JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Wednesday, 5 Nov 2003

Vol. 1 No. 37

Extradition Agreements: Presentation.

Chairman

I welcome the officials from the Department of Justice, Equality and Law Reform and thank them for their patience. The purpose of the meeting is to discuss an EU proposal which we discussed briefly yesterday in the context of the JHA council meeting tomorrow. I welcome Mr. Hugh Boyle, Ms Marion Walsh and Mr. Batt Whelton.

The most recent version of the proposal has been circulated to members. The committee appreciates that civil servants do not discuss their views on policy matters and, while members enjoy privilege, witnesses do not. I invite them to make a short presentation on the proposal.

Mr. Hugh Boyle

I thank the chairman and the committee for the invitation to speak on this matter. As the Chairman said, we are not in a position to talk about the merits of a policy, as is normal in these cases. I will outline the background to the agreements between the European Union and the United States of America and I will deal briefly with the extradition element and Ms Walsh will deal with mutual legal assistance in criminal matters.

The European Council agreed in September 2001 to undertake negotiations with the United States of America on matters relating to judicial co-operation, including extradition and mutual legal assistance. The Justice and Home Affairs Council approved a mandate in April 2002 authorising the opening of negotiations with the USA on extradition and mutual legal assistance matters. The negotiations got under way in late June 2002. The current situation is that all EU member states have bilateral treaties with the USA on extradition and a significant number have bilateral agreements on mutual legal assistance. Ireland has a bilateral treaty on extradition since 1983 and it has signed a bilateral treaty on mutual legal assistance, ratification of which is being finalised at present.

The EU mandate required there should be full protection of fundamental rights and respect for constitutional principles. The mandate also provided that any new agreements should build on rather than replace existing bilateral agreements. We will see how that came into operation. While the negotiations have resulted in two separate agreements, one on extradition, the other on mutual legal assistance, it is accepted that the two agreements form a package and that one will not be implemented without the other.

A procedure was agreed by the EU on the conclusion of the agreements, which involved the taking of two decisions, the first of which was taken on 6 June 2003 and it authorised the Presidency to sign the agreements on behalf of the EU. The signing took place in Washington at the EU-USA summit on 25 June and the agreements were subsequently published in the Official Journal on 19 July. Before ratification each member state has discussions with the USA and brings their bilateral treaties into line with the EU-USA agreement. Article 3 of both agreements sets out the detailed arrangements by which the new agreements and the existing bilateral treaties are to be brought into line.

Where anything in the EU-USA agreement exceeds or adds to an existing bilateral treaty, it will be expected that the bilateral will be supplemented, to bring it into line with the new agreements. Any changes arising at bilateral level will be aimed at ensuring that the bilateral arrangements are consistent with the new EU-USA agreements. Following completion of the bilateral discussions, each member state and the USA will undertake its own national processes leading to ratification of the updated bilaterals.

When all member states and the USA have completed their national constitutional and parliamentary procedures on the ratification of the agreements, the EU will be in a position to adopt the second Council decision, which will authorise the Presidency to conclude or ratify the agreements on behalf of the EU. It is expected that process will take about 12 months to complete leading to late next year.

The bilateral discussions got under way on 23 October. Ireland, along with Italy and Denmark, has had bilateral discussions at official level with the US authorities with a view to identifying the alterations needed in our bilateral arrangements. Once bilateral texts have been agreed, we will be in a position to undertake the ratification process. That is likely to entail bringing the revised texts before the Oireachtas for approval.

The preamble to the extradition agreement sets out some basic considerations. It refers to the need to have regard to the rights of the individual and the rule of law. It refers also to the guarantees to the right to a fair trial, including the right to adjudication by an impartial tribunal, established pursuant to law. Those were guiding principles at all stages of the discussions with the US. The extradition agreement consists of 22 articles, the main provisions of which deal with simplified procedures for transmission of requests, establishing criteria for deciding between competing requests, authentication of documents, simplified extradition, i.e. where the person consents to surrender, as well as a revised provision relating to capital punishment.

The agreement applies to requests issued after it enters into force and to offences committed before as well as after that date. However, the arrangements relating to temporary transfer may apply even in respect of requests issued prior to the agreement coming into force. Article 4 of the agreement defines "extraditable offences" as offences carrying a penalty of one year imprisonment or more in both the requesting and requested states. This Article is introduced to allow a small number of member states change from a system where extradition applies only in respect of a specific list of offences to one where the sentence threshold is the determining factor. Ireland's bilateral treaty already reflects the threshold approach.

