Extradition (European Convention on the Suppression of Terrorism) Bill, 1986: Committee Stage.

SECTION 1.

I move amendment No. 1:

In page 2, lines 34 to 36, to delete subsection (4) and substitute the following:

"(4) This Act shall apply only in relation to an offence committed or alleged to have been committed after the passing of this Act.".

The purpose of this amendment is in accordance with the well-known principle of jurisprudence that an act which was not an offence when committed should not subsequently be made an offence. Although this is not exactly the same situation, it creates a very similar situation because something for which a person could not be extradited at the time the offence was committed can as a result of this Bill be subsequently subject to extradition. This is objectionable and should not be in the Bill. It is sufficient that it should apply to acts which are committed after the passing of this Act. There is not very much more I can say about it. There is a principle there. It is a principle which has been complied with in 99 per cent of cases. When breached it always creates a great deal of opposition and comment. The principle is very much the same in this case and for the same reasons I do not think it should be departed from.

Sections 3 and 4 of this Bill apply only to a request for the surrender of a person made after the commencement of the Act or to a warrant for the arrest of a person issued after the commencement of the Act. The request or the warrant in question may, however, relate to an offence committed or alleged to have been committed before the commencement date. This point is dealt with in section 1 of the Bill which provides that the Bill will apply, except where otherwise provided, in relation to an offence committed or alleged to have been committed before or after the passing of the Act. The exception referred to is in section 5. Section 5 establishes extraterritorial jurisdiction over offences committed outside the State and that section applies only to offences committed after the commencement of the Act.

There is nothing extraordinary in this provision in the Bill. Indeed, provisions of this kind are normal when new extradition arrangements are being made. The Extradition Act of 1965, for example, applies to offences whether committed before or after its passing. The Extradition Act of 1965 in that respect contained a provision identical to that which we have in this Bill. Similarly our extradition treaty with the United States which was approved recently contains a provision of that type and provisions of that type are to be found in extradition treaties in other countries. These provisions, in my view, are reasonable. If a state decides to put in place a particular agreement on extradition it is saying by that Act that in its view the interests of justice require that persons be extradited in accordance with the terms of that agreement. In that situation the question as to whether the offence was committed before or after the agreement was made or, as in this case, before the legislation is passed is irrelevant.

I would like to make it clear that no injustice of any kind is involved here. There is no question under this Bill of a new offence being created and a provision being made to give that retrospective effect. The Bill does not seek to make something criminal which was not an offence at the time it was done. For anybody to be liable for extradition the act for which he is sought would have to be one that constituted an offence against the law of the requesting state and an offence against the law of our State at the time that the act was committed.

I hope that a final point I make would have no great substance. Were we to make the kind of provision that Senator Eoin Ryan wishes us to make we might be extending an invitation to people to carry out acts of the kind that are dealt with in section 3 of the Bill in the period between now and the commencement of the Act. However, I do not make a big point of that.

I venture in here firstly to seek information. With how many of the signatories to the convention do we have extradition agreements? I understand that it is only with those countries with which we have extradition agreements that the provisions of this Bill will apply. Which of the signatories to the convention do we not have extradition agreements with? Some other signatories to the convention have unsavoury present records and a considerable number of current members of the OECD have at least unsavoury past records. Offences which were committed in the past, say in Greece, that would be breaches of the law here and breaches of the law there could well have a reasonable validity to being described as political offences. I would not necessarily say they were right, but consider acts of violence against the dictatorship in Greece, for instance. If Greece had a right wing government who decided to deal with some of these people in that fashion, it would appear that if we had an extradition agreement with Greece it could cause problems. Which of the countries that have signed and ratified the convention do we have extradition agreements with? What about those countries that have unsavoury pasts and in particular one current signatory which I mentioned and which has a very unsavoury present?

The Minister, of course, is correct in saying that this does not create an offence that did not exist before the Bill was passed but it does much the same thing and from the point of view of a person involved, the situation is much the same. The important thing is that a person should not be put in peril of punishment or imprisonment or something even more serious than that if what he did was not likely to lead to that situation before the passing of the Act. A person who committed an offence but an offence for which he could not be extradited and consequently could not be punished now can be extradited and can be punished. From the point of view of the person concerned it is not a matter of great consequence whether it was an offence. He is now in peril of being punished for something that he would not otherwise be in peril of being punished for.

As far as Senator Brendan Ryan's question is concerned, in effect we have extradition arrangements with all of the countries which have signed and ratified the Convention on the Suppression of Terrorism. The signature and the ratification by those countries of the convention amounts to an agreementde facto between those countries so that we have in effect extradition arrangements with all of the Council of Europe countries which have signed and ratified it.

