Extradition Bill, 1965: Committee Stage.
Sections 1 and 2 agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill".
On section 3, subsection (1), the only reference to political offence is at the top of page 4 in the fourth and fifth lines. This section deals with definitions but it does not tell us what a political offence is. It tells us what a political offence is not, and I feel that it is an imperfect definition, in fact, not a definition at all. I would have some difficulty, I admit, in defining a political offence, but I feel that this effort is insufficient. I put this question on the Second Stage and the Minister then rightly said that he felt it was more a Committee question. I put the question as to what is the definition of a political offence because, of course, I can remember occasions in this State when there have been differences of opinion as to what constituted a political offence and would warrant political treatment and so on. I should like to hear what the Minister has to say on that point.
The second point I also made on the Second Stage refers to lines 14 and 15 of this section. I do not want to talk now about revenue offences—we will come to that later—but I want to make the point that the phrase "any country or place outside the State" must mean a place outside the Republic, but the Constitution, of course, defines the State in the English language as Ireland; therefore, I contend that this might be read as meaning outside Ireland. I wonder, therefore, whether there might not be some conflict between this phrase in this part of the definition and the reference later on to Northern Ireland which apparently is not outside Ireland. Our Constitution refers to the State as being "Éire or in the English language Ireland". I should like to hear the Minister giving his views on that also.
First the definition of a political offence. This, of course, will be a matter for interpretation by the courts when a claim is made by the person apprehended that the offence for which he is apprehended is palitical. The District Court is obliged to refer it to the Minister for Justice, who may make the decision or refer it to the High Court. The High Court decides on the facts in the particular circumstances of the case whether those facts warrant the offence to be regarded as a palitical offence, so that there is no difficulty there. For the guidance of the court there is one exclusion, which is the one referred to by Senator Sheehy Skeffington, that it does not include the taking or attempted taking of the life of a Head of State or a member of his family. I have a certain sympathy—and I said this on the Second Stage—with what Senator Sheehy Skeffington says that it is arguable at any rate that it is anomalous to exclude the Head of State from this category, but other European countries with whom we negotiated the European Convention were insistent on this going in. It is an accepted exclusion from political offences operating in most European countries so we decided to leave it there. We were not entirely our own masters in agreeing on that draft of the European Treaty, and for that reason we decided to put in this exclusion from political offences although it could give rise to diffculties of interpretation as to who is or is not a head of State in some revolutionary situation that might arise. We decided in order to get agreement to adopt this definition. I hope that it will not arise often in practical terms. I doubt if it will.
With regard to revenue offences Senator Sheehy Skeffington asked why they are in the same respectable category with political or military offences. Again this is traditional. It is accepted in Britain and in other European countries as being a traditional exclusion front extradition. Again it is a matter for the courts as to what is or is not a revenue offence.
This really was not the burden of my question in relation to this, although I would like to raise that at a later stage. My question was, does "outside the State" mean outside Ireland?
I was coming on to that. It was raised by the Senator on the Second Reading discussion and I thought this would be the appropriate time. It is a matter for the court to interpret whether a particular happening is a revenue offence. The likely interpretation would be to narrow it down to avoidance of tax or duty. Many forms of smuggling would not be regarded as a revenue offence, such as avoidance of a prohibition or quota order, or the smuggling of narcotics, but this would be a matter for court interpretation.
On the other point in relation to a country or place outside the State, the State here for practical purposes means the de facto jurisdiction, and this Bill will apply to the Twenty-Six Counties.
Is this in accordance with the Constitution?
Yes. This Bill applies only to the area over which we have de facto jurisdiction.
I listened with interest to the Minister saying that what constituted a political offence would he referred by the district court to him or to the High Court. I am wondering under what section the Minister will do this or whether he is confusing it with section 44.
An accused person who claims the right to exclusion will have the right to have that claim brought automatically before the court. He will have the right to argue that the offence is an excepted offence and to have that determined by the Minister for Justice or by the High Court. The District Court must tell him of his right to go Lo the Minister for Justice or to the High Court.
Might I draw the Minister's attention to the revenue offence section which says that a revenue offence does not include an offence involving the use or threat of force? I think we are all agreed that the less qualifications we have in Bills of this nature the more effective they might be. I should like to ask the Minister to consider that the offences which are here excluded from the protection of revenue offences, such as an offence involving the use or threat of force, or perjury or the forging of a document, are, in fact, substantive offences, and that there might not appear to be any necessity for excluding them.
I cannot visualise many circumstances in which injustice might be done in relation to the element of perjury. I think if it is ptnposed to exclude some revenue offences it might be better to leave incidental offences and let them stand or fall on their merits, I can envisage a situation in which the revenue authorities might require a statement on oath from an offender. If that offender had not made such a statement on oath, he would not be amenable to extradition, but having made such a statement on oath, he might be liable to extradition and, in fact, the position appears to be that he would. We should be very wary of anything in our own jurisdiction or elsewhere wbich would tend to encourage revenue authorities in that attitude. I ask the Minister to consider this section again and possibly to amend it on Report Stage.
I have more sympathy with the view of Senator Sheehy Skeffington that we should narrow down the definition of "revenue offence". If there was any further widening of revenue offences, quite a number of offences would come under the protection of this exemption. If there is any other offence such as an offence involving the use or threat of force, or perjury, or the forging of a document tied in with a revenue offence, the miscreant can be extradited for an offence other than a revenue offence. In my view the interpretation of "revenue offence" should be a narrow one concerned with the avoidance of duty or tax, because any broadening could include many offences for which the offender should properly be extradited.
Question put and agreed to.
Sections 4 to 10, inclusive, agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill".
I am wondering what is meant by the phrase "or an offence connected with a political offence". For instance, if an extradition were requested in respect of the murder of a policeman who was arresting a person who was involved in a political offence, such as holding a protest meeting on some political matter, I am wondering if that kind of offence is excluded from the category of offences in respect of which an extradition order can be made. It seems strange as it is.
A rather similar point occurred to me because of the slightly varied attitude we have sometimes had in this country towards political offences. I have a feeling that there was a time—I think it is gone now—when the notion was abroad in the Republic that shooting a policeman in the North was a political offence and in the South it was not. I can remember an occasion when a young man was allowed to die on hunger strike in the Republic because his offence, which he claimed to be political, was not admitted to be political by the Government, if I remember correctly. We should be very clear in our minds what we mean by political offences. I am relieved by the Minister's assurance that it will be decided by the courts. I would prefer that to a Government decision on the matter, and I hope it is implicit in the Bill.
This, of course, is ultimately a matter for the courts. I cannot at this stage presume to offer an interpretation of what would or would not be a political offence in the particular circumstances obtaining in regard to a particular offence in the circumstances of the particular time. Senator Sheehy Skeffington referred to a revolutionary situation which might arise. At this stage I do not think it would be appropriate for me to say what would or would not constitute a political offence in any such situation. As far as I know, no country has ever succeeded in formulating a precise statutory definition of the circumstances making an offence a political one, a definition that would be valid in every conceivable case.
The Minister told us a while ago that these matters would be referred to him to decide, that there is a right of appeal to the High Court or the Minister. He must surely know that he will have to exercise his discretion and his mind. In the case of the murder of a policeman arresting a person while he was committing a political offence, the Minister must have some idea as to whether that kind of thing is or is not excluded.
I would not dream of presuming at this stage to say what I or any other Minister for Justice might decide in regard to a matter of this kind in the future. It would be decided having regard to the particular circumstances of the time and of the case itself, and I would not dream of saying what I or my successor might decide in 1966, 1976 or 1986.
Is it not a fact that in the preparation of this proposed legislation——
The Seanad will adjourn for a few minutes to enable the Minister to attend a division in the other House.
Business suspended at 4 p.m. and resumed at 4.10 p.m.
When this legislation was contemplated, according to the Minister, they were up against certain difficulties with other countries. Some of these difficulties were not of the making of the Irish Government but rather was at that other European countries had other views of what political offences might be, particularly with regard to including certain catsgories. When this Bill becomes law, I presume that we will have to wait for a certain build-up of case law. I am speaking as a layman with regard to this. We will have to await Proceedings as regards offences in the categories under discussion. This is where I believe a second safeguard is highly desirable. We should have a certain amount of ministerial power to bring the position into line with that obtaining in some of these other countries.
If in some of these other countries which are parties to this we have case law built up in which certain decisions are taken and Irish citizens might not agree with them, it is quite possible that we would sign something because the majority signed. When it comes to an actual decision in a court claim in one of these other countries, will our courts be bound by that decision? Is it not a fact that lawyers quote and they produce copies from such-and-such a case at such-and-such a time as far as the British law courts are concerned? In this way we will be bound by a signed document and we will have to accept the verdicts of different European courts which may clash with the views of the Irish public. Does the Minister believe there is a safeguard in the fact that he, or whoever is Minister, will have a certain amount of discretion to implement what might be desirable from the public point of view?