On the transmission of documents, the agreement envisages greater use of the embassies of requested states in the requesting state. In future, in order to meet deadlines, requests for extradition can be submitted to the embassy of the requested state located in the requesting state. For example, the US can meet its requirements by submitting its request to the Irish Embassy in Washington. That is regarded as delivering the request to Ireland and vice versa.

The procedures relating to authentication of documents are being eased. Documents which bear the seal of the ministry of justice of the requesting state will be admissible in extradition proceedings in the requested state without additional certification. Article 14 establishes a mechanism for dealing with the possible disclosure of sensitive information in an extradition request. The requesting state will decide whether to supply such information following consultations with the requested state about the disclosure of the information during the processing of the request. If it is concerned that information could be disclosed which it would not wish to have, it has the option of not submitting it in the first place.

Chairman

Is that in Article 14?

Mr. Boyle

Yes.

Article 9 deals with cases where a person whose extradition has been granted is also being prosecuted or is serving a sentence in the requested state for another offence. In such cases, the agreement states that the requested state may temporarily surrender the person for the purpose of a prosecution. It is an option, not an obligation. We may go down this road if it is agreed. There are provisions relating to simplified extradition, which covers the giving of consent to surrender or consenting to waiving speciality by the arrested person. The Extradition (European Union Conventions) Act 2001 allows for simplified procedures but only between member states of the EU. The agreement provides that consent is to be given in accordance with the law of the requested state. Under the 2001 Act, the consent must be informed and given voluntarily in open court. It may be necessary to amend our current legislation, to enable the operation of the procedures introduced in 2001 to be applied also with non-EU states, such as the USA.

On multiple requests, Article 10 deals with two situations. First, it deals with situations where the requested state is in receipt of extradition requests from the USA and any other state, other than an EU member state. For this situation, it provides that the executive authority of the requested state - in this case the Minister for Justice, Equality and Law Reform, will determine which request is to be granted. Article 10.2 deals with the second scenario; namely, where the requested state is in receipt of extradition requests from non-EU states, including the USA, as well as European arrest warrants from other EU member states. It provides that, when deciding between requests, extradition requests made by the USA will be treated on the same basis as European arrest warrants issued by other EU member states.

In deciding between requests, account has to be taken of criteria set out in the agreement. It is a non-exhaustive list of criteria for determining which request should be proceeded with. Our bilateral treaty already contains certain criteria, including most of those listed in the new agreement, but some new aspects are enumerated which the requested state is expected to consider; for example, the nationality of the victim, before deciding on competing requests. An explanatory note attached to the agreement confirms that the arrangements in Article 10 do not diminish the obligations of those states that are parties to the Rome Statute on the International Criminal Court - that is all EU member states since the USA is not party to it.

On the death penalty, member states may grant extradition on the condition that a death sentence is not imposed or, if because of legal requirements for the prosecution of certain offences, it has been imposed, is not carried out. Our current bilateral treaty requires only that it shall not be carried out; now it will be possible in many cases to get guarantees that it will not be imposed. On transit, there is a new provision concerning unscheduled landings. While our current bilateral treaty provides for transit arrangements, it had not dealt with unscheduled landings.

Article 17 contains a non-derogation clause. This article states that member states will be able to continue to apply the grounds for refusal of an extradition request that are already available in their bilaterals, even where those grounds are not repeated in the EU-USA agreement. In other words, a request may be refused based on grounds in the bilateral treaty or in the new agreement. Where a request is refused due to the application of a state's constitutional principles or because a court of final appeal has refused to grant it, the parties are then obliged to engage in consultations to deal with the situation which has arisen. This may mean that the person will have to be prosecuted in the states in which he or she is located rather than be extradited.

These are the main provisions of the extradition agreement. They mean we will be replacing a small number of the articles in the current bilateral and in other cases we will add new paragraphs or small new articles. We are now engaged in the process of bilateral discussion with the US in order to identify precisely which new elements are to be introduced into the bilateral. When those documents are completed, we will be in a position to bring the new papers to the Oireachtas for its approval. That is an overview of the extradition arrangements. If it is in order, Ms Walsh will continue on mutual assistance aspects.

Chairman

We will stop for one moment since they seem to be mutually exclusive to some extent in regard to EU extradition.