In relation to Senator Eoin Ryan's further remarks, as I understand it, he has accepted that we are not creating a new offence. As I have said, for an act to be extraditable it would have to have been an offence under the law of the requesting state and of the requested state at the time of its commission. It is not particularly appropriate to say that things should start only after the passing of the Act because, in the nature of things, it can take some time to find out that there is suspicion that a person was involved in a particular kind of act. It would be wholly artificial, now that we have agreed and stated, as we would in this Bill, a particular approach to a particular kind of offence, to insert a cut-off date which is totally unrelated to the action that we want to take or to the way in which we want to treat those requests.

I do not agree with the contention of the Minister that things will not change if this section is passed. Unless we have a definite date for the introduction of this legislation, since the Bill is directed in the main towards Britain and Northern Ireland, cases which would not have been brought before this jurisdiction in terms of extradition could now be resurrected. The British Government could, if we do not have a particular starting date, resurrect a particular extradition request which they could not do unless this Bill is passed.

I am bound to say that Senator Lanigan's statement seems to refer to very hypothetical situations. It is not accurate to say that we would now create the possibility that cases that previously could not be brought before the jurisdiction would now be capable of being brought before it. Of course a request for extradition or a request in the case of Northern Ireland or Britain can be made of us to back a warrant for any offence which is an offence in that jurisdiction and in this. A determination could be made by a court on foot of a claim that the offence was a political offence only after a request for extradition had been made. It is not therefore accurate to speak of situations where requests that could not previously be made could now be made.

Senator Lanigan should think back to the evolution in the approach taken by our courts here referred to during the course of Second Stage debate. He will find that the number of potential new situations that could arise would be very few. Nevertheless if, as I hope we will do, we pass this Bill, we are saying that we will never regard certain specified kinds of crimes as political offences or offences connected with political offences. If, subsequent to that determination by us, it emerges that there is good reason to believe that a person in this jurisdiction may have been involved in that kind of crime and if we are requested to extradite that person, we should extradite him because we have said what we believe about that kind of act. If there was a person in another convention country whom we suspected of having carried out an act of this kind three, four or five years ago, it would be quite reasonable that we should then be in a position to seek to have that person returned here to stand trial. I do not think we should lose sight of the two-way process that is involved in this matter.

I would like to express my concern about the retrospective aspect. Under no circumstances would I excuse in any sense any of the crimes that were committed in Northern Ireland. I am pleased that something that could be excused for political reasons is now being done away with and that the ambivalence is being removed once and for all. There was a time in Northern Ireland, in the early seventies in particular, when many young people were convinced that there was no other way of removing injustices except by those crimes. That was an historic legacy which was left to them. With the passing of this Bill we will be in a totally different position to that which existed in the past in Northern Ireland. There cannot now be any spurious type of excuse for anyone to say that the way is not open to them politically to work for justice, for peace, for a united Ireland or for anything that they wish in that line. That day is now gone. The Anglo Irish Agreement has changed all that.

I am very concerned about young people who got involved in the troubles in the North in the late sixties and early seventies, who have now totally put all that behind them, who have started a new life, who have seen that that is not the way forward and who might, because of the passage of this legislation, be extradited back and tried for those crimes. I appeal that some consideration be given to the fact that we are now in a new situation. While I am not in any sense trying to excuse any of the acts that may have been committed, I am very concerned about that aspect of the legislation.

There are two issues that I wish to raise in connection with this amendment. The first is to elaborate a little on what Senator Rogers said. Whatever the present position of the security forces in Northern Ireland, in the early seventies they were seen by a large section of the Catholic population as a serious threat to their lives. I do not want to go back over old history at great lengths but the security forces, and particularly the police, acted in such a way that if I was living in Northern Ireland at that stage I might have felt that I had a moral justification to use violence to protect my family from their activities. It would still have been an offence to have a firearm.

The circumstances under which people felt obliged to defend themselves in the late sixties and early seventies, which I do not believe exist today, were objective circumstances. It appears to me now — and I would be happy to have some assurance that it is not possible — that if somebody was wanted in Northern Ireland for some other reason and if there was considerable evidence of their use of a firearm in that particularly troubled period in the late sixties and early seventies, then that could be used retrospectively to ensure their extradition back to Northern Ireland, their trial or perhaps their conviction for that offence, and then subsequent trial for other offences that had been committed later and which were perhaps more difficult to prove. I worry about that in the Northern Ireland context.

