is the basis for the amendment to ensure that principle applies in European arrest warrant cases. This approach to correspondence represents the best public policy option if it will prevent the kind of abuse to which I have referred where a person evades justice merely because the two states involved ratify the relevant agreements at different times. Under the amendment, all that is required is that both states would have done so at the time the warrant is issued. This line of thinking reflects the first House of Lords decision in the Pinochet case.

What is the Minister providing now that was not provided previously? Are we solely dealing with the issue of the dates of dual criminality?

The Act was silent as to which approach in principle was to be adopted by the court, that is, was it dual criminality on the date of commission of the offence or was it dual criminality on the date of the warrant. What we are doing here is fixing that the latter principle is the one the court is to follow. Until now the Act was silent on this issue. One could have two people arguing as to what the Act meant. Under the terms of the statute enacted in 2003, a court could ask for guidance on whether it should take course A or course B. Course B is the more normal and conventional one which will make the system more workable and definite than course A.

I take the Minister's point that it is wise to have clarity on the issue. Is there a danger that if we relate the date to the issue of the warrant, we may co-operate in a situation where someone is being extradited to deal with an issue which was only criminalised subsequent to the date of the commission of the act?

The short answer to that question is "No" for the reasons I outlined earlier. This framework decision is subject to certain constitutional principles. The framework decision must be interpreted in accordance with the European Convention on Human Rights which is imported into European law by Article 6 of the European Union treaty. If murder were a criminal offence in Ireland and we brought in a statute criminalising murder, we could not make it retrospectively criminal because that would breach our Constitution and the European Convention on Human Rights. It would be grounds for a member state to resist extraditing a person if another state, where until the day before yesterday it was legal to carry out a certain act which was now a criminal offence, were to seek the Irish State, for example, to extradite that person so that it could try him retrospectively on that criminal offence in breach of the provisions of the European Convention on Human Rights. It would be mandatory on an Irish court, if that situation were drawn to its attention, to say that, in effect, it was a breach of the European convention and the person should not be extradited in such circumstances for the reasons set out in the main text of the statute which oblige an Irish court to uphold the person's rights in any decision it makes.

The Minister referred to murder, which is regarded a major crime in every civilised state. If new legislation were introduced to deal with sex tourism or trafficking, I would be concerned about the possibility of breaching the retrospective principle. While I would regard such activities as heinous, in many countries the necessary legislation may not have been enacted until relatively recently or may not be on the statute book in some countries. No matter how bad an offence is, we cannot and should not extradite someone to a jurisdiction in respect of the commission of an act which was not an offence at the time the act was committed. Otherwise I am happy to accept the provision as proposed. If the Minister can give me some assurance on that point, I will be happy to agree to the amendment.

I can give the Deputy that assurance. This would not operate to make someone liable to be prosecuted in breach of the terms of the convention, in other words, on a charge and a law which was trumped up afterwards to cover something that was in breach of that. There are many different complications to that principle. If, for instance, a state decides to extend its jurisdiction to deal with extra-territorial matters, it is not as clear-cut as that. If Ireland were to say that, under a genocide convention, it would either prosecute people in Ireland or send them away and in prosecuting them in Ireland it assumed jurisdiction to try them on a crime against humanity wherever in the world it happened, that would be a complexity which might or might not be affected by all this.

Seanad amendment agreed to.
Seanad amendment No. 13:
Section 63: In page 58, between lines 15 and 16, the following new paragraph inserted:
"(b) the substitution of the following subsection for subsection (7):
‘(7) Where, in relation to a person who has been remanded in custody under subsection (3), a European arrest warrant is transmitted to the Central Authority in the State in accordance with section 12—
(a) that person shall be brought before the High Court as soon as may be, and
(b) the European arrest warrant, or a facsimile or true copy thereof, shall be produced to the High Court,
and the High Court shall, if satisfied that the person is the person in respect of whom the European arrest warrant was issued—
(i) remand the person in custody or on bail (and for that purpose the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence), and
(ii) fix a date for the purposes of section 16 (being a date that falls not later than 21 days after the date of the person's arrest).'.".