Deputy Costello

I thank Mr. Boyle for the presentation and welcome Ms Walsh and Mr. Whelton. Mr. Boyle stated that there should be full protection of fundamental rights and respect for constitutional principles. The mandate also provided that any new agreements should build on rather than replace existing bi-lateral agreements. However, he also stated that we are both replacing and adding to them. Therefore, it is not just building on but rather deducting from too. He also stated that the signing has been followed by discussion between each member state and the USA to bring their bi-laterals into line with this new agreement. Therefore, this new agreement is to effectively over-ride the bilaterals which have existed. That all the bilaterals between individual member states and the USA must now be dealt with in this manner is quite a decision in principle to take. What happens if the USA does not wish to bring these into line in exactly the manner indicated since Mr. Boyle said it may require new statutory measures? We may have to amend our legislation to enable the operation of their procedures produced in 2001.

There appear to be more protections in our extradition agreements with the US than are in this proposal. For example, the provision in the document on the death penalty seems to be a fudge. However, our bilateral with the US is simple in that we do not extradite where someone will be charged with an offence which carries the death penalty. In this document, people can be charged with an offence which carries a death penalty in the US, but extradition may be refused if the death penalty is not imposed. Why can we not have a straightforward statement that we have a mutual extradition arrangement with a country which carries the death penalty, and remember the US has refused membership to a number of countries, including Turkey until it deals with human rights issues, and we are now going into a multi-lateral EU agreement with all the other countries and it has fudged the issue of the death penalty. We will have to weaken our bilateral arrangement, in order to accommodate this multilateral one. In this we are deliberately putting aside the bilateral arrangements where there is any conflict between them and the new EU-US agreement.

Mr. Boyle stated that Article 10 does not diminish the obligations of those states which are party to the Rome Statute on the International Criminal Court. Are either the USA or Ireland signatories of the statute? We are waiting for legislation to be put in place in that regard. What is the commitment on the part of either country and will new legislation have to be introduced in the USA, Ireland and any other EU country which has not already given a statutory commitment to the court. I understand the USA will not sign the legislation and has already publicly stated that it has no intention of doing so. Its citizens will not be bound by any international criminal court.

Chairman

On an extraditable offence, the requesting and requested states must have the right to impose a maximum period of more than one year. I am thinking about membership of an illegal organisation which, in Ireland, carries a maximum penalty of five years. However, the usual sentence might be three months and in a country which is a signatory to this, that offence may have a maximum penalty of 20 years, which is regularly imposed. We have an offence which in both countries is punishable by a sentence for a maximum period of more than one year, but is not looked upon as seriously in one jurisdiction than another, the legislation having been in place for some time. Society and the courts do not regard it as such a grievous offence as would warrant a sentence of more than one year. If that person was extradited, it is likely they could face a 20 year penalty in another country. Is there a difficulty in regard to that provision?

Article 5 provides that documents can be given to the embassy of the requesting country. What has been the position in this regard? In a case where there is doubt in the minds of people as to whether an offence is grievous or not, this regulation may make it easier to seek and obtain extradition, which might go through before the matter has been fully thought out in Ireland. I may be wrong.

On temporary surrender, we have the inverse position. Where a person has committed the same crime, and in one country where they are serving the 20 year sentence, another country seeks their extradition to it where the penalty will be one year. The prisoner may be delighted to be extradited in such cases. Is it an option for the extraditable person, or is it an obligation?

I understand from Deputy Costello's contribution that a person could not be extradited for a crime which carries the death penalty. However, this document provides that a person can be extradited as long as the requested country is satisfied that the death penalty will not be imposed. It is a major change in thinking in that regard and I want to know that it has been considered by the Department.

The sensitive information, referred to in Article 16, may not be regarded as such by one country. It states that the requesting state shall determine whether the information shall nonetheless be submitted. If the requesting state decides they cannot submit sensitive information because that information would go into the public domain in the system which pertains in Ireland, how stands the extradition in that situation?

Mr. Boyle

Deputy Costello asked about the idea of bringing current arrangements into line with the new EU agreement. In finally satisfying themselves and agreeing to sign this agreement with the US, the EU member states were prepared to include in it only those issues which they were prepared to alter in their present arrangements with the US. There were other issues which were raised during the negotiations, upon which there was no agreement, and are therefore not in the new multi-lateral. In that context, member states satisfy themselves on the issues which they are prepared to make alteration to, if needed, before they are prepared to agree to the overall agreement. In our case, most of the changes are of a procedural nature, on the transmission of documents and the use of embassies.