Secondly, I am deeply disturbed, apart from Northern Ireland entirely, about the fact that there is one country, a signatory to this convention, which has been condemned in the most vehement terms by Amnesty International. I understand from the Minister that we would be committed to extraditing people to that jurisdiction — that is, Turkey. The Amnesty report for 1985 says that there are several hundred political prisoners of conscience in Turkey; that there is continuous, widespread and systematic use of torture in Turkey; that there is continuous and widespread ill-treatment of prisoners in Turkey; that there is serious concern about whether people can have a fair trial in front of military courts; that there is completely inadequate access to lawyers and that there is an inability to consult lawyers privately. As far as I can make out from the Minister, in the case of Turkey, if somebody is alleged to have been involved in an offence which concerned the use of a firearm, they cannot plead that that was a political offence. Even if the person did not commit the offence, the pleading that it would have been a political offence would have been in the past a sufficient defence to prevent them from being extradited.

It appears now that we are willing to extradite people to a country with a particularly disgraceful record on human rights. What this raises for me is, first of all, the question of whether this convention really can be accepted in its present terms but also the possibility of the convention being extended to other countries. I am extremely unhappy that we would be prepared to extradite anybody to a country with that sort of human rights record. Irrespective of the offences they have committed, I do not believe we should extradite people to a country where there is not a reasonable prospect of a fair trial; where there is no guarantee that they will not be tortured and no guarantee that they will not be ill-treated. We have no such guarantees in the case of one signatory of this convention with whom apparently we have now got an extradition agreement. I would like the Minister to explain to me how we can protect people from such abuses.

Senator Ryan's reply to the point that I made suggested that I was making a hypothetical case. It is a fact that under this legislation alleged crimes which have been committed in the past can now be brought before the courts here to have an extradition warrant carried out. Therefore, there is nothing hypothetical about it. It is a fact that, as and from the day that this Bill is passed, there can be retrospection in terms of the actual actions taken.

The Minister in his Second Stage speech and again on Committee Stage in the other House, stated that this Bill is not related to the broad terms of the European Convention on Terrorism but that it is in the main dealing with crimes which are alleged to have been committed in Great Britain and Northern Ireland by Irish citizens. I do not accept that Irish citizens would have the same protection of law in Great Britain or Northern Ireland as they would have in this jurisdiction. For that reason, I am not satisfied that there should be retrospection in this Bill. Only acts committed after the passage of this Bill should come under the terms of the Extradition Act.

This seems to be a reasonable amendment being proposed. I share the concern, particularly as voiced by Senator Brendan Ryan, about having the retrospective element in relation to providing for extradition without there being the possibility of people claiming, as they would have herefore, that the offence was a political offence. I obviously do not condone the type of conduct which would be involved. However, we are talking about an allegation. We are talking about a charge from a particular country. We are talking about an allegation or charge made in relation to a past time. That is a very different thing. We will be talking later about an amendment relating to theprima facie case issue, but all we would have is an allegation made by a country against a person and the request for the extradition of that person. The allegation could relate to a time in that country when there was great difficulty and a lack of any fairness of administration, a dictatorship. Senator Brendan Ryan has mentioned two countries, Turkey in particular, and Greece at a particular time, where we could have very serious concerns and very serious reservations.

I have examined the convention and the explanatory memorandum to the convention. As far as I can see, there is no barrier in the convention to our introducing this amendment in the Bill. I would ask the Minister to confirm if it is the case, that if we wished to do it, there is no impediment in the convention to so doing. If that is the case, then we are fully discharging our obligations. We are carrying out the intention, but we are avoiding a real risk which has been identified in this debate and which is an unnecessary risk to run in the circumstances.

We are talking about confining the Bill to offences committed or alleged to have been committed after the passing of the Bill. That seems to me to be a proper and an appropriate cut-off point. We then know where we are for the future and we can examine closely how the Bill works for the future. We cannot know what requests for extradition might be made on what kind of allegations or in relation to what point in time, in countries which have had a very difficult and a very dubious past. I would ask the Minister to confirm whether I am correct in the view that this amendment would be compatible with the convention on terrorism and then to reply to the points.

I should just like to go back to what the Minister said earlier about why he was opposing this amendment, that we in this country might like to have somebody extradited from a foreign country because of some particularly objectionable offence he was alleged to have committed some years ago and that we should consequently not have this kind of provision in the Bill. The Minister is right in the sense that from the establishment point of view it would be nice to have that power; it would be nice to know that in regard to some offence that we objected to very much we could still get that person extradited, even though it happened some years ago. From that point of view the Minister is right, but we always have to look at these kinds of situation. In every Bill of this kind there is society's point of view, the establishment point of view, and on the other hand the point of view of the person who is going to be concerned.