This inserts a new paragraph after paragraph (a) in section 3 of the Bill. Its purpose is to amend section 14(7) of the European Arrest Warrant Act. Section 14 of that Act deals with arrest without warrant on the grounds of urgency. This is a technical amendment following an amendment to section 12 of the European Arrest Warrant Act, which was inserted in the Dáil and which clarified the status of a European arrest warrant which is received by fax. The amendment to section 12 is inserted by section 62 of the Bill. The present amendment clarifies that faxed copies, which were provided for by this House when it was considering the Bill, are also acceptable in cases where the person has been arrested on grounds of urgency on foot of a Schengen alert. It is extending the same principle to a slightly different situation.

It is a technical amendment.

My memory of the European arrest warrant was that it did not make provision for bail but rather that people would be remanded in custody alone. Are we now being somewhat more generous? We debated the fact that there could be health and other circumstances where a person could be granted bail, but my memory is that the Minister did not accept that amendment. Are we going a step further here?

No, the point to which the Deputy is referring is a debate we had on the last occasion this legislation went through this House regarding whether somebody should be capable of being sent to another state effectively on bail.

The debate was that the person concerned did not have to be held in custody.

It related to whether the person did not have to be held in custody for the purpose of being sent to another state.

The principle of the European arrest warrant is that one is deprived of one's liberty for the purpose of putting oneself somewhere else. I have no doubt that someone who is faced with a European arrest warrant could possibly informally contact the police on the other side and say "I'm coming to Paris anyway, forget about this" and by agreement there might be no further proceedings on the arrest warrant. Somebody who wants to get to the requesting state in those circumstances will not be prevented from coming to an agreement with that state to forget about proceedings in the Irish High Court because the person will turn up in Warsaw, Paris, Madrid or wherever he or she is wanted.

If push comes to shove and the Irish State is pushed to the point of saying in respect of an accused person that it wants that person in Madrid tomorrow and that person has contested the accusation all the way down the line to that point, the Irish court effectively has to deprive that person of his or her liberty. The idea is that the accused person is surrendered in custody to the other state and it is for the other state, in terms of its law, to decide whether that person is set at liberty or to take an interlocutory decision about his or her status, pending trial in that state.

Seanad amendment agreed to.
Seanad amendment No. 14:
Section 68: In page 63, lines 10 to 15 deleted and the following substituted:
"21A.—(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state.
(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.".

This amendment amends section 68 of the terrorist offences Bill and its purpose is to amend section 21A — which was inserted in the Dáil — of the European Arrest Warrant Act 2003. This is an amendment to an amendment this House made.

Section 21A deals with the question of ensuring that persons are not surrendered for the purpose of investigation and it provides that the High Court shall refuse to make a surrender order if it is satisfied in the case of a person who has not yet been convicted that a decision has not been made to charge the person with and to try him or her for the offence concerned.

The revised section 21A allows the arrested person to raise a question about the intentions of the issuing state, in this case about its intention to proceed with a prosecution so that it is a matter for the High Court to adjudicate on the substantive hearing of the case. However, this amendment adds a presumption that there has been compliance by the member state with the terms of the framework decision unless the contrary is proved by the party making the claim of non-compliance. In other words, the complainant will have to do more than merely claim that there has been a failure by the issuing state to comply with the framework decision. The complainant will have to overcome the presumption before the court can examine the claim of non-compliance.

The presumption of compliance provision takes account of the mutual recognition concept which is at the heart of the European arrest warrant system. It represents an assumption that we are entitled to make about our closest partners, that is, that they are acting in a bona fide manner in operating the framework decision. It also clarifies the threshold that needs to be met before further information will have been sought from the issuing state. If a person is sought in Ireland on a European arrest warrant, the person cannot simply say that this could be for the purpose of getting him or her to Spain to question him or her only and not for the purpose of a trail, and that by simply raising the issue the Irish court will be obliged to tease out that issue to the nth degree.

As I mentioned in regard to the rule of specialty and other obligations, the person accused would have to raise some substantial reason with some weight as to why the court should commence an investigation on that issue, otherwise the court should presume that, for example, the Spaniards know what we expect of them and what the European law expects of them and, therefore, there is some substance and weight to the point before the court is required to conduct an inquiry.