I agree with much of what is underlying what Senator McQuillan has said and I emphasised that on Second Reading when some Senators took the view that it was undesirable that the Minister for Justice should have the general power which I have here in the Bill to order the release of any prisoner. It says in section 35:
(1) Whenever the Minister is of opinion, in relation to a person who is for the time being on remand or awaiting his surrender under this Part, that extradition is prohibited under any provision of this Part or of the relevant extradition provisions, the Minister may at any time refuse extradition.
(2) In any such case, or in case it appears to the Minister that the request or intended request for extradition is not being proceeded with, the Minister may order that the said person, if in custody, shall be released.
The Minister has that general overriding power to release under section 35 and, I think, properly so. Apart altogether from what the person apprehended may do, whether he applies to the court or to the Minister to decide the issue, where the offence is an excepted offence, I have this power under section 35 which overrides everything. I think it is proper that the Minister for Justice of the time should have this power. It is in ease for the person apprehended.
I am happy enough with what the Minister has said but I think "an offence connected with a political offence" is a bit loose. That same phrase occurs under Part III to which we shall come later. I should like to look at subsection (2). The same rule should apply and one wonders what the same rule is. I take it it means that extradition shall not be granted if there are substantial grounds for believing that a request far extradition for an ordinary criminal offence has been made on grounds of race, religion, nationality, and so on. I take it that is what is meant, that we shall not extradite foreigners here because they are really wanted for the purpose of being prosecuted for something connected with race, religion, or something like that.
That is precisely the position.
Question put and agreed to.
Sections 12 and 13 agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill".
It seems to be envisaged in section 14 that in certain circumstances extradition of a citizen would be granted because if this were not envisaged it would not be necessary to put in the second part of the section. It would be sufficient merely to say that extradition of a citizen shall not be granted. I wonder whether the Minister would indicate the circumstances in which extradition of a citizen would be granted.
The reason for this is to leave it open to the Government to negotiate an extradition treaty between ourselves and some other country which would be willing to extradite its own citizens to us. Normally, I should think, we should require the submission of prima facie evidence by the requesting country in such cases but we have to look to the future and to the possibility of even closer co-operation in the suppression of crime between nations. This is just to make provision for it in the event of some future occasion where we and some other jurisdiction decided on such a reciprocal arrangement. There as nothing envisaged at the moment and none arises in regard to the European Convention.
May I ask the Minister whether extradition could take place otherwise than under an extradition agreement ?
Part II of the Bill is one which enables us to make an extradition arrangement with any country in the world as well as in regard to certain countries which have subscribed to the European Convention. These are six European countries, up to now. Part II will operate immediately for these countries, once the Government order is made. Part III operates with Great Britain and Northern Ireland.
In respect of multilateral agreements that already exist is there provision for the extradition of a citizen?
Would the Senator please repeat the question?
I understand the Minister to say it applies to an existing agreement to which we may became parties or, alternatively, to new agreements we may sign. In relation to multilateral agreements to which reference has been made, is there a provision making possible the extradition of citizens?
If there is no provision in it and if this section can only operate in the case of that agreement or future agreements, and bearing in mind what is said here, unless there is provision for extradition by future agreements, what is the purpose of the section? In what circumstanees can the clause "shall not be granted" apply?
In the European Convention the thing is left open because there are same countries where, if you like, a less national approach to this exists, where they are quite willing to exchange their own nationals. Some are willing to do it and the European Convention makes it permissive for this to be done. We have done that in Part II, by making it permissive if we think it desirable in some situation where another country is willing to exchange their citizens to us we may exchange ours to them. It certainly does not arise at this point of time.
That means that extradition shall be granted for a citizen of Ireland if the relevant provision is provided.
Can this be done in any way that would not entail making an order as provided for in section 4 of the Bill? What I have in mind is every order made by the Government under this Act has to be laid before the Houses of the Oireachtas Can a situation arise where an agreement or provision will become operative where a citizen of Ireland can be extradited without the Houses of the Oireachtas having an opportunity to debate? Is this a good provision to have?
That could not happen. Any such extradition provision providing for extradition of our citizens in the future would, of course, be subject to section 4 and would have to be made by way of Government Order which would have to be placed before the Oireachtas and would be open to public discussion. It is just an enabling provision. At the moment we would not envisage extraditing any of our own nationals in these circumstances. It is in the European Convention to permit countries to do it if they so wish.
The position is not quite as desirable as the Minister would have us believe. I understand the Minister to say it should not be possible to have a citizen of Ireland extradited under an agreement without Oireachtas Éireann having first had the opportunity of dealing with the Agreement. If one looks at section 8 one finds what seems to me to be somewhat strange. An extradition agreement can be made between the Government of this country and another country; then it comes into force by an Order of this Government and is then in operation. I have not a copy of the Constitution at the moment but I would have thought any international agreement had to be ratified by the Dáil, firstly, and passed by both Houses of the Oireachtas. Apparently, that may not be so. This section may be an effort to get round what I believe to be the position under the Constitution, to give the Government power to make an agreement, then to make an Order bringing it into force. Then the safeguard of laying it before each House is provided for in section 4.
The position is that in a particular case it could happen. It might very well be the reason why an extradition agreement would be made to get some citizen of this country extradited. Then, once the agreement is made and in force, it is in operation, and laying it on the table of each House is a very thin and shadowy protection for the citizens of this country.
If the Order bringing the extradition agreement into operation did not operate until such time as it had first been passed by both Houses of the Oireachtas, there would be no objection to it because the Oireachtas would have clearly before it the Agreement and would have directed its mind to the fact that citizens of this country could be extradited to Russia, Italy, Spain or somewhere else.
I do not feel we will get very far on this measure today unless the Minister is disposed to adopt a different attitude. I would urge upon the Minister that any agreement which will provide for the extradition of our citizens should first receive the approval of Dáil Éireann and Seanad Éireann. If the Minister will not adopt a different attitude, he might at least give this undertaking, which would be highlighted in his Department for all future Ministers, that if an Agreement provides for the extradition of our citizens then, at the time it is being laid before the Dáil, the special attention of Members of the Oireachtas would be drawn to the fact that an Extradition Agreement had been entered into under the Extradition Act of 1965 and that it provided for, amongst other things, the extradition of Irish citizens. If we did not think that was proper everybody would be aware of that and the provisions in section 4 would be brought into operation. I am not too happy that merely laying the Order, not even the Agreement, before each House of the Oireachtas is any kind of real safeguard for the citizens of this country. I would ask the Minister to consider amending that so as to provide that the Order should first be ratified or approved by each House of the Oireachtas before going into operation.
I think there is ample safeguard in the section. Certainly, I would be disposed to agree that every publicity should be given to all such orders and, as a matter of political practice, Senators can be assured that this is not a provision which would be lightly made by any Government. It is not a situation I would envisage happening in the immediate future but, as countries get together, there might be an occasion when this could arise from closer communications and so on. It is certainly a matter which would not arise without the utmost publicity, at least as long as I am Minister for Justice. So far as the statutory provision is concerned, what we have here is ample and I do not think the suggested amendment would be practical.
As it stands at the moment it appears to me in section 8 that even where the Government are satisfied that reciprocal facilities to that effect will be afforded by another country, whether there is any agreement at all, before the Dáil could even consider it some Irish citizen could have been extradited—the Order having been made for that particular purpose. There does not seem to be much protection in that.
The person apprehended has his rights. He must be brought before the district court and has his right to bring the matter before the High Court or the Minister for Justice. In my view there is ample safeguard in that.
I now have a copy of the Constitution which provides that every international agreement to which the Dáil becomes a party should be laid before Dáil Éireann. Could the Minister indicate whether the actual Extradition Agreement, in addition to the Order, will be laid before Dáil Éireann? If that were the case would the Minister regard this as something to which section 29 of the Constitution would apply? We would then feel a good deal less foreboding about what might happen in the future.
Yes, indeed—of course the Constitution prevails. Where the Constitution spells it out I am quite sure the form will take that suggested by Senator O'Quigley.
I am satisfied now. except that it is not being laid before Séanad Éireann.
Question put and agreed to.
Sections 15 to 18, inclusive, agreed to.
SECTION 19.
Question proposed: "That section 19 stand part of the Bill":
On section 19 the position is we will not extradite anybody to a country where the death penalty is in operation and where it would not be in operation for a similar offence in the State. Section 19 goes on to say:
or is not generally carried out unless the requesting country gives such assurance as the Minister considers sufficient that the death penalty will not be carried out.
I presume that the death penalty will not be carried out in the requesting country. The law in relation to the death penalty in this country has become a little obscure as a result of recent enactments of the Oireachtas. I am wondering what is meant by the phrase "not generally carried out". I take it that it is this State to which that relates.
Again, this is following the language of the European Convention. I think it is reasonable enough because apart from offences punishable by death under the law of the requesting country it may be that apart from the actual existing law the requesting State may be able to assure us that it is not generally carried out. We must be satisfied by the assurance from the country that capital punishment will not be carried out. The Minister would not agree to extradition unless he was fully satisfied and had every assurance from the requesting country that in fact as well as in law the capital punishment would not be effected.