However, they do not go to the substance of the bilateral. For example, it does not change the basic criteria for deciding what an extraditable offence is and our bilateral will remain unchanged in that respect. Our own provisions on political or military offences being one of the grounds for which a person can be extradited will remain the same in the new agreement, as revised.

In finally agreeing to the overall package with the USA, member states were satisfied that there were issues they could change without major difficulty. Some member states have difficulties with the extradition of their own nationals and not just to the USA - it is a basic principle. While the USA was anxious to make some progress on this issue, the member states were not prepared to go that far and therefore it does not feature in the agreement. I give that as an example of how the agreement reflects only those issues about which there is a common consensus on the alterations that were possible.

There has been some improvement in the matter of the death penalty, but it needs to be explained further. Currently, we can seek guarantees - we always do, as do all European states - prior to an extradition that the death penalty will not be carried out. We can go somewhat further now, although perhaps not as far as we would all care to do, in ensuring that it is not even imposed. Part of the thinking is that imposing the death penalty and then commuting it to a life sentence, which involves the person being on death row for a period of months, would in Europe be considered inhuman and degrading treatment. That will not now arise because of the new provision, so it is something of an improvement. We can ensure, generally speaking, that the death penalty, where there is the choice within US law, will not be sought and as a result not imposed. We can get those guarantees before a person is extradited.

It is true that in some states in the USA, some offences are prosecuted strictly as capital offences; in other words, the death penalty is the only penalty prescribed by law. In those cases we can continue to ensure, in the event of the death penalty being imposed, that it will not be carried out. The Americans claim that because of their system they cannot prosecute those offences other than as capital offences, although in some states there is a choice and when the choice is available they will not prosecute them as capital offences but seek a life sentence. This represents some improvement.

Deputy Costello

Can the Americans not bring their arrangements into line so that these offences are not prosecuted as capital offences, since we are bringing our bilateral arrangements into line?

Mr. Boyle

That is more to do with the substance of internal law, which is outside the scope of agreements of this nature. That is generally true in cases such as these. We seek the best commitments we can get at international level from any other state with which we enter into extradition arrangements. It is probably not usual for us to be in a position to ask a member state to change its internal legal arrangements. That is something different from an extradition agreement.

Chairman

The Deputy is pushing the boat out.

Mr. Boyle

In the case of the ICC, Ireland has ratified the agreement but has not yet introduced the relevant legislation. The Bill was published in August this year.

Ms Marion Walsh

The International Criminal Court Bill 2003.

Mr. Boyle

Yes. The USA is not a party to the International Criminal Court, but the explanatory note is designed to take account of the fact that if any European state which is party to the ICC requests the surrender of a person to the court, our obligations under the Rome statute are not affected by the agreement. It is likely that our internal legislation on this matter will be in place by the time we come to ratify this EU-US agreement.

The Chairman asked about the threshold for extraditable offences and the idea of there being a 12-month threshold in practice for a variety of sentences arising when it comes to prosecution. Extradition agreements generally operate under the idea of a basic threshold. The practice in terms of prosecutions or sentences handed down is of a separate nature. In the 1983 agreement which currently applies with the USA, we operate on the basis that to be eligible for extradition the offence must carry a penalty of at least 12 months in both jurisdictions. That is usually as far as we go in these matters. It is the same with all our EU partners; 12 months is the norm for a basic threshold. The sentence imposed or served thereafter is a matter for the state concerned once the person has been surrendered and returned to it.

Chairman

Would it be a valid objection to being extradited that the penalty in the requesting country is excessive in the perception of the requested country?

Mr. Boyle

It is not generally. I could not say it is not true in all cases - there may be some understanding about the penalty to be imposed - but generally, that does not arise. I am aware that there is concern about some of the sentences; a life sentence in the USA is often of a much greater duration than one in a European state. Again, however, these matters are normally outside the terms of an extradition agreement.

An inquiry was made about the arrangements for the use of embassies for the transmission of documents. Currently, the relevant embassy is that of the requesting state located in the requested state. For example, if the Americans sent a request to Ireland for extradition of a prisoner they would send it from their ministry of justice - the State Department - to their embassy in Dublin, from whence it would go to the Department of Foreign Affairs and then to the Department of Justice, Equality and Law Reform. This is an attempt to streamline things somewhat. In future the Americans will be able to deliver their papers to the Irish Embassy in Washington, which is the equivalent of delivering it to Ireland. Obviously, the reverse also applies.