This Bill is a very important one in the sense that it contains departures from a situation which has existed for 150 years, the principle of not extraditing people who committed what were described as political offences. In principle, most of us agree that certain changes have to be made. Nevertheless, it is a very important departure and it does put people in peril that they would not otherwise have been in. The Minister should look at the other point of view, that is, the point of view of the person who is likely to be concerned and affected by this Bill. While I think it is reasonable in general terms, the changes are necessary, it should be quite sufficient to say that it only applies to offences which are committed after the passing of the Bill. That would be the proper way to hold a reasonable balance between something that we feel should be done and, on the other hand, having regard to the people who might be affected by it.

I would, first of all, like to preface my few words by saying that, whilst I agree with the amendment, at least until I heard the Minister's reply, it would not mean that I will be voting with the people who put down the amendment. I want to make that clear. I am a little puzzled from the point of view of somebody who has had to deal with retrospective situations in life. All the European states condemn terrorism. They condemn it as endangering or taking human lives, or otherwise jeopardising human rights and fundamental freedoms.

I understand the necessity to take resolute action to combat and suppress terrorism. If all the member states, all the people involved in European co-operation on security and so on do not come together to bring legislation in to coincide with the legislation of each state as it comes through, it looks as if we are putting in a clause whereby someone can be put on trial in retrospection for acts of terrorism. I do not think you can legislate that way. You should not legislate by trying to catch up on someone who is ahead of you. Some European states will have passed Bills already and, consequently, are able to put guilty parties on trial. Because our Bill did not run concurrently with those of the other member states I do not think it lessens any of the measures contained in the legislation to suppress acts of terrorism.

I find myself at a loss with regard to retrospection. It has always been a problem to give effect to retrospection in other walks of life because it causes tremendous difficulties. I would like to hear the Minister's views on retrospection. We are legislating on acts of terrorism and if we legislate by sending out search parties for people who are guilty of suppression the spirit of co-operation on a worldwide basis is defeated. When you bring in legislation it should come in with the same sort of determination in mind and not on the basis of trying to arrest someone who got away with a crime. I would not like to see anyone getting away in that sense. I would condemn them totally but I am puzzled about legislating in a retrospective way so as to go after someone who may have got away with something and who may be in some other part of the world. I would have no sympathy with the person if he was caught but I do not understand why it is necessary to take this line.

I concur heartily with the remarks Senator Rogers made at the beginning of her intervention. It is not the case that this provision now creates a situation in which the extradition of persons can be sought in respect of particular kinds of crime. Since 1922 we have had the backing of a warrants procedure with the UK. It was modified in some respects in 1965, but that procedure is what exists today. There has never been a time since 1922 when the UK authorities could not request the handing over of a person to them whom they suspected of having carried out any kind of crime in whatever circumstances in the UK. Even up to today if they thought there were people in Ireland who had committed crimes in respect of which a political defence might have been claimed, the authorities in Northern Ireland or the UK could, and will continue to be in a position, to request the handing over of that person. We do not have any number of warrants outstanding in relation to crimes alleged to have been committed in the early seventies, the late seventies or in the early or mid-eighties. Up to today, and this will continue to be the case, those authorities could seek to have people returned.

I assume that, as in most cases, the backing of the warrant here would be opposed and the matter would have to go before a district court first and perhaps, on appeal to a higher court where the political defence might be claimed. It is not by any means clear even in relation to the kinds of crimes we are now speaking of — Article 1 offences in the convention — that if such a warrant were to be given to us today and the person apprehended on foot of the warrant and brought before the court that the Irish courts would accept the political defence. I again remind the House that there has been a very clear evolution of thinking in Irish courts in relation to that matter. It is not true to say that the provisions we are speaking of in section 1 of this Bill create a vastly different situation. They do not but the Bill puts a certain number of matters beyond doubt in that it provides that certain kinds of crime may never be classified as political. Senator Lanigan is wrong in alleging that for the first time certain kinds of crime committed in the past could give rise to people being brought before our courts with a request to send them to another jurisdiction.