It seems there is a contradiction in this section. In the first instance, section 21A(1) provides that the High Court shall refuse to surrender the person if it satisfied that a decision has not been made while subsection (2) contains an in-built presumption that a decision has been made. Surely the way to resolve that would be that the European arrest warrant would include a statement, or be accompanied by a cover note, to the effect that the intention is to prosecute. We are watering down unnecessarily the jurisdiction and process of the High Court by having such a presumption in the legislation and then giving the court powers to refuse to surrender the person if it is satisfied that a decision has not been made. Will the court act on a presumption when it does not know whether a decision has been made? Will it take the request purely on faith? What powers will be given to the High Court in this respect?

In an ideal world we would love if every country had a European arrest warrant which dealt with the Irish declaration that was made at the time the framework decision was adoption unanimously by the European Council, but Ireland was on its own in regard to this matter. We were the only country which made a declaration at the time we were taking this provision as not applying to extradition effectively for the purpose of an arrest for inquiry in other countries.

We had to defend our corner in Europe on that occasion and we did so with some difficulty. The view at the time was that all member states should have a single approach to this matter. There was strong pressure in Ireland not to have such a declaration. I agree with Deputy Costello that if all member states thought the way the Irish do and they all adopted the same approach to this matter as we do, it would probably be recited in every standard form European arrest warrant that this was the situation. However, these arrest warrants are issued and addressed not simply to Ireland but to all member states of the European Union. We are not in a position to require our fellow member states to adapt common forms and to insert paragraphs which have no relevance to the demands they make of each other to satisfy a particular position which Ireland adopted at that time.

We have to deal with this matter in our own law and not rely on the form of the warrant to set out that provision. This is the factual position. I agree with the Deputy that it is slightly less satisfactory than it would be if other member states agreed with our position, but none of them agreed with us at the time. We were on our own on this issue. Therefore, this is how we have to deal with the matter.

The Minister did his best at the time.

I was the Attorney General at the time.

Is this the nexus or meeting point between our adversarial system of law and the inquisitorial system of criminal law on the Continent? Arising from this amendment, are we trying to confront the situation whereby somebody is brought before a magistrate to inquire into that person's possible involvement in a crime? In that context, are we presuming that a decision has been made to charge when, effectively, the legal system in some continental countries may be that they want to bring somebody before a magistrate in the normal way to inquire into that person's possible involvement in a crime? Is this the Minister's response to that situation, that despite the fact that we are providing for the extradition of a person to another jurisdiction, we are providing in law for a presumption that a decision has been made in that country to charge that person?

It comes down to workability. Having taken this unilateral stance when the framework decision was adopted, we wanted it to be clear that we were not agreeing to a proposition that mere suspects could be arrested in Ireland whatever other countries wanted to do and that warrants would only be used to remove people to foreign states on the basis that a decision had been made to arrest, charge and try them for the offence. We regard that as fundamental.

The Deputy asked if this arises from our adversarial system — that is one way of putting it. In another European country it might be possible to arrest someone on suspicion of murder and deprive him of his liberty while he went through a criminal justice process which could take a couple of years. It is fine telling a Frenchman in Ireland that is the system in France and to go back and face it. It would be different, however, if an Irish person was walking down the Champs Élysées and someone concluded he might have done something and wanted to know more about it. We were forced into the position where we had to act unilaterally.

We do not, however, want to make our unilateral provision unworkable, where half of France would have to come to Ireland to submit affidavits to make the system work. In such a case, if the person says he was walking down the Champs Élysées and has no idea what this is about, the French cannot possibly have decided to charge him. If he is one of numerous people who could have committed the offence, then the presumption that they are seeking him for trial can be rebutted.

If it was necessary to lay the case out before an Irish court every time and for argument to take place as to whether that was sufficient basis to put someone on trial in Ireland, however, we would render the system unworkable. This amendment states that a substantial issue must be raised on that point before that unilateral protection can be invoked.

If after a Munster game in Biarritz there was too much celebration and, as a result, a person was wanted in accord with the system in France, it would be normal for that person to come before the examining magistrate. The presumption will apply under the amendment. The person who is wanted could go to the High Court and say that the French want him because they want to bring him before an examining magistrate. The French will not charge a person until he has been before the examining magistrate and, therefore, they could have not decided to charge him although they want him to appear in accordance with their normal system. Where does that leave the law? Will the High Court decide if the warrant should be executed or are we leaving an area of doubt in our efforts to bridge the gap between the two systems?