Does the phrase "not generally carried out" apply to this State or to the requesting State? There seems to be some doubt about it.
It does not read like that.
I take it to refer to this country.
The Senator is right. This is taken directly out of the European Convention. I agree with the Senator that we would draft it differently but we agreed to this and there you are.
This is the kind of thing about which we ought to take a little more time. We all know the amount of time which will be spent in the courts trying to consider what the Oireachtas meant. Judges of the High Court, a divisional court and the Supreme Court afterwards, will solemnly sit trying to consider what the Oireachtas meant when this was put in and that we meant by it. I must confess that following the International Agreement does create a difficulty, but it seems to me that this could be clarified if we were to put in "is not provided for by the law of the State or is not generally carried out in the requesting country" if this is what we mean.
This is an exact extract from article 11 of the European Convention
That may have been drawn up in French or German. Part of the difficulty is that as the phrase stands, it is meaningless to me, and equally so, I am sure, to my colleagues
I quite see that the Minister can say that this is in the form of the convention, but how does he know what it means? "Not generally carried out" in the requesting country is not the only possible reading.
I have said that. I have corrected myself. It is the requested country.
Section 19 says that extradition shall not be granted for an offence punishable by death under the law of the requesting country. Does this not tie the Minister's hands? The corresponding article 11 in the convention says
"If the offence for which extradition is requested is punishable by death under the law of the requesting Party, and if in respect of such offence the death penalty is not provided for by the law of the requested Party or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death penalty will not be carried out."
I would be somewhat afraid that once an assurance has been given to the Minister that the death penalty will not be carried out in whatever other country the offender has escaped from the Minister, if he considers that assurance sufficient, has no option but to apply for extradition. If, in fact, it has the contrary effect that a person amenable to capital punishment in his own country can safely come here in the knowledge that unless such an assurance is given he will not be extradited to his own country the danger might arise then that this is an invitation to those who might be amenable to capital punishment. I am fully in support of the more enlightened and humane attitude towards capital punishment, but we should afford ourselves protection that we are not inviting people who might be amenable to capital punishment here. This section could have that effect unless the Minister gives himself some discretion in the wording, such as that extradition may be refused. At the moment it is that it shall not be granted. It gives a guarantee which may be availed of by those who otherwise would be amenable to capital punishment.
I should like to speak in opposition to what Senator O'Kennedy has just said. This is an excellent section. It seems to me to be quite clear and a very good provision. We refuse to hand over people subject to capital punishment in other countries who would not be subject to capital punishment here. It is a most humane section, and I feel that the wording which has been criticised is wording that we should have—that extradition shall not be granted unless all the safeguards are there. The Minister has to assure himself that the assurances given are sufficient before we hand over somebody. Ireland in this is following in both a commonsense and a humane tradition. The section as it stands is well worthy of our support.
Might I ask if any signatories of the Convention have retained capital punishment?
Of the six signatories, Greece and Turkey have retained capital punishment, not Italy, Denmark, Sweden or Norway.
I am not sure about the humane point in this. I do not think it is logical. If we do not have capital punishment we should not hand a person over to somebody else who may have retained it. I am at the moment slightly confused as to what the final provision is.
We are the requested country and the requesting country is the country asking us.
It might be clearer to read it with a comma after the word "out", but I take it that since we are copying this international document where they leave out commas we cannot do that.
It should be read in that sense. It becomes clearer if you pause after the word "out".
There is one other consideration. What happens if the Minister was falsely assured and relied on the false assurance? Is there any provision in the instrument for sanctions on the country which goes back on its word, so to speak?
We would get into an international incident if that happened.
I feel that we should not encourage capital punishment here or elsewhere. The difficulty about this section is that it could be an invitation to those who would be amenable to capital punishment to come here. I do not think that that would be a desirable situation. In fact, the section in the Convention says that extradition may be refused but we have bound ourselves that it shall be granted. The fact that we have written into our statute that it shall not be granted gives a guarantee to some person who would otherwise be liable that if he comes to Ireland he is no longer amenable. I see no reason why he should not come to Ireland in such circumstances.
Timeo Danaos very much applies here, because if a Greek commits a murder and comes to this country, under this section the Minister cannot extradite him because the death penalty applies in Greece.
The final two lines give the assurance.
Supposing it is a common offence in Greece. Supposing there is an action which arouses a great deal of public feeling and the Greek Minister for Justice decides to apply for the extradition of the person who escaped to Shannon, what is the Minister to do? He will not get an assurance from the Greek Government that they will not hang him.
I will not extradite him.
That is the point. What are we to do with the man who is wanted for murder? That is the problem. I should like to know what we will do with the man who is wanted on a charge of murder in Greece.
We will not extradite him.
Will we allow him to wander abroad in this country? It is difficult.
In my view we should lean in ease of the person being apprehended and for whom extradition is claimed or requested. The theme is running through this Bill that, wherever we can, we should lean in favour of the person who is being apprehended. I think that is proper.
Agreed, except in the case where someone is charged with murder. What is this country to do if we have two or three such Greeks or Turks wandering around?
Greeks are perfectly respectable people.
I said “Timeo Danaos”. I shall deal with Turks so as not to offend the susceptibilities of the classical-minded Senator Stanford. What are we to do with such Turks? I suppose it will be ad hoc legislation.
I do not think there is any problem there. Deport them. They are none of our business and they have no right to be here. Deport them. Put them out.
That answers that question.
Does that mean that we can deport someone we are not entitled to extradite?
If they come in illegally we can deport them. There is a number of countries with which we have not an arrangement. We can deport them, put them on the next plane. That is a matter of everyday procedure.
One would think that the murdering Greek would take the trouble to come in legally in the circumstances.
If he came in legally, that is another matter.
Question put and agreed to.
SECTION 20.
Question proposed: "That section 20 stand part of the Bill".
I wonder can the Minister explain subsection (2) because I must confess that I cannot quite understand the phrase "the taking of any measure necessary to remove the person from its territory". I have looked at the explanatory memorandum but it is careful to repeat the words without saying what they mean.
This is intended to permit extradition to another country even though the person under the law of that country is detained for an offence other than that for which he was surrendered.
I understand that. That is set out in subsection (1) and part of subsection (2) appears to arise out of that. The point is that he must only be tried for the offence for which extradition was requested. Subsection (2) says :
Notwithstanding anything in subsection (1), the fact that the law of the requesting country permits the taking of any measures necessary to remove the person from its territory...
That does not seem to me to have any bearing on subsection (1).
It arises out of it. The purpose is to prevent the operation of a time limit. The final sentence refers to a lapse of time.
It is not as though the requesting country is going to do anything but remove the person from its territory.
This is not applicable to us. Some European countries which subscribed to the Convention have this provision in regard to the lapse of time. It does not affect us but it affects some European countries.
It seems to me that there are two parts in subsection (2). The first is that, "the law of the requesting country permits the taking of any measures necessary to remove the person from its territory" and the second is, "or any measures necessary under its law." Two things are involved here.
The second one is reasonably clear but the first is not.
The first is clear, is it not?
It may be clear, but why it is necessary?
It may be necessary, but what does it mean?
The first half to which Deputy Yeats referred is deportation.
I think this may, perhaps, arise from section 20 (a) where we find the words, "or otherwise restricted in his personal freedom". This may be to cover the case where deportation represents a restriction of personal freedom. Is that the explanation?
Question put and agreed to.
Sections 21 to 25, inclusive, agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill".
In the other House the point was raised that the word "may" is used in section 4, and it was put to the Minister that it would be more appropriate to use the word "shall". Surely if he is of opinion that the case is one in which extradition is prohibited under another provision, he is obliged to do this. When this was put to the Minister he said he thought there was something in it, but apparently he did not think there was enough in it to propose an amendment. I wonder has he had any second thoughts on this?
I considered this and I decided to leave in the word "may" because it gives more flexibility in the Minister's discretion. I may get conflicting legal advice on whether or not extradition is prohibited and, although I may be of opinion that the case is one in which extradition is prohibited, I may have doubts, and in that case think it right to let the matter be referred to the courts for decision. It gives the Minister authority in a difficult matter which might require legal elucidation to delegate the final decision to the High Court.
When you leave in "may" you are taking up the position that you must have the right to act even when in your own opinion the thing is illegal.
In my view, "may" is better. It gives a greater degree of flexibility. There may be a case in which I, personally, feel that extradition is prohibited At the same time, I may receive advice to the contrary. In such a case I should be free to let the matter proceed and be decided ultimately by the High Court. There is a greater degree of flexibility as it is, and I think that is desirable.
I would be more than happy to leave the power of flexibility to the High Court but I am not happy to leave the power of flexibility to the Minister.