Senator Robinson is right in her suggestion that there is no impediment in the convention to our acting as the amendment proposes. However, at the time the European Convention on Extradition was being prepared there was a proposal to include in the terms of that convention a provision similar to that contained in the amendment before us. The conclusion arrived at as a result of that discussion was that it would not be appropriate to put a provision of that kind in the convention. Largely for the same kinds of reasons I do not think it is appropriate to put it in our Bill.

In relation to Senator Brendan Ryan's concerns we have, effectively, an extradition agreement with Turkey. Turkey is a signatory to the Convention on Extradition. Turkey does not, however, extradite its citizens so it would be open to us not to extradite our citizens to Turkey. That is a matter which would come within the discretion allowed to the Minister for Justice and the courts in Part II of the Extradition Act, 1965. Sections 8 and 9 of this Bill would be relevant to the concerns expressed by Senator Ryan.

Senator Eoin Ryan claims that what we are doing in this Bill is bringing about a departure from a principle which has existed for 150 years. That is not the case. This Bill does not depart from the principle that in some cases a political defence may be claimed. It gives more clarity to the definiton of those kinds of crimes in respect of which a political defence cannot be claimed. That is the purpose of the Bill. In doing that it is doing something which should have been done a long time ago — give the courts a clearer base in law on which to make their own decisions. It is not a question, as Senator Harte seems to think, of our bringing in this kind of provision because we are catching up with everybody else. It would be the ideal situation when a group of countries such as the member states of the Council of Europe finally agree on the text of a convention if they would all simultaneously sign and ratify it but there are many different reasons why that does not happen.

The very simplest is that the legislative process can take longer in some countries than in others. In our own case there was a certain view for a period that we could not constitutionally act in certain ways in relation to extradition. It was only with the passage of time and with the benefit of a number of determinations by the courts that we came to a different view. It is not really a process of catching up so much as a process of the evolution of our own approach to these matters and our own ability to deal with things in the way that other countries have agreed to deal with them.

If we assume that things were otherwise and that we are looking at a neighbouring country which was in the process of legislating for a provision like this or, indeed, even in the context of this Bill, a neighbouring country would come along to us and say that we have reason to believe that x and y, for example, were involved in the Darkley killings should we say, looking at the provisions of this amendment, "Oh no, that was some years ago, we will refuse to extradite those persons, we do not believe they should be handed back" or, should we say "Yes, those cases would fall to be dealt with under the provisions of our law as it is now". We would not be prejudging what the conclusion of a court might be if the matter came before the court because, as I have said, any person whose extradition or return was sought would continue to have the right to contest the validity of the warrant, would continue to have the right to go before a District Court and if he was not pleased with the outcome there would continue to have the right to bring the matter further. I do not think that we would wish to say,ab initio,“oh no, that is not a case that can be dealt with because the matter arose, or the alleged offence, was committed before the passing of this Act”. If we think of it in that way, the provisions of the Bill will be seen as much less draconian and as innovative that it is claimed.

I know it is a very difficult area and I know that you can always point to atrocities such as the Darkley case and people will feel in their hearts that if the guilty people are in this jurisdiction, by all means if they are guilty they should be brought back and tried in Northern Ireland, or indeed tried here under the other alternative legislation. There are a few points I would like the Minister to think about.

First of all, he said that no extraditions had been sought for any cases that had occurred in the early seventies or the mid-seventies or indeed the early eighties. I suggest the reason for that was possibly because in many of these cases it was unlikely, particularly at the time before the courts decided to extradite people and decided that certain crimes were not political in nature, that the extradition would be granted. This Bill is called the Extradition (European Convention on the Suppression of Terrorism) Bill, 1986. I totally agree with the purpose behind the Bill but it is not a Bill to get vengeance against people who have committed crimes in the past. Whereas there might well be a number of those people who would commit those crimes again and who are, unfortunately, not in the least regretting them, I sincerely hold that there are quite a number of those people who do regret and would certainly not get involved in anything like that again. The purpose of the Bill would not be defeated by doing away with the retroactive aspect because its purpose is to suppress terrorism now. To make it retroactive is not going to stop those things happening which have already happened, unfortunately, like the Darkley murders; they have happened and we cannot stop them. What we are trying to do is to stop any more of that sort of thing happening.

I simply point to the fact that in Northern Ireland we have a number of young prisoners, SOSPs, who are imprisoned under the Secretary of State's pleasure. I know that the Irish Government, and indeed we in the SDLP, have been pressing on the British and need to have those cases reviewed because those are young people who got caught up in acts when they were underage and when times were different and consideration ought to be given to releasing them now. The spirit behind that type of thinking is the same spirit in which I appeal for reconsideration of this aspect of the Bill. The purpose of the Bill is to prevent these things happening now from the passage of the Bill; I presume it is from the passage and not from the commencement we are talking about so that there is no question of people thinking "well we have got a year in which we can do what we like".