It is difficult. We do not want it to be the case that if a European member state has a system where people can be arrested, subjected to the criminal law process and deprived of their liberty on mere suspicion and without a decision to charge them, it can as an extension require any Irish citizen anywhere in Ireland to be plucked from his or her job and brought to that state in custody without ever once having the opportunity to say that he is just going through a process to be excluded as a suspect in a case and is being deprived of his liberty in a way that is totally disproportionate to the effect on that person.

When the Minister acceded to this framework decision, the Government made a unilateral declaration that Ireland accepts its obligations under it, subject to the understanding that warrants would not be enforceable in Ireland simply because a law was passed in some other member state or the criminal justice system in another state was one where people could be requested from all over Europe to come to participate in a process to weed out suspects. That is what we are doing. It may not be the most satisfactory arrangement but it was the best we could do at the time.

Having put this safeguard in Irish law, I do not want to make it unworkable and to have the European Commission say that we have made the European arrest warrant unworkable in Ireland. I want it to work on a presumption of good faith on the part of our colleagues. To avail of the Irish declaration, an issue cannot just be raised simply to require a rebuttal, there must be a substantial reason before the court can be moved to investigate this issue.

On the basis that this is the best achievable outcome, I will accept that.

Seanad amendment agreed to.
Seanad amendment No. 15:
Section 69: In page 63, lines 18 to 26 deleted and the following substituted:
"‘22.—(1) In this section, except where the context otherwise requires, "offence" means, in relation to a person to whom a European arrest warrant applies, an offence (other than an offence specified in the European arrest warrant in respect of which the person's surrender is ordered under this Act) under the law of the issuing state committed before the person's surrender, but shall not include an offence consisting, in whole, of acts or omissions of which the offence specified in the European arrest warrant consists in whole or in part.'.".

This amendment relates to the application of the rule of speciality in respect of persons surrendered by Ireland and entailed an amendment to section 69 which inserts a revised section 22 in the European Arrest Warrant Act.

The rule of speciality provides that a person may be proceeded against only in respect of the offence for which he or she was surrendered. Article 27 of the framework decision provides that the rule shall generally apply under the European arrest warrant arrangements except where a member state declares that as an executing state it shall not require its application or where any of the exceptions in article 27 apply. Ireland has not made a declaration on this matter so as executing State we will apply the speciality rules.

The amendment seeks to ensure that the speciality rule will not operate to prevent the conviction, sentencing and detention in the issuing state of persons surrendered by Ireland in respect of an alternative but lesser offence within the same group of offences, murder or manslaughter being the most notable example of this. To achieve this it is necessary to amend the revised section 22 inserted by section 69 to allow that the prohibition for proceedings for other offences, ie., the normal effect of the speciality rule, does not go so far as to prevent a conviction in the issuing state for an alternative but lesser offence where that offence arises from the same facts or circumstances as gave rise to the charge for which the person was surrendered.

This amendment has the effect of restoring the position that applied under the extradition laws in place prior to the European arrest warrant coming into force.

Seanad amendment agreed to.

Seanad amendments Nos. 17 and 18 are consequential on amendment No. 16. Seanad amendment No. 19 is related. Seanad amendments Nos. 16 to 19, inclusive, may be debated together.

Seanad amendment No. 16:

Section 69: In page 63, line 28, "if" deleted and "if it is satisfied that" substituted.

Seanad amendment agreed to.
Seanad amendment No. 17:
Section 69: In page 63, line 29, "it is satisfied that" deleted.
Seanad amendment agreed to.
Seanad amendment No. 18:
Section 69: In page 63, line 36, "the High Court is satisfied that" deleted.
Seanad amendment agreed to.
Seanad amendment No. 19:
Section 69: In page 63, between lines 40 and 41, the following inserted:
"(3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to—
(a) proceed against him or her,
(b) sentence or detain him or her for a purpose referred to in subsection (2)(a), or
(c) otherwise restrict him or her in his or her personal liberty,
in respect of an offence, unless the contrary is proved.".
Seanad amendment agreed to.

Seanad amendments Nos. 21 and 22 are related to Seanad amendment No. 20 and all may be discussed together by agreement.

Seanad amendment No. 20:

Section 69: In page 64, lines 27 and 28, "Central Authority in the State" deleted and "High Court" substituted.