On the question of temporary transfer and whether the arrested person can have his requests granted, the answer is "No". It is a matter for the executive authorities and the judicial authorities to decide whether they are prepared to take that option, but this does not generally arise. There was a question about sensitive information. If the requesting state is unhappy with the guarantees it receives from the requested state about the use to which the information might be put, it has the option of not submitting the information. It may even decide that the matter is of such sensitivity that it would prefer not to proceed with the request. However, there may be other options available: it may be possible to have a prosecution brought in the requested state. When we talk about sensitive information we automatically think of security information, but it could also be information of a commercial nature, which is quite often the case in fraud cases. Cases such as these turn up between the USA and Ireland on a fairly regular basis.

Ms Walsh

The mutual legal assistance agreement has 18 articles. The main new provisions in the agreement - over and above those contained in the bilateral agreement - deal with identification of bank information, the establishment of joint investigation teams and the use of video conferencing for taking testimony on mutual assistance requests. A number of the provisions in the mutual assistance agreement are similar to those in the extradition agreement. For example, as Mr. Boyle has mentioned, the preamble sets out some basic considerations to apply to accused persons. The agreement also applies to requests issued after it enters into force and to offences committed before as well as after it enters into force. The arrangements for videoconferencing and expedited transmission of requests will apply to requests pending at the time the agreement enters into force. There are similar provisions in both agreements for consultations to enable the most effective use to be made of the agreements and to facilitate the resolution of any disputes. Both agreements also contain a provision for a review not later than five years after entry into force.

We will now turn to the more substantive provisions of the agreements. Article 4 sets out the nature and type of assistance to be afforded in the identification of bank information. States are required to advise whether the banks located in its territory possess information on whether an identified natural or legal person suspected of or charged with a criminal offence is the holder of a bank account or accounts. This assistance is also to be afforded in the case of information regarding natural or legal persons convicted of or otherwise involved in a criminal offence and information in the possession of non-bank financial institutions or financial transactions unrelated to accounts.

Article 5 of the agreement makes provision for the establishment of joint investigation teams. The provisions in this article are similar to those in the EU framework decision on joint investigation teams. Article 6 provides for the use of video transmission technology for taking the testimony of a witness or expert in the context of mutual legal assistance. The making of an intentionally false statement or other misconduct of the witness or expert will be punishable as if committed in the course of the requested state's domestic proceedings. These provisions are broadly similar to those contained in the 2000 EU agreement on mutual assistance in criminal matters, although the arrangements in that agreement are somewhat more extensive than what is contained here.

Three other provisions deserve mention. Article 7 allows for the possibility of using expedited means of communication such as fax or e-mail, to be followed by formal confirmation, where this is required. Mutual legal assistance will also be available to national administrative authorities for the purpose of investigating conduct with a view to criminal prosecution or referral of the conduct to criminal investigation or prosecution authorities. Limits on the use of information or evidence obtained by the requested state are set out in Article 9. In accordance with Article 3.1(f) of the agreement, this provision replaces Article 7 of the bilateral treaty. These are the main provisions of the Agreement. Like my colleague, I will endeavour to answer any queries members may raise.

Deputy Costello

Is Ms Walsh saying that there exists something resembling the heads of an agreement for mutual legal assistance? Is a bilateral agreement already in the offing? Presumably, the agreement we are here to discuss either overlaps with or overtakes that arrangement. Perhaps Ms Walsh could give us some idea of the contents of that mutual legal assistance agreement, which was being negotiated prior to this development. To what extent does it reflect what is contained here?

Obviously, co-operation on criminal matters is desirable, and the more the better. The provisions dealing with the identification of bank information are fairly straightforward. However, assistance may not be refused under this article on grounds of bank secrecy. What is bank secrecy? Is that just a bank's policy of keeping its clients' information confidential, or are we talking about some international charter that determines what material is secret? Banks hold much private and confidential information as well as individual accounts. I would like further information about this because this matter may not just affect suspected criminals but many related personnel.