I again appeal to the Minister on the basis of that principle that the purpose is to stop it happening, to prevent it happening and to ensure that it never happens again and not to deal with the things that have happened regrettably in the past. A number of people who may well be caught up in this have turned over a new leaf and what use is it to society to get revenge or vengeance or whatever against those people? It is people we are concerned about and it is not going to change anything if we bring these people back now, extradite them and have them tried for alleged offences. It is not going to change any of those things which regrettably have happened in the past.

In response to Senator Rogers's contribution, it is my understanding that, for example, if the perpetrators of the Darkley murders were apprehended and their extradition was requested that they could well fail in seeking to claim that what they did was an act committed in connection with a political offence. In other words, they could find themselves in the same position as the McGlinchey-type case before our courts and could, therefore, be extradited.

What I am concerned about in making a general provision, or rather in not ensuring that this Bill would be retrospective in general terms, is more the type of situation which Senator Brendan Ryan has raised in relation to countries which are parties to the Convention which until very recently were dictatorships or about which, like Turkey, we have good reason to be extremely worried not only about how a person would be tried but what might happen to them before the trial or what might happen to them when they were in custody there. The Minister in response to Senator Brendan Ryan pointed out that Turkey does not extradite its own citizens so that under the reciprocity terms we would not be obliged to extradite our citizens. It is much more likely that any request would be to extradite somebody not a citizen of Ireland but somebody who was charged with one of the offences for which it could no longer be claimed that it is a political offence and that this related to a particular period or even perhaps under present circumstances gave rise to worries on our part. It is that kind of risk.

I do not see why we are taking that kind of risk. I do not think it will affect the situation in relation to serious offences in Northern Ireland for which it may be sought to claim that they were connected with political offences because the courts will still apply the judicial case law which has evolved in relation to them. What I am more concerned about is having a Bill which relates to a number of different countries, where there may be a request for extradition, where the person would be put at risk of being extradited, not be able to claim that the offence was a political offence and then find themselves potentially in prison, tortured or whatever in the country or find that they were being tried for an offence for a particular period where the conduct on their part was carried out during a time of dictatorship, during a time of extreme emergency in the country.

It is hard to foresee with total accuracy what the particular problems might be but I agree with Senator Rogers that the main thrust of this Bill is the convention on the suppression of terrorism, is a stand being taken by countries saying they will as of now take certain steps. The House has approved the taking of those steps, I approve the taking of those steps but I do not think we should take any unnecessary risks. Since the Minister has confirmed that this amendment would be compatible with our obligations as a country that has signed the convention and proposes to ratify it, I would submit we should accept this amendment because we should be very careful and very prudent about any legislation which we enact in this area.

In response to my concern, the Minister referred to sections 8 and 9. Sections 8 and 9 are fine in so far as they go, but nevertheless it would be true that in the case of Turkey, in the eyes of Amnesty International a person will not get a fair trial. Therefore, we have no guarantee that a person could not be extradited and convicted on trumped up charges, having possibly been tortured in the interim, particularly a citizen of Turkey. Senator Eoin Ryan and Senator Lanigan have put down an amendment which would meet my reservations but as of now there is nothing in the convention which would enable the extraditing country to make any judgment about whether the person will receive a fair trial. We can refuse extradition if we are satisfied the person is going to be prosecuted or persecuted for racial reasons or if there is evil intent involved, but provided we believe the person is going to be prosecuted for the charge under which the extradition warrant is issued we would have to extradite a Turkish citizen back to Turkey — to a country where people are liable to be tortured or tried before unfair military tribunals. Those who drafted the Convention were being a little too sensitive to Turkish sensitivities. I would have preferred if there was a provision in the Convention where we would have to be satisfied that the person being extradited would receive a fair trial.

This Bill and this section of the Bill have nothing whatever to do with revenge or any concept of that kind. The section itself is a standard provision, common, as I said before, in extradition agreements and arrangements, a provision that was included in the Extradition Act, 1965, a provision that is included in other agreements we have outside the context of the Council of Europe and a provision that is in accordance with the approach taken by the European Convention on Extradition, at a time when similar debate was taking place in the preparation of that convention on the basis of the kind of view put forward in the amendment before us.