It is a question of refusing extradition. This is actually the reverse side of the coin to the case Senator Fitzgerald is making. It is only in regard to refusing extradition. A person may be apprehended. The discretion is left to the Minister and at the same time he can refer to the courts.
My point is the use of the word "may" leaves the Minister not the opportunity of refusing extradition but of granting it.
No. If I make that decision the person apprehended has then got his court rights. He has got his fundamental habeas corpus rights. He can go to the court and ask them to determine the issue. I may refuse extradition if I am of opinion it should be refused. I may refer to the courts or if I decide to extradite a person he can then refer to the courts.
Would the Minister indicate where in this part of the Bill he has power to refer to the courts? I know he has it in section 44 in regard to our own citizens between Great Britain and this country. I do not know where he has such power in this part of the Bill. I do not know where the Minister has power to ask the court if this is a political or revenue offence. I do not know is there such power in Part II. There clearly is such power in Part III. With regard to the use of the word "may" a person who is to be extradited may apply to the High Court for a decision.
I can tell the person apprehended to go to the court.
That is a fundamental right.
I understood the Minister to indicate it was useful for him to have this authority in a case where there was some doubt of the propriety of extraditing someone. He has the right under this part of the Bill to refer the person to the High Court.
I can refer the person apprehended to the High Court.
With regard to the words "may" and "shall", I think they are interchangeable.
In fact, I looked them up quite recently in Stroude's. Dictionary and there were as many cases where "may" is obligatory as permissive.
Question put and agreed to.
Section 27 agreed to.
SECTION 28.
Question proposed: "That section: 28 stand part of the Bill".
Why is it that all persons apprehended for extradition have to be brought to the Dublin Metropolitan District Court? After all, there is a ready means of exit from the country through Cork Airport nowadays and also from Limerick through Shannon. I do not know why it is necessary to bring people the whole way to Dublin to have them dealt with in the Dublin Metropolitan District Court which is, I understand, already overworked.
The position is that it is a matter of practice in the courts. The Dublin Metropolitan Court is sitting every day so the people apprehended can be dealt with any day. It is for practical purposes that we have Dublin Metropolitan District inserted in this section.
Would it not be more convenient if the District Court was sitting at the time a person was apprehended at Shannon to have the matter dealt with in Limerick? Section 28 precludes such a thing.
The fact of the matter is that country sittings are much more irregular. You might not have a district justice available in the immediate vicinity of Shannon for a few days, When the Dublin Metropolitan District is inserted it guarantees, no matter where a person is apprehended, that the matter can be dealt with in Dublin because there is a sitting every day.
I agree, but would it not be better to leave it open to the Minister, if it were not convenient to have the matter dealt with in Cork or Limerick, to have it dealt with in Dublin?
You are tying your hands in this.
Would it not be possible for the Minister to say that if the case could not conveniently be held in Cork, Limerick or some other place it would then be brought to Dublin? If the case could not be heard in the locality you could then bring it to the Dublin Metropolitan District Court.
I shall have another look at that between now and the Report Stage.
Question put and agreed to.
SECTION 29.
Question proposed: "That section 29 stand part of the Bill".
Where there are habeas corpus proceedings is the person bringing them entitled to get free legal aid? The Minister, on the last occasion, told us of safeguards in the Bill. It is quite useless to provide release by way of habeas corpus if some unfortunate who is held for an offence in England, France, or wherever he is to be extradited, is unable to provide himself with a lawyer. It seems to me that such a person is entitled to free legal aid. I do not know whether or not the Minister is disposed to extend the provisions of free legal aid to that or whether or not it is possible to bring this within the ambit of the free legal aid.
The free legal aid is for persons who are not able to conduct their own defence before a criminal court. It does not at the moment arise and I do not propose to provide it here. It is a matter in which we should hasten slowly.
Question put and agreed to.
Sections 30 to 36, inclusive, agreed to.
SECTION 37.
Question proposed: "That section 37 stand part of the Bill".
In the Dáil a point was raised about the use of the words "the oath of some witness". That could be anybody quite unknown to the courts here and the question was raised whether, in fact, it might not be desirable that it should be witnessed by an Irish Consul or some appropriate official of that kind. The Minister said he would have a look at it. There has not been an amendment and I should like to know whether or not the Minister has reconsidered it.
I reconsidered it. It is the law at the present time. These documents will have to come from the requesting country through diplomatic channels or other responsible sources provided for in the extradition agreement. I saw no reason, on reflection, to change it.
Question put and agreed to.
SECTION 38.
Question proposed: "That section 38 stand part of the Bill".
This section is likely to give rise to considerable difficulty. It is provided that where a citizen of this country commits a crime abroad which is also a crime in this country, first of all, he will not be extradited from this country and, secondly, with the consent of the Attorney General he can be tried for that offence as if it had been committed within the State and punished as if he had committed it within the State. It seems to me that this will give rise to conflicts as between the laws establishing the law of evidence in the two States. I rather think the Bill should provide quite specifically that if the trial of the offence is to take place within the State then all procedure and the law of evidence applicable in this State would be clearly applicable in the trial of the person. For instance, if a statement is taken by a policeman in France he may or may not be obliged to give the person the usual caution— that the person is not obliged to say anything unless he wishes to do so, and that anything he says will be taken down and used in evidence. The French police, for all I know, may have their own methods of getting statements and judging by Maigret they have unusual methods in France. But, what is a district justice of the Dublin Metropolitan District Court to do when he finds himself confronted with a statement taken by a French policeman?
It must be proved by the French policeman.
The policeman will be over here. He will say that in accordance with the law of his country he obtained the statement. He may have given no caution. It may be a perfectly valid and reasonable statement and perfectly admissible in evidence in France. But, we do not provide in this section whether it will be admissible in this country and the whole thing has left it largely to the Irish courts to work out what laws will apply.
Our courts would administer our laws.
They might suspend the laws of evidence, as has been done before.
We could easily find a precedent for it if that were necessary. I do not see anything in this Bill to cover it and some of my colleagues in the Law Library are equally mesmerised and are certainly not as clear cut on it as the Minister is as to the law that is to be applicable.
I am quite clear of the fact that if any citizen of Ireland does any Act outside the State and he is brought before a court here under this section, the law that would apply in the taking of evidence and the procedure in the court would be the law existing here and the procedure existing here. I should say that, in practice, this is a section I would envisage being used little in the law. It is a section which the other European parties to the Convention thought should be there. In practice, it would want to be an unusual offence that would drive our authorities to the extent of bringing personnel from France or Germany or any other country to give evidence in our courts where they would be subject to our full procedures, such as the insistence on oral evidence and so on. That situation would obviously be an unusual one. I cannot see this being exercised to any significant extent. I would emphasise that in such an eventuality the rules of evidence applying would be those applying in Irish courts and would be in accordance with the law administered by Irish courts.
Question put and agreed to.
Sections 39 to 42, inclusive, agreed to.
SECTION 43.
An Leas-Chathaoirleach
It is proposed to take amendments Nos. 1 and 8 together for the purpose of discussion.
I move amendment No. 1:
In subsection (1) (a), line 29, before "in" where it first occurs to insert "by a judicial authority being for the purpose of this Part either a court, judge, justice or magistrate exercising judicial power".
I am not sure that the two amendments run together so well. However, I shall take them together. The Minister was kind enough to give me a copy of the measure that was, or is, in process of being passed through the British Parliament on the occasion when we were here last. I regret to say the English version is a little bit more careful of the rights of English citizens than this measure here before us is of Irish citizens. That is all the more strange in view of the fact that we have a written Constitution which circumscribes the power of this Legislature, whereas, as everybody knows, the British Parliament can enact anything it likes. As I was reading section 54 of the Bill, I came across this phrase in subsection (2):
A certificate, appearing to be given by the authority or the clerk or other officer of the authority.
I wondered what "the authority" was and I looked at the definition section in Part I and in Part III and no Part of the Bill says what is in mind or what is meant by the phrase "the authority" in the first line of subsection (2).
In the British Act they at least go the distance of referring to it as a judicial authority. I think we ought to make it quite clear, in order to remove the considerable doubt, what is meant by introducing in section 54 the word "authority" without having made any previous reference to it. We ought to make it quite clear what "authority" we have in mind.
In section 43, to which the first amendment relates, I would like it made quite clear that a warrant has been issued by a judicial authority. That is the only authority we should recognise as having any competence to issue a warrant to restrict or terminate the freedom of a citizen of this country. Therefore, I feel we ought to insert the words "judicial authority" meaning, for the purpose of this section, a judge, court, or magistrate exercising judicial power. Certainly lawyers never pretend to know the law of any country other than their own. While we do have the English Reports and have access to English textbooks and English statutes, I think, none of us would be quite prepared to say who is the judicial authority in England. There are magistrates and magistrates. As I understand it, in certain circumstances the Mayor of London Council becomes the magistrate empowered with authority to act as a judge. As I understand the position, Justices of the Peace in England—and here I speak entirely subject to correction because I speak of the law of another country —are persons who may be retired majors, retired admirals or somebody else who like to participate in some useful and beneficial public work. Who the clerks of these authorities are or what their qualifications may be I do not know.