How are the joint investigation teams to operate? Are they likely to operate on Irish soil or in the US? What about videoconferencing, fax, telephone and so on? How is a team to be put together at a distance? Is it envisaged, for example, that if a team comes from the USA to pursue a particular criminal investigation here we will put together a team to assist it? The logistics of what is proposed here are difficult to envisage. Will our gardaí be going to the USA to assistfederal or state police?

Deputy F. McGrath

They could check out their human rights record.

Deputy Costello

That is another issue. To what extent does this overlap with the area of terrorism? We are talking about criminal activities, but in the USA there is a thin line between criminal and terrorist activities. The recent EU Framework Document on terrorism legislation was presented to this House some time ago. It was a rather mind-boggling document in terms of the extent and the effect of its provisions. Clearly they were reflective of the impact of the events of 11 September 2001 in the USA. The definition of terrorism was very broad. What are the views of the visitors on this? Is that where the USA is coming from? What type of criminal activities are envisaged? Are we talking about activities similar to those of the Criminal Assets Bureau, involving bank account information and so on, or are we talking about investigating al-Qaeda-type activities? I would like an insight into the minds of the people who have been bringing this document together. Is this document similar to the extradition document which was initiated in 2001, prior to the 11 September attacks? Is this something new that has been grafted onto the other document we have just discussed?

The explanatory memorandum on the limitations on activities to protect personal and other data was very interesting. Article 9.2(b) is designed to ensure that refusal of assistance on grounds of data protection may be invoked only in exceptional cases. Data protection is a major concern and is related to issues of privacy, civil liberties and so on. I would have thought that the provision would be the other way around: bodies should be entitled to refuse assistance on grounds of data protection in all but the most exceptional cases. What protections do we have if we are to share information with the USA? How can we ensure the information will not be used for a wide variety of purposes that might not be envisaged by these provisions, which treat the issue as a criminal matter subject to criminal investigation?

Chairman

What about joint investigation teams? The USA is a base for many wealthy multinational companies. I understand that American citizens are taxed on their worldwide income, although I do not know whether American companies are taxed on this basis. Taking into account the Enron and Worldcom scandals and other major company issues, is it possible to foresee the FBI having a permanent presence in embassies around Europe in a similar fashion to military attachés and those of other organisations? Would that be part of a joint investigative team? In view of the corporate tentacles of these major American companies, it does not seem unrealistic to have a law-enforcement agency overseeing the activities of a company or its subsidiaries or associates, particularly in European countries because of the amount of investment by those companies in Europe. Is this the thin end of the wedge in terms of having American police representation in all European countries?

The witness protection programme in the USA seems to be very sophisticated compared to our own. Is there a chance that a European would be expected to give evidence in such a way that if that person was in America he or she would be entitled to protection under the programme? The person would then be more vulnerable in Europe.

Deputy F. McGrath

One thing stands out in terms of fundamental rights and respect for constitutional principles as well as the rights of the individual and the rule of law. I have major concerns about the human rights record of the US authorities, which leads me to worry about extradition agreements. The plight of the prisoners in Guantanamo Bay in Cuba, for example, has given rise to concern in many European countries. The well-known Miami Five case involves five Cuban nationals imprisoned in America. These people were fighting terrorism from right-wing groups which were attacking their state. People and parliamentarians in Europe, particularly in Italy in recent times, have major concerns about this matter. There is a moral and ethical question about the drift towards human rights abuse in the USA. Many Irish people, as citizens of a neutral, impartial country with great respect for human rights, are concerned about this.

Ms Walsh

Deputy Costello asked how the EU-US agreement overlaps with or overtakes provisions in the bilateral treaty. Article 9 of the EU-US agreement replaces the corresponding provision, Article 7, of the bilateral agreement, which deals with limitations on use to protect personal and other data. The article is also more expansive on the use to which information may be put. This should reduce toing and froing since the bilateral agreement states that the information may only be used for the purpose outlined in the request unless prior consent is obtained to do otherwise. If a country needed the information in the circumstances set out under Article 9.1, such as to prevent an immediate and serious threat to public security, it no longer needs to go back and obtain prior consent. This provision helps to do away with much of this.

Deputy Costello

Was it not the case that all the toing and froing was actually checks and balances?

Ms Walsh

It is in some senses, but this is more to do with issues that come to light as an investigation evolves. Heretofore one was obliged to go back and obtain permission to use the information, but if the criteria set out in Article 9.1 are already established permission is not needed.