In relation to the cases Senator Rogers had in mind, it is not the passage of this Bill that would provoke requests for the return of such persons. If there was to be a series of requests for the return of persons to Northern Ireland it would surely have happened at the time when it became clear that our courts had themselves decided on the basis of their view of the Constitution and the law that certain offences were not to be regarded as political offences. I would like to correct an impression I may have given Senator Rogers. I did not say we had received no warrants for offences committed in the early or mid-seventies or any other periods I mentioned. What I said was that we now have on hands no warrants in relation to offences committed in the early or mid-seventies.

Senator Robinson is correct in saying that the amendment put down would be compatible and could be encompassed in our legislation without doing any violence to the convention. Equally the provision in section 1 could have the same said of it and, furthermore, it is in accordance with the result of a debate of the kind that took place during the preparation of the Convention on Extradition.

In relation to Senator Brendan Ryan's concerns I would draw his attention to section 11 of the Extradition Act, 1965. Subsection (1) reads:

Extradition shall not be granted for an offence which is a political offence or an offence connected with a political offence.

Subsection (2) states:

The same rule shall apply if there are substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion or that that person's position may be prejudiced for any of these reasons.

That provision is there to deal with the kind of situation that Senator Brendan Ryan has referred to. Further, under the terms of the convention and in our law the offence for which the extradition of a person can be sought must be an offence not only in the law of the requesting country but also in the law of the requested country. If, for example, the Turkish authorities sought the extradition from here of a person of whatever nationality for an offence which was an offence in Turkey but not an offence under our law, then we would not be obliged to extradite that person and that person would be entitled to succeed in resisting any such attempt. If the accusation levelled against the person is related to something which is an offence in Turkey but not an offence here, then the extradition cannot take place.

The Minister does not seem to be addressing the nub of my problem. It is perfectly feasible for an unscrupulous government and unscrupulous authorities — and in the view of Amnesty International it would appear that the Turkish authorities are not particularly scrupulous about these matters — to allege that a person, for instance under section 3 (3) (vi), attempted to commit an offence involving the use of a firearm and to seek the extradition of a Turkish citizen from this country. What the Minister quoted from the Extradition Act would provide no protection for such an individual. Yet, the opinion of Amnesty International is that such a person is not guaranteed a free trial. Secondly, if they were to be found not guilty in Turkey, they would be back in Turkey and according to Amnesty International would be liable to torture and ill-treatment.

This can be discussed under a separate amendment. At least the non-retrospective application of this Act will at least guarantee that for the future we would have no such problem, but as of now, a Turkish citizen living here could be extradited to Turkey on a warrant which alleged that they attempted to commit an offence using a firearm and could be brought to Turkey where they would not get a fair trial and where, if they were found not guilty, would still be under the jurisdiction of Turkey and liable according to Amnesty International to detention as a prisoner of conscience, to the possibility of torture which is widespread or to the possibility of ill-treatment. Under the convention we have no way of protecting a person from that treatment. One way of minimising that risk is to eliminate the retrospective effect. A further way would be the third Fianna Fáil method as I understand it. The Minister has not addressed this.

I would like to ask the Minister for clarification. I did not follow fully the point he made about an amendment being proposed to the convention along the lines of Senator Eoin Ryan's amendment we are discussing here and then being dropped. Was that in relation to the European Convention on Extradition in 1957, the earlier convention? That would make it much more understandable. That was the European Convention on Extradition which put forward and safeguarded the political offence exception — that there would not be extradition for political offences or offences connected with political offences — and that is what is reflected in the 1965 Act. Therefore, there would have been much less of the concern we are faced with here, of changing that position in relation to what would constitute a political offence and doing so in a way that would be retrospective.

I say that in particular because it seems to me from the explanatory report on the European Convention on the Suppression of Terrorism which was produced by the Council of Europe that there was a change in policy and approach but it was a change that evolved and is very much a change in that, for the future a certain course of action will take place. For example, on the first page in the introduction to the explanatory memorandum there is reference to the recommendations of the Committee of Ministers of the Council of Europe that there should be a narrowing of the definition of a political offence, in effect. It says, and I quote:

The idea underlining this resolution is that certain crimes are so odious in their methods or results in relation to their motives, that it is no longer justifiable to classify them as political offences for which extradition is not possible.