In section 54 we are asked to say to the courts in this country that once they get a certificate appearing to be issued by the authority, the clerk, or other officer of the authority, without defining what that authority is, that would bind every court in this country up to the Supreme Court. That seems to me to be greatly attenuating the freedom of our citizens and would convert our courts into mere post boxes to receive the certificates of unnamed persons in Britain. In addition, it might not be possible to find out, and it might not even be possible for our courts to find out, what the law is in relation to magistrates in England and Wales. Scottish law varies quite considerably from English law and they have strange things in the Isle of Man. I do not know what they have in the Outer Hebrides. I do not know what they have in the Channel Islands to which, indeed, many of our citizens go on holiday and where they may commit crimes for which an extradition order may be sought.
We are being asked to accept that a warrant issued in the Isle of Man, the Channel Islands or Scotland is to constitute the whole of the document and all the evidence upon which the Commissioner of the Garda Síochána will act. I certainly think that this House should not lend itself to abrogating or attenuating the liberty of Irish citizens in the way we are being invited to do under this Bill. I also hope that the House will not lend itself to treating our courts, with our independent judges, as being mere recipients of documents appearing to be signed by the authority, whatever that is supposed to be, or the clerk or other officer of the authority.
One might find under the British Act that the clerk was to have certain qualifications but when you get into the realm of "other officer of the authority" it might be, without meaning any disrespect, the person who attended to the fires or some such person. It might be a mere clerical officer—somebody with no judicial training whatsoever—who might be empowered by the magistrate who might say: "Will you sign that and send it out by the next post? They want it over in Dublin." That kind of thing must not be allowed to happen and this House should take s very firm stand in relation to this convenient method of getting Irish citizens ready for trial in England, Wales, Scotland, the Isle of Man or the Channel Islands. While I am speaking on these two amendments, it occurs to me that it might be convenient for the House, if it were to agree, that amendment No. 9 would also be taken in conjunction with them because amendment No. 9 relates to deleting subsection (2) of section 54.
That is a totally different matter.
I am disposed to go some of the way on this but the amendment just raised by the Senator is an entirely different matter.
I would be inclined to agree with Senator O'Quigley, if the person who can issue a warrant could be properly defined. Apparently what Senator O'Quigley wants to achieve is that a warrant should not be acted upon unless it has been issued by somebody who is entitled to do so. Senator O'Quigley seems to have answered, or rather raised, in his speech the difficulties of doing this because he has used the terms "a court judge, justice or magistrate exercising judicial power". As a matter of fact, in relation to some of the places from where warrants may come such warrants may be issued by people who are perfectly entitled to issue them but who are not court judges, justices or magistrates. They might call themselves by some other name and, consequently, I cannot see that the particular amendment suggested here would achieve the purpose Senator O'Quigley has in mind.
If the amendment provided that a warrant must be issued by a person entitled to issue it or whatever the particular words might be, I would see some sense in it but it does place a very heavy onus on the authorities here to go into the matter of whether or not the person who issued the warrant was entitled to do So.
Senator Eoin Ryan has raised the precise point against defining the judicial authority as suggested by Senator O'Quigley. For instance, under the British Bill they regard a peace commissioner here as a judicial authority for the purpose of our warrants over there. Our difficulty is that we are dealing with a number of different legal jurisdictions. You have various officers under Scottish law, all of completely different descriptions, and there are other names in the Isle of Man and the Channel Islands but it would be confusing and quite unnecessary to set them all out in the Bill.
Senator O'Quigley suggests in amendment No. 8 to insert merely "a judicial authority", and I would be disposed to agree with this and similarly where it occurs in section 43. That would meet what Senator O'Quigley and Senator E. Ryan have in mind without getting us involved in descriptions here of judicial authoroties under the various jutrisdictions referred to.
I am glad that the Minister accepts that. The phrase "a judicial authority" is quite sufficient. It then becomes a question of fact for a judge to decide whether a warrant was issued by a judicial authority. I take it that the Minister will introduce an amendment to that effect on the Report Stage.
Amendment, by leave, withdrawn.
Section 43 agreed to.
SECTION 44.
Question proposed: "That section 44 stand part of the Bill."
We are dealing now with extradition between Great Britain and Northern Ireland, and in this Particular context I am wondering whether the Minister is wise from the viewpoint of our political relations with the North of Ireland to take unto himself the power to decide what is a political offence. As matters stand, the Minister may decide it in some cases or he may refer the matter to the High Court to decide wltetlter a particular set of facts constitutes a political offence. In some cases it may be that public opinion in Northern Ireland may be outraged by a particular offence and then the person may have escaped over the border and come down here. The Minister and opinion here might be disposed to regard it as a political offence, in which event we would not be disposed to extradite the person to Northern Ireland, and then that would involve a direct clash of interests between the Government in Belfast and our Government, when our Minister for Justice has taken a ministerial decision that a certain offence is a political offence, and that might do nothing to improve relations between ourselves and Northern Ireland. It would be far better if in all those cases the Minister referred the matter to the High Court. If the High Court decides that a political offence is involved, then a different kind of situation exists from one where a political person, namely the Minister, decides that it is a political offence. The Minister and the Government are then not responsible for the decision, as the courts are independent. That would be accepted by the Govemment of Northern Ireland. If they looked for the extradition of a particular person and after going through the ordinary process that it had gone to the High Court, which had declared that it was a political offence, then the Minister could show the requesting authority in Northern Ireland the order of the High Court. That would draw less odium upon the Government in Dublin than if the Minister decided that it was a political offence or decided to refer it to the High Court. It would be far better from the point of our relations with the North to leave the matter entirely to the High Court.
I am very glad to say that this is an additional provision in ease of a person being apprehended over and above the provisions of the English Bill, which contains no such provision safeguarding the person who might be apprehended. We have decided that this shall be included in section 44, whereas the British Home Secretary has no such power in relation to people apprehended there. It is very important that we should ensure to the maximum degree possible that if we are to enter into extradition arrangements, nobody should be extradited from here unless it is proved fully through the ministerial or the judicial route that he should be extradited. Apart from the procedure when the person is arrested, which is on all fours with the British provision, this is an additional pre-arrest provision. As an administrative procedure the Commissioner of the Garda can refer the matter to the Minister or the Minister may request him to refer it to him. Through either route and before the execution of the warrant by the Commissioner, the Minister for Justice may decide that the offence is not one for which a warrant should issue or he may ask the High Court to decide the question of whether or not it is an exempted offence.
I feel very strongly about this section. I think it is proper that there should be this additional provision to ensure that a warrant does not even go out for a person's arrest if the Minister thinks that it should not go out and if he is in any difficulty he can refer it even before the warrant goes out to the High Court for determination. Senator McQuillan was on this point earlier and Senator Sheehy Skeffington also touched on it. It is important to ensure that apart from the courts a ministerial decision can be taken in ease of the person to be apprehended either before he is arrested or after arrest. This enables the Minister to stop any arrest procedure taking place if he feels that it is wrong that a person should be arrested or if he is doubtful, to refer it to the High Court to decide.
I do not doubt at all the desirability of having as many safeguards as possble, and that is my concern in this Bill, to provide as many safeguards as possible for Irish citizens, but what I am concerned about now is the impact of this kind of procedure on what I hope will be our growing friendly relatians with Northern Ireland. One can see the kind of situation when the Minister, if he adopted this procedure, would incur great displeasure on the part of the Northern Ireland authorities, especially if it were a political offence.
What I was suggesting was that this pre-arrest procedure should not be invoked by the Minister but that it should go direct to the High Court. In all likelihood what the Minister would consider a political offence where extradition would not lie would also be considered by the High Court to be a political offence and this irritation would not arise and the whole matter would end at that. If the Minister wants to safeguard the citizen and if the High Court took the decision which was not to his liking and if he felt that in all the circumstances the person should not be extradited, he has all the power at that stage under section 50 which he could invoke.
In the kind of case I speak about the Minister would not have to invoke the power very frequently because the High Court under section 44 would declare the offence to be a political offence so that the necessity for ministerial intervention would be very rare. It is purely a question of the wisdom of exacerbating unnecessarily feelings in Northern Ireland, especially when they decide that the matter is samething where they should gat extradition. It is purely upon that basis that I made the observation. I agree with the Minister that every safeguard possible should be provided for our citizens in the Bill, but I think he is giving himself a troublesome power under section 44.
I can think of no better authority to determine whether an offence is committed than a political Minister for Justice elected by the people.
Then I do not see why we have the High Court in it at all.
The High Court safeguards must be there as well.
Question put and agreed do.
Sections 45 and 46 agreed to.
SECTION 47.
I move amendment No. 2:
In subsection (1), line 46, to delete "Such custody shall be lawful custody".