There are a number of additional provisions in the EU-US agreement which are not in the bilateral agreement. I mentioned these in the brief outline of the contents of the agreement. Some of these are the provisions on bank information, joint investigation teams, videoconferencing and mutual assistance to administrative authorities. Deputy Costello mentioned bank information and secrecy and wondered whether bank secrecy consisted of bank policy on clients' transactions. It is, but that cannot be withheld during a criminal investigation where there are clearly established grounds to merit an investigation.

Deputy Costello and the Chairman mentioned joint investigation teams and the question of how they will operate. The provisions in the EU-US agreement on joint investigation teams are not as detailed as those contained in the EU framework decision on joint investigative teams. It is our intention to specify and narrow things down as they have been narrowed down in the legislation that gives effect to the EU framework decision. A team will be established to deal with a specific criminal investigation or conduct which may lead to an investigation. It will operate for a specific period of time. It will be set up where it is in the public interest to do so in view of security considerations and so on. It will operate in accordance with the law of the country in which it operates - if some of our gardaí go to the USA they will operate under the direction of a team leader there and in accordance with US law.

The Chairman asked whether there would be a permanent presence of law enforcement agencies in embassies. That is not the intention. A team will be established to deal with a particular issue or crime and will operate for a specified period which will be set out, as will all other details, in an agreement dealing with the establishment of the team. If the investigation takes longer than originally anticipated the period for which it was established can be extended by agreement between the various competent authorities, which will usually be the central authorities of the USA and the European state involved.

Deputy Costello asked how we could be satisfied that the information we provide will be used only in the manner intended. With these arrangements one is normally operating in a spirit of trust. If one finds that the arrangements are not being used in the manner in which they were intended, there is provision for review and consultation to deal with glitches that arise. A question was asked about the issue of witness protection and whether a European who gives evidence is more vulnerable than an American in the same position. In the context of this agreement a European would only give evidence under the arrangements set out in the law of his or her state.

Mr. Boyle

There was some concern about civil rights matters. That remains of paramount concern for most national Governments, certainly on the European side, although I am sure the Americans have similar concerns. There are provisions in the agreement on respecting the rule of law, and also the others mentioned, but I draw attention to the grounds on which requests may currently be refused under the existing bilateral agreement which remains unaffected by the new agreement. For instance, the existing bilateral agreement states that if the offence is a political or military offence, those are grounds on which extradition may be refused. Equally, if there are grounds for believing that the prosecution is for the purpose of punishing the person because of race, religion, nationality or political opinion, those are grounds on which extradition may be refused.

It is worth noting also that in processing extradition requests here, the arrested person will have the protection of the Constitution, the rules of due process and the constitutional rules of protection, including habeas corpus in the event of prolonged or illegal detention. All of that is available to the person and it is not diminished in any way by any of this agreement. All those protections remain in place.

Chairman

I thank Mr. Boyle, Ms Walsh and Mr. Whelton for attending this afternoon. The joint committee will report back to the Sub-committee on EU Scrutiny that it has completed its detailed scrutiny of the proposal on the draft EU-US agreements on extradition and mutual legal assistance in criminal matters.

Deputy Costello

May I ask a final question? The Minister went to Europe after he appeared before this committee. Can Mr. Boyle indicate whether any changes were made to the text before us?

Mr. Boyle

Is the Deputy referring to the EU-US agreements?

Deputy Costello

Yes.

Mr. Boyle

They are not for discussion at this particular Council.

Deputy Costello

What about the previous one?

Mr. Boyle

That was in June of this year. The next stage is completion of these bilateral discussions.

Deputy Costello

What happened when the Minister went to Europe? This is the first document that has been before us.

Chairman

We will ask the Minister that question.

Deputy Costello

Was anybody here present at the discussions or was the Minister on his own?

Mr. Boyle

Generally, discussions with the US were held by the Presidency in office at the time. Initially, that was Spain, Denmark, Greece and Italy. They were the countries which led the negotiations with the US, accompanied by Council and Commission officials from Brussels. After each negotiating session, that team would report back to delegates from all the member states, including myself on a number of occasions. We would have an input at that level with the EU but there were no direct negotiations on this one between, say, Irish and US officials, not until more recently when we had the bilateral discussion on how we would now implement the multilateral at a bilateral level but that was after the document was concluded and signed and pending its ratification late next year.

Chairman

Thank you for that information.

The joint committee adjourned at 6 p.m.sine die.