Seanad amendment agreed to.
Seanad amendment No. 21:
Section 69: In page 65, line 21, "consent."." deleted and "consent." substituted.
Seanad amendment agreed to.
Seanad amendment No. 22:
Section 69: In page 65, between lines 21 and 22, the following inserted:
"(6) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to—
(a) proceedings being brought against the person in the issuing state for an offence,
(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person’s liberty, in respect of an offence, or
(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence,
upon receiving a request in writing from the issuing state in that behalf.
(7) The High Court shall not give its consent under subsection (6) if the offence concerned is an offence for which a person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this Act.'.".
Seanad amendment agreed to.
Seanad amendment No. 23:
Section 70: In page 65, lines 26 to 32 deleted and the following substituted:
"‘offence' means, in relation to a person to whom a European arrest warrant applies, an offence under the law of a Member State (other than the issuing state) committed before the person's surrender to the issuing state under this Act;".

This amends the current text of section 23(1) of the European Arrest Warrant Act as inserted by section 70 of this Bill. Section 23 deals with the question of onward surrender to a third member state of a person surrendered by Ireland to the first member state. It gives effect to Article 28 of the framework decision. The essential position under this section is that a person must not be surrendered to another member state without the first executing state consenting to that onward surrender.

Subsection (1) of section 23 provides a definition of offence in respect of which a person may be subject to onward surrender to another member state. The new definition simplifies the one in section 23(1). It provides that an offence for which the person may be surrendered must be an act that was committed before the person's surrender to the issuing state, pursuant to the original European Arrest Warrant Act, and that it was an offence at that date under the law of the member state that is now seeking his or her surrender. In particular, it guards against any possibility of retrospective penalisation, that is, it prevents a situation where the third state might try to pursue a person for an act committed before the original surrender but where that act was not an offence at the time of the person's original surrender but was subsequently criminalised.

We discussed that issue earlier. I am satisfied that the points we made are covered.

Seanad amendment agreed to.
Seanad amendment No. 24:
Section 70: In page 65, line 36, "if" deleted and "if it is satisfied that" substituted.
Seanad amendment agreed to.
Seanad amendment No. 25:
Section 70: In page 65, line 37, "it is satisfied that" deleted.
Seanad amendment agreed to.
Seanad amendment No. 26:
Section 70: In page 65, line 43, "the High Court is satisfied that" deleted.
Seanad amendment agreed to.
Seanad amendment No. 27:
Section 70: In page 65, between lines 46 and 47, the following inserted:
"(3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to surrender him or her to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State in respect of an offence, unless the contrary is proved.".

Seanad amendment No. 27 inserts a new subsection (3) in section 70 of the Bill which relates to section 23 of the European Arrest Warrant Act 2003. Section 23 of that Act deals with requests for the surrender of a person by the issuing state to another member state. Section 26 gives effect to Article 28 of the framework decision. That article dealt with the question of a person being surrendered to a third member state.

The core position is that a person must not be surrendered to another member state without the first executing state consenting to that onward surrender. The new subsection (3) contains the presumption of compliance by the issuing member state with the terms of the framework decision, in this case, that it will respect the rules relating to onward surrender. This presumption will arise where the arrested person claims that the issuing state does not intend to respect those rules. The effect of the presumption is to ensure that the mere making of a claim will not suffice. Something more will have to be offered to support the claim. The presumption of compliance provision takes account of the mutual recognition concept that is at the heart of the European arrest warrant system. It represents an assumption we are entitled to make about our closest partners, that is, that they are acting in a bona fide manner in operating the framework decision. It also clarifies the threshold that needs to be met before further information will have to be sought from the issuing state.

Seanad amendment agreed to.

Seanad amendments Nos. 29 and 30 are related to Seanad amendment No. 28. Seanad amendments Nos. 28 to 30, inclusive, may be taken together.

Seanad amendment No. 28:

Section 70: In page 66, lines 5 and 6, "Central Authority in the State" deleted and "High Court" substituted.

Seanad amendment agreed to.
Seanad amendment No. 29:
Section 70: In page 66, line 48, "consent."." deleted and "consent." substituted.
Seanad amendment agreed to.
Seanad amendment No. 30:
Section 70: In page 66, after line 48, the following inserted:
"(5) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to the person being surrendered by the issuing state to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State, upon receiving a request in writing from the issuing state in that behalf.
(6) The High Court shall not give its consent under subsection (5) if the offence concerned is an offence for which a person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this Act.'.".
Seanad amendment agreed to.