I am moving this amendment because of an amendment I moved in the Dáil at the request of Deputy Dillon. There was a similar provision in section 40 in respect of transit where we deemed custody by another police force within our jurisdiction as lawful custody. That was said to involve a certain limitation of our sovereignty and I deleted it on Report Stage. It is consistent with that amendment to delete the similar words here.
Amendment agreed to.
I move amendment No.3:
In page 15, to delete subsection (5).
Section 47 subsection (5) provides that after proceedings in the district court terminate there will not be any appeal to the circuit court from the district court. The Minister may say there is always the right of habeas corpus and the right of appeal to the Minister, but I do not see any reason why we should exclude appeal to the circuit court, especially in view of the fact that these proceedings will normally be taken in the Dublin Metropolitan District Court. The circuit court is continuously sitting in Dublin and most of these extradition cases will come before the Dublin Metropolitan District Court. I do not see any reason why a person should not be entitled to appeal to the circuit court. There is no restriction on this right of appeal in the British Act so far as I can gather, and I am wondering why it is introduced in this section.
I am entirely against this amendment because the person already has an opportunity of going to the High Court or making representations to the Minister. It seems to me quite unnecessary that he should also be permitted to go to the circuit court. With certain qualifications, the general rule of our courts is that here is one appeal: from the district court to the circuit court from the circuit court to the High Court, from the High Court to the Supreme Court. Consequently, in accordance with this general principle of normally having one appeal, I see no reason whatever for bringing the circuit court into this. Apart from anything else, it seems to me that it would raise difficulties. If you are entitled to go to the circuit court and you are not satisfied in the circuit court, are you entitled to appeal to the High Court? I see no reason for including an appeal to the circuit court.
Senator Ryan has said what I would have said myself. This is adding an extra legal link in the chain which is already well established in regard to habeas corpus proceedings, where you go straight to the High Court for a determinarion of the liberty of the individual. I think there is an ample set of procedures open to the person apprehended and it is only putting on extra costs and wasting time to go through a rehearing procedure in the circuit court to be followed by an application to the High Court, and possibly a ministerial determination. What went on in the circuit court would only be a rehearing of what went on in the district court.
Amendment, by leave, withdrawn.
Section 47, as amended, agreed to.
SECTION 48.
I move amendment No. 4:
To delete subsection (3) and substitute:
"() The Court in making an order under section 47 shall inform the person to whom it relates—
(a) that he will not be surrendered except with his consent, until after the expiration of fifteen days from the date of the making of the order, and
(b) that he has a right to apply to the High Court for an order of habeas corpus under section 4.2º of Article 40 of the Constitution”
An Leas-Chathaoirleach
Amendmeuts Nos. 4 and 5 may be discussed together.
What I was trying to provide in proposing the new subsection was that the provisions of section 29, which apply the main to non-nationals, would apply equally and with equal clarity to Irish citizens dealt with under Part II. It is a matter of indifference to me whether the House wishes to accept the Minister's amendment or the amendment standing in my name. What I wish to incorporate in section 48 is that the person will be told quite clearly of his right to apply for an order of habeas corpus under section 4 (2), Article 40 of the Constitution. That is not as clear as it might be in the section as drafted and as I said it is a matter of indifference to me whether the House accepts my amendment or the Minister's.
Amendment, by leave, withdrawn.
I move amendment No 5:
In subsection (3), line 16, before "that" to insert "of his right to make such application and".
I think my amendment is clearer, and I think it gives a greater safeguard than Senator O'Quigley's amendment as it obliges the district court to tell the person of his statutory rights under section 50 as well as his habeas corpus rights.
Amendment agreed to.
Section 48, as amended, agreed to.
Sections 49 and 50 agreed to.
SECTION 51.
I move amendment No 6:
In subsection (1) (c), page 17, line 2, to delete "an" and substitute "the".
This is a drafting amendment to delete "and" and substitute "the". The definite article should be there.
Perhaps, the Minister would explain the significance. I should like to hear a dissertation irom him.
It is purely grammatical.
Amendment agreed to.
I move amendment No. 7:
In page 17, between lines 10 and 11 to add to the section a new subsection as follows:
"() In this section, `trial' includes any proceedings in connection with the offence."
This amendment is designed to cover the situation that can arise where an offence might be at the same time a summary and indictable offence. This does happen. It might be argued that the preliminary investigation such as the taking of depositions prior to the trial might not be interpreted as being a trial by the summary court within the meaning of the section as it now stands. In order to clarify the situation it is proposed to add a further subsection providing that "trial" includes any proceedings in connection with the offence. It would include taking of depositions prior to the trial by jury. That would be trial within the meaning of the section.
Amendment agreed to.
Section 51, as amended, agreed to.
Sections 52 and 53 agreed to.
SECTION 54.
I move amendment No. 8:
In subsection (1) line 4, before "in" where it first occurs to insert : "by judicial authority".
Amendment agreed to.
I move amendment No. 9:
To delete subsection (2) and substitute :
"() Evidence with respect to the law of the place concerned that the offence to which a warrant issued by a judicial authority is an indictable offence and not also a summary offence, or that it as a summary offence, punishable by a specified maximum period of imprisonment may be given by affidavit or other written statement on oath and a certificate purporting to be issued by or on behalf of a judicial authority certifying the law at the place concerned may be accepted by the Commissioner as prima facie evidence of the matters stated in such affidavit, written statement on oath or certificate.”
Subsection (2) of this section cannot be read merely in relation to the activities of the Commissioner of the Garda Síochána. As it stands, perhaps it might be all right that the Commissioner of the Garda Síochána need only be satisfied that certain documents were valid for what they said. When section 55 is also read, you are advised in clause (c) of subsection (1) that what is to be regarded as certain evidence by the Commissioner of the Garda Síochána in apprehending a person is in effect to bind the courts of this country. That includes the High Court.
As I said earlier this evening, the position is that no lawyer in this country can know with any degree of certainty what is the law in the various parts of the United Kingdom, to which Part III of this Bill applies. Even the law of England and Wales, which is more closely akin to our own, is not always easily understood by Irish lawyers. Subsection (2) of section 54 sets out that a certificate appearing to be given by the authority—I take it the Minister would agree that that should be by the judicial authority—or the clerk or other officer of the authority by which a warrant was issued, that the offence to which it relates is, by the law of the place concerned, an indictable offence. That is to be accepted without further evidence. The Commissioner of the Garda Síochána may, on the evidence in that certificate, determine the liberty of the citizen to whom that evidence refers. Section 55 (1) says:
In any procecdings, unless the court sees good reason to the contrary——
(c) a certificate appearing to be given in accordance with subsection (2) of section 54 may be admitted as evidence of the matters certified therein.
We are asking the District Court, the High Court and any court, in cases where there are habeas corpus proceedings, to accept that if a clerk of a judicial authority in England or the Isle of Man or other officer signs a certificate saying that a particular offence is an offence in that country, then it is an indictable offence or a summary offence of a particular character, it is binding. The word “may” in this case has a compulsory meaning because there is no other evidence on which the Irish courts can judge.
We are asking the courts to accept that a document signed by a clerk in the Mayor's Court in London, or the clerk or any other clerical person in any other judicial authority, is good evidence of the law of England, the Isle of Man or somewhere else for our courts. The Minister, earlier this evening, spoke about revenue offences, political offences and so on and laid great stress on what was tradition. It has been traditional in this country, and we might as well be quite clear what we are enacting here, that when it is sought to apprehend a person from the State of Massachusetts in America, someone from England, France, or the Isle of Man, it is always done by affidavit made by a barrister or lawyer practising in these countries, an affidavit properly sworn and authenticated before a notary and the consul of the country certifies that the person sioning it is capable of doing so.
In this country, as far as swearing evidence in Great Britain is concerned, we always accept evidence sworn before an English notary. Subsection (2) is in relation to criminal offences and refers to the liberty of the person about which the Minister is very properly concerned and in relation to which he has gone to considerable lengths in the Bill otherwise than in this section. Here we are asking our courts to act upon a certificate issued by some unknown functionary in the office of the courts in England the Isle of Man, the Channel Islands. That information should not be accepted by our courts.
The Minister may say that in Section 55 the words are: "In any proceedings, unless the courts see good reason to the contrary". How can our courts find good reason to the contrary? What opinion do they get? They get a certificate signed by some person who purports to be an officer of the judicial authority in the Isle of Man or somewhere else which says that this is an indictable offence. Our courts have no other means of knowing and they have no choice but to accept what is signed in that document. The other provisions in this Bill with regard to safeguarding the rights of our citizens are satisfactory. The phrase in subsection (2) of Section 54 is completely nugatory. I would strongly urge the Minister to go some distance with me on this amendment.