Seanad amendments Nos. 32 and 33 are consequential on Seanad amendment No. 31. Seanad amendment No. 34 is related. Seanad amendments Nos. 31 to 34, inclusive, may be taken together.

Seanad amendment No. 31:

Section 71: In page 67, line 4, "if" deleted and "if it is satisfied that" substituted.

Seanad amendment agreed to.
Seanad amendment No. 32:
Section 71: In page 67, line 5, "it is satisfied that" deleted.
Seanad amendment agreed to.
Seanad amendment No. 33:
Section 71: In page 67, line 11, "the High Court believes upon reasonable grounds that" deleted.
Seanad amendment agreed to.
Seanad amendment No. 34:
Section 71: In page 67, between lines 13 and 14, the following inserted:
"(2) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to extradite him or her to a third country, unless the contrary is proved.".
Seanad amendment agreed to.
Seanad amendment No. 35:
Section 72: In page 67, after line 23, to insert the following:
"72.—The Act of 2003 is amended by the substitution of the following section for section 42:
‘42. A person shall not be surrendered under this Act if—
(a) the Director of Public Prosecutions or the Attorney General is considering, but has not yet decided, whether to bring proceedings against the person for an offence, or
(b) proceedings have been brought in the State against the person for an offence consisting of an act or omission of which the offence specified in the European arrest warrant issued in respect of him or her consists in whole or in part.’.”.

Seanad amendment No. 35 provides for the insertion of a new section 72 in the Bill which in turn replaces the existing section 42 of the European Arrest Warrant Act 2003. Section 42 of that Act sets out one of the grounds for refusal to surrender a wanted person. It provides that a person shall not be surrendered while the Director of Public Prosecutions or the Attorney General are considering a prosecution for any offence or where proceedings have been brought in the State in respect of the offence set out in the European Arrest Warrant. Neither of those grounds is being changed.

However, the DPP has sought a review of section 42(c) which provides that where there is a decision to enter a nolle prosequi or a decision not to bring proceedings in respect of the offence in the European arrest warrant, the person may not be surrendered. The DPP is concerned that section 42(c) as currently set out could have undesirable results. He has pointed out that a number of circumstances can arise where the decision not to proceed here or to terminate proceedings is taken because of insufficient evidence or witnesses in this jurisdiction. Under the existing provision such a decision would mean that a wanted person would not be surrendered for the offence in question and that the person would as a result evade justice even though there is adequate evidence and witnesses available in another member state. There is no good reason in principle why this should be so. The present provision also creates a difficulty if a decision were taken not to prosecute here because of the lack of evidence without any knowledge at that time that the evidence was or might be available in some other jurisdiction.

It might be useful to refer to some examples of the type of situation the DPP had in mind when he requested a review of this provision. Offences relating to sex tourism or trafficking in persons are among the most notable examples of what the DPP is concerned about. Offences relating to torture or war crimes or similar offences arising under international conventions also apply. In such cases Ireland may have jurisdiction to try the offence but the best evidence and witnesses may be elsewhere. We must not prevent the effective prosecution of such offences. The present amendment will ensure that a potential barrier to effective prosecutions is removed. It relates to lack of witnesses or evidence here that may be available in another jurisdiction.

I am glad the DPP has requested a review. I fully agree with his approach on this. In those circumstances we would want to ensure that a person could be extradited to a member state where the best evidence and witnesses were available, particularly in respect of the types of heinous crimes outlined by the Minister of State. I am prepared to agree to this amendment.

Seanad amendment agreed to.
Seanad amendment No. 36:
Section 72: In page 67, to delete lines 24 to 28.
Seanad amendment agreed to.
Seanad amendment No. 37:
Title: In page 7, lines 9 and 10, "AND TO MAKE PROVISION FOR RELATED MATTERS" deleted and "AND THE EUROPEAN ARREST WARRANT ACT 2003, AND TO MAKE PROVISION FOR RELATED MATTERS, INCLUDING THE RETENTION OF COMMUNICATIONS DATA" substituted.
Seanad amendment agreed to.

I thank the Members for their co-operation. As they know, I am not a lawyer and this is not my area.

Seanad amendments reported.