I do not require that there should be the full authentication by a notary public that you would have if you were dealing with the law in Massachusetts, Belgium or Holland. We should have a statement by the judicial authority in England swearing accoring to his opinion that such is the law and such is an indictable offence. I would urge the Minister not to destroy an otherwise excellent Bill which shows every concern for the wellbeing and the liberty of our citizens by a section which, in my opinion, is a crucial section in the Bill. This is real evidence that will be placed before the district court. I would strongly urge the Minister to have second thoughts about this matter and to have another look at subsection (2). I am aware of certain implications in my own draft. I think the words “prima facie” might be left out and that included in section 55. Notwithstanding that, I do think the amendment which I propose in amendment No. 9 is very much in accord with tradition and indeed is in accord with what has been established throughout the whole of this Bill, solicitude for the wellbeing and the liberty of our citizens, and I would urge on the Minister to have a second thought about it.
An Leas-Chathaoirleach
Is the Senator taking No. 10 as well?
I must ask the Seanad not to accept this amendment. There is a difference in the relationship between the Irish police and the British police and the Irish police and the police of Afghanistan. There is more contact between the Liverpool and Dublin police than there is between the Liverpool and London police. Now, as a result of the Quinn and Hammond cases, we must have a court procedure in every case. This is an important matter I agree but, in fact, the British Bill in this regard is on all fours with our Bill. When the British go to the extent of recognising the Irish peace commissioner I do not think it is unreasonable to recognise an officer of the British authority.
It emphasises how ignorant people can be of the law.
The peace commissioner is spelled out in the British Bill. Then I feel we are not unreasonable in recognising a certificate from an officer of the British authority as prima facie evidence. As it is, I shall meet the Senator to the extent of defining “the authority” as the “judicial authority”. I shall have that considered between now and Report Stage.
Apart from that, I must emphasise that in the section as it now stands the fullest protection is there. The Commissioner's acceptance of this is discretionary. It is very important that the certificate itself when produced in court is prima facie evidence when signed by the proper authority. The Commissioner may object if he wants to and he may raquire further evidence that it is a correct statement of the law. When it comes into court it is still only prima facie and the discrict justice may reject it. Again, if the person is dissatisfied with the nature or validity of the certificate or of any other of the documents, he or she may go to the High Court on the basis of it heing invalid. So there as nothing final in this as it stands. The British agree to recognise our judicial officers, including peace commissioners, and we recognise theirs as well. Where such a document may be accepted by the Commissioner it is being made prima facie evidence, but only prima facie evidence, so far as the courts are concerned.
Again, in these procedures I feel there is ample protection for the person being apprehended. I think Senator O'Quigley's fears are groundless.
The phrase I do not like is police arrangements between the two countries. We all know what police can do happily and amicably between each other and that is very fine for the police and for the Department of Justice but it might not be fine and happy for the citizens of this country.
Let there be no doubt at all about it that in this section we are asking the courts to accept as evidence on a matter that is affecting the liberty of our citizens, the kind of evidence that the courts did not accept in civil proceedings where liberty is not at stake.
What choice is there? What other evidence is there? That is the kind of evidence we are asking. If we want to know, in the case of a will referring to a deposit of £250 in the Savings Bank owned by somebody in the State of Massachusetts, what the law relating to wills in Massachusetts is our courts require an affidavit made by a lawyer in America signed by a Notary Public and certified by the Supreme Court in Massachusetts. In turn it is certified by an Irish Consul who is entitled to certify the Notary Public's signature. That is the kind of safeguard we have in relation to trifling matters such as £250 deposit in the Post Office Savings Bank. Here we are asking in relation to the liberty of Irish citizens that our Irish courts shall act upon the certificate by, as it says, the judicial authority or other person who may have no competence in regard to the law other than he has always been signing these things and he continues to sign them. That is the kind of evidence we are asked in our courts to be bound by. There is no choice.
I should like the Minister to indicate where the choice lies. What alternative evidence is available?
The person apprehended makes the case that the warrant or any of the other supporting documents are not valid or contain incorrect statements of the law. If he does so in the District Court, that Court may determine the matter in his favour and if the district justice determines the matter against him he can go to the High Court by way of habeas corpus application. The person apprehended can raise all the evidence in the world he wishes to destroy or invalidate the warrant on which he is to be extradited.
That is approaching the thing from the wrong angle and is not the traditional approach of our judges on matters criminal. The Minister says the person apprehended can show that the warrant was wrongly signed, that the evidence was wrongly defined, but that is not the case in our courts. Our courts say that it is for the State and for anybody who is interfering with the liberty of Irish citizens to establish beyond all reasonable doubt that the person has committed the offence. The shoe is never on the other foot. It is not for the person who is charged and brought before the court to establish his innocence or to establish that the State is wrong; it is for the State to prove that they are right in saying that the person charged is guilty of the offence. These should also be prima facie evidence before encroaching in any way on the laberties and rights of Irish citizens.
The Minister says that this is a procedure which has worked happily between the Liverpool police and the Dublin police for a long time and that this question of proving laws never arose in the Quinn case. One always admires the great assurance the Minister has about these matters but I happened to be in the Supreme Court listening to the proceedings at the particular time. This question did not arise in the Philip Anthony Quinn case—at least in that part of the proceedings that the public know of.
That was not what I said. I said that the Quinn case and the Hammond case have now made it mandatory for us to provide for the court procedure rather than the police procedure. The point raised by the Senator was not relevant at all to these two particular cases.
Business suspended at 6.5 p.m. and resumed at 7.30 p.m.
Before business was suspended, I was dealing with some things which the Minister had said. I do not think it is correct to say that the sufficiency or validity of the evidence in this kind of extradition cases was ever considered by either the Divisional Court or by the Supreme Court in the Philip Anthony Quinn case. On the contrary, some of the judges of the Supreme Court did direct questions to counsel in the case as to the means by which to establish what was the law in England with regard to particular offences. For that reason I think that whatever may have been the practice up to now in relation to the backing of warrants in this country and in Great Britain is not something we should take as having been critically examined by the courts in this country and having satisfied them as to the correctness of the procedures adopted.
I again stress the fact that the law applicable to offences in England and in the other parts of the United Kingdom to which Part III of this Bill applies is by no means as clear cut as onc would wish it to be for the purpose of this Bill. The Minister referred to the trust which the English Parliament is putting in our peace commissioners. It merely emphasises what I was saying, that evidently the draftsman in England or whoever was advising him came to the conclusion from an examination of our law that Peace Commissioners were to be in some way equated to either a Justice of the Peace or to some similar authority in England. The plain truth is that a certificate issued by a Peace Commissioner in this country in relation to what the law is would be as worthless as a certificate issued by the first man you would meet in the street in the ordinary course of events because a peace commissioner, as we know, has no particular legal competence and does not preiend to have it. It was, therefore, a grave mistake, if I might say so, on the part of the people in England to assume that a Peace Commissioner was a judicial authority as far as the law on this side was concerned.
I would again urge the Minister not to besmirch his own standing or to destroy this Bill by incorporating in it a provision such as in subsection (2) of section 54. I would again urge that the statement as to what the law is in Britain or in any other place to which this Bill will apply should be made by affidavit. The Minister will readily appreciate that that will create no undue difficulty for the authorities in England to have an affidavit sworn as to the state of the law and will be much more acceptable and much more in accord with established legal practice in this country.
The provisions of the English Bill which correspond with subsection (2) of this section are somewhat better than is contained in subsection (2). I have not with me at the moment a copy of the English measure, but my recollection of it is that it goes the distance of having a certificate from a judicial authority. I do not mind if we have that, that if it is a judicial authority and it permits a certificate by a clerk of a judicial authority or of subordinate persons in this country including peace commissioners. That is a mistake on the part of the British. The terms of the British Act, I think. are a little more strict than what is contained in subsection (2). I would most earnestly urge the Minister not to leave this section in its unamended form. He will be deserving of nothing but praise and credit from the members of the legal profession if he makes the amendment which I suggest should be made. He can make it in the certain knowledge that at is much more in accord with established practice than what is contained here.
The Minister may say there is no such provision in the British Act. If any difficulties arise, and I do not think they will, it should be pointed out to the British authorities that the British Parliament as not trammelled— for better or wocse as far as the British citizens are concerned—or inhibited in any way by a written Constitution. We here have a written Constitution and I think that will be recognised by the British authorities as a good reason why we must be very circumspect in incorporating in a statute any provision which circumscribes and limits the liberty of Irish citizens.
In my view the apprehension of Senator O'Quigley in connection with these sections is entirely misplaced. He is concerned with the principle of our law that a citizen is innocent until he has been proved guilty by the State. He is concerned with the principle of the onus of proof which must be discharged by the State. He seems to be overlooking the fact that that principle applies only where a person is accused of a crime, where a person is an accused person standing trial for a crime.
We are not dealing with that in these cases. We are not dealing with persons accused of crime. That is not the purpose of this Bill. We are dealing merely with the machinery for extradition and, consequently, that principle does not apply. Where a person seeks the protection, as it were, of the court—the person who is about to be extradited—the court marely finds whether it is proper for the request to be acted upon. It does not find whether he is guilty of crime. It does not go into the merits of the crime at all. There is no blemish on him at that stage if he is subsequently extradited. He has not been found guilty of a crime. He is not put in any position of being found guilty of anything. The cousts have merely found that the machinery of extradition should go into operation.
He goes to another country to stand trial. In fact, under this Bill he goes to a country where the principle of the onus of proof and the principle that a person is innocent until he has been found guilty operate. He will then have the opportunity of standing his trial, and those principles will operate in his favour. Consequently, no one who is a subject of the sections with which we are dealing will be found guilty of a crime without having the principles in question operate in his favour.
In my view, therefore, Senator O'Quigley is concerned about the consequences and the points which he raised and the principle which he states which, of course, is a very good principle and a proper principle to defend, but they are irrelevant in these circumstances because we are not deaiing with a person accused of a crime being found guilty or not guilty by the court which is dealing with these sections.
Of course, Senator Eoin Ryan is a senior counsel and one is rather abashed at disagreeing with him. If we take it upon the basis of equality as Members of Seanad Éireann we need not be so abashed. I do not know whether the lawyer or the politician was operating when he spoke just now. Of course, I know we are not dealing with whether a person is innocent or guilty. I never said that. What I did say was that the Minister said that if these documents are not in order, or if the offence with which he is charged is not an indictable offence, then the person whose extradition is being sought can prove all these things are wrong. I said that is quite out of harmony with our attitude towards persons we are depriving of their liberty.
We are dealing with crime. This is not crime.
It never lies upon any citizen of this country to prove to any State authority or any court that he is innocent. It is for the State. or whoever wants to deprive him of his liberty, to establish beyond yea or nay that he should be deprived of his liberty. I was merely dealing with the Minister's argument when he said that the person could prove those things were wrong. That is not the way it should be done. It is for the British authorities to satisfy the Irish Minister and the Irish High Court that they are right in seeking the extradition of, remember, one of our citizens. That is what I am concerned about. Senator Eoin Ryan took up the next point and said this is an Extradition Bill. What are we doing? We are forcibly taking Irish citizens——
I am mainly concerned here not with legislating for foreign criminals or suspects but for Irish citizens.
Ninety per cent of the cases will concern British citizens.
I am concerned with the ten per cent who may be Irish citizens. It is the test of any good law that at has regard for minorities. I am concerned with the Philip Anthony Quinns among us who are being extradited. Senator Eoin Ryan said they will be tried in England, but once they have been extradited they have been deprived of their liberty, and their personal freedom, and deprived of their rights to live in this country.
Only while they are being tried, and if they are found innocent they are free to come back or to go anywhere else.
If I am going home tonight and a police officer comes up to me and says : "We have a warrant out for you", I go down to the district court, and appeal to the Minister after 15 days in the Bridewell or Mountjoy or some remand home. That is quite a long time. It is quite a long time for a labourer or anybody else. During all that time he is deprived of his liberty. If that citizen comes back to this country, after being found to be innocent, there is nothing in the Bill to say that he gets even a halfpenny compensation for the time he has been in the Bridewell, in England or anywhere else. The person who is extradited, while he is being proved innocent or guilty, may be lodged in some English gaol for God knows how long. When we extradite a person we are depriving him of his liberty for a minimum of 15 days or much longer. He has to remain there while he is establishing his innocence or the other party has a chance to establish his guilt.
We are compelling the Irish courts from the district court to the High Court, and the Supreme Court if there is an appeal in a habeas corpus case to accept the written statement of some official belonging to the judicial authority anywhere in the United Kingdom as being the law of that part of the United Kingdom. That requirement is quite insufficient to establish the law of any foreign country to the satisfaction of our courts. If the House wants to accept that, it can do so, but I would again most earnestly urge the Minister not to yield to the dictates of convenience or expediency in this matter.
I most earnestly urge the Minister to have regard for the liberty of our citizens and for the dignity of our courts. We should not ask the courts to accept what is contained in the statement of some official anywhere in the British Isles who happens to be a clerk or a servant of the judicial authority. This is the only evidence that the accused person can adduce. It ought not to be for the accused person to adduce that evidence. It should be for the State, which wants to deprive our citizens of their liberty, to produce sworn testimony.
I most earnestly urge the Minister to consider this matter. He will lose nothing in the convenience of time if he insists on that requirement being put into the Bill. It is a complete answer to the British authorities to say: "We have a written Constitution. We have a lot of trouble with this kind of thing. This is what we require." I believe the British, who are always reasonable in matters of this sort, will accept this as a reasonable matter. They require, in their own court, a sworn statement as to the law of this country or any other country in most criminal proceedings which are much less important.
At all stages during the passage of this Bill in the Dáil and here I have been open to constructive suggestions. I have tried to incorporate them in the Bill, but I see no merits whatever in these particular amendments. I have examined them closely. We have, as I said at an earlier stage, safeguards for the person apprehended, which go ahead of the British measure. We have, in section 44, a safeguard where I can refuse to endorse a warrant for execution prior to the warrant being executed if, in my view, the person who is charged is not guilty of an extradictable offence. This is over and above what the British have in their Act. It has additional safeguards in that it empowers the Minister for Justice, before the actual arrest proceedings start, to order that the warrant shall not be executed and that no action be taken in respect of the alleged crime for which the person is being apprehended.
This section is a very important section and is over and above what the British have. In addition to that, in section 50 the Minister for Justice has power which the Home Secretary has not got in the British Act. If the person apprehended refers to the Minister, the Minister may decide to release that person on the basis that the offence is not an extraditable one. The Minister has these powers in both sections 44 and 50. One refers to pre-arrest procedure and the other to after-arrest procedure. They come to the rescue of a person whom it is sought to extradite. The Minister can order that person's release. We have gone very far to ease the lot of the person who is apprehended. We have gone much further than the British have gone.
We come now to the particular amendments to sections 54 and 55. I want to emphasise that our provisions are on all fours with the British in their Bill. We know that the system of law, as operated in Britain, is on all fours with our system in regard to the protection of people. We know, in criminal matters, a person apprehended will get a fair trial in Britain and, as Senator Eoin Ryan says, such a person is innocent until he is proved guilty.
We are concerned here with the machinery of the reciprocal arrangements for extradition between here and Britain. All that is required is that a warrant should be issued by a judicial authority or an officer of the judicial authority. Britain recognies our position in that regard and includes a certificate issued by or on behalf of a peace commissioner. It would be invidious of us not to recognise the officer of the judicial authority in Britain as well. We are doing what the British are doing. As far as the Commissioner is concerned, he may take a document to be a warrant prepared in a proper form if there is an affidavit authenticating the signature on the warrant.
He may accept that warrant as being a due warrant with a properly signed affidavit. He may decide to reject it if it appears to him to be faulty in any way. I want to emphasise that because of what Senator O'Quigley said in that respect on the Second Stage. Furthermore, when a person to be apprehended comes before the district court, that warrant and the affidavit verifying the signature on the warrrant are both prima facie documents. The district justice may decide there is something faulty in the document and on the application of the apprehended person he may decide the warrant is not to be accepted by him. He may require supporting evidence because of doubt he has in his mind or because the person accused may make that application to him. The accused person has that right under section 50 of the Bill to go to the High Court or the Minister. Therefore, you have here, in my view, built in at all stages ample protection for the individual who is apprehended. It is quite clear that the opening preamble in section 55 governs the whole section. It states that in any proceedings, unless the court sees good reason to the contrary, the documentation is accepted. Naturally, the court will be conscious of any good reason to the contrary and will act accordingly and will reject the documentation if it thinks it is not in proper form.
In my view, Senator O'Quigley is completely overstating the case. I see no merit in these amendments. I have been glad to accept previous amendments where there was merit and they will be dealt with on Report Stage. I see no merit whatever in these amendments, either on practical or legal grounds. I would ask the Seanad to accept the two sections.
Amendment put and declared lost.
Section 54, as amended, agreed to.
Amendment No. 10 not moved.
Section 55 agreed to.
SCHEDULE.
Question proposed: "That the Schedule be the Schedule to the Bill".
In connection with the Schedule, there are two previous Extradition Acts—the Acts of 1870 and 1873—which are wholly repealed by the Bill, with the exception of one section in each case. It seems to me rather a pity that as the two sections concerned are quite short, these two Acts were not entirely repealed and the particular sections re-enacted so as to avoid the necessity of having to consult the three different Acts, when possibly one would suffice. Could the Minister make any comment on this?
I agree with Senator Ryan on the desirability, when one is consolidating law in this fashion, to eliminate altogether sections or Acts which are no longer applicable, but the two sections referred to in the Schedule which are exempt from repeal in this measure relate to matters of evidence, to the taking of evidence for foreign tribunals. They will be repealed and consolidated in a measure that is being prepared at present, the Foreign Tribunals Evidence Bill, in the Department of Justice. We hope to have that Bill in statutory form next year and the two sections concerned will then disappear altogether.
Would the Minister tell us how many sections of the Slave Trade Act are still operative?
Section 27 is being repealed. But we shall get round to that, too.
Question put and agreed to.
Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 7th July, 1965.