That is the situation we are in in relation to acceding to this later convention on the suppression of terrorism and the consequential changes in our own extradition law, that it is no longer justifiable. That is more fairly done if one says it is no longer justifiable and therefore will apply to offences committed or alleged to have been committed after the passing of the Act. Otherwise we are saying it is no longer justifiable and are making it no longer justifiable retrospectively. That seems not to be fully in accord with the kind of principles which should apply. As Senator Eoin Ryan said in opening on this amendment it is close to making something an offence retrospectively. It is not doing exactly that, but it is saying that what was justifiable at a certain period is no longer justifiable. But we do not do it for the future; we say it is no longer justifiable and we are making that retrospective. Even though the Minister has referred to the consideration of a similar amendment in relation to the earlier Convention on Extradition, I do not think that is a particularly weighty argument given that that Convention on Extradition safeguarded and indeed promoted the exception of the political offence or an offence connected with a political offence and gave rise to the advice of the Irish members of the law enforcement report set up at the time of Sunningdale. This was a mandatory principle of international law and therefore we could not depart in any way from the putting forward of the defence that the offence was a political offence or was connected with a political offence and therefore there could not be extradition for it. The arguments in support of Senator Eoin Ryan's amendment are actually reflected in the thinking behind the convention itself and the explanatory report of it, that something is no longer justifiable. Because of the way in which the acts of terrorism have increased on the European level, European states have viewed with concern the operation of a political offence exception. The way in which it was operating was no longer justifiable. It seems that that is better reflected in legislation which does not have a retrospective element in it. Again, I agree with Senator Brendan Ryan that his particular concerns have not been answered.

I think Senator Robinson's perspective on this is a little too narrow. I take the point she makes about the evolution in thinking and approach that emerged after the drawing up of the Convention on Extradition and was to lead to a different view being taken some time later of the scope of the political offence exception. I think what Senator Robinson meant when she used the word "justifiable" would be more accurately conveyed "non-extraditable."

I am quoting from the convention. It was not my word.

They were not speaking of crimes being justifiable; they were speaking of a certain approach to political crimes being justifiable. However, the fact is that it is recognised that there was a development in thinking which led to the terms of the European Convention on the Suppression of Terrorism.

When the countries of the Council of Europe were preparing the European Convention on Extradition they were in fact taking, from many points of view, a far more fundamental step than they were taking in framing the Convention on the Suppression of Terrorism because, for the first time, they were saying, "we will agree among ourselves as a group of countries that we will extradite persons to one another on the conditions laid down in the convention". It was within that framework in taking a fundamental step of that kind, that they had the debate to which I referred and came to the conclusion that the Extradition convention should adopt the same approach to the matter that we are now discussing as I have proposed in the Bill.

Taking the argument in the terms in which Senator Robinson has put it, if they took that approach while taking that fundamental step then it was legitimate, in their view at that time and the conclusion I would draw from Senator Robinson's argument is that in fact it is illegitimate for us to take the same approach in the context of this Bill.

Senator Brendan Ryan feels that I have not addressed his question. If I have not then I apologise to him for that. In fact Senator Brendan Ryan seems to be under the impression that the amendment proposed by Senator Eoin Ryan would introduce, as from now, certain protections which people do not have in relation to the concerns he expressed about Turkey. That of course is not the case. I have reminded the House of the provisions of section 11 of the 1965 Extradition Act. I have reminded the House that in every case where extradition or the backing of a warrant is sought a person can contest the validity of the request or warrant. He can go before the District Court and, if necessary, to a higher court. It is open to that person, invoking the terms of section 11 of the 1965 Act among others, but invoking the terms of that section, to plead before the court that case is, as Senator Ryan alleges it is, and that for all of those reasons that Senator Brendan Ryan has developed we should not give effect to the request. It is up to the court then in each case to decide on the basis of the law and practice whether it accepts the claim that is being made by that person.

It is not true to say that there are no protections in place now. There are protections in place. The fact of the matter is, of course, that they have never been invoked because we have never had, as far as I know — I speak subject to correction and if I need correction I will immediately communicate it to the Senator — a request for extradition so the matter has never arisen. It is probably for that reason that people may feel there are no protections there. They are there. They are in the terms of the 1965 Act which in fact we are repeating in a slightly different context in the Bill before us.

There is also another aspect of this that I would like to ask the Minister about. What will be the position with people who, say, in the early seventies had, on the advice of their own counsel, admitted that they were in the IRA and that they had carried out the alleged offences for political reasons or in defence of their own community? What would be the position now if a District Court produced evidence supplied to the RUC of affidavits sworn by those people at that time in the situation which existed then? What would be the position if that were now turned against them as evidence and used in the courts as evidence that they had been members of the IRA and had committed these crimes? I would like to know what the Minister's reply to that would be.

I am not at all sure that I am the person to whom that question should be addressed. It seems that that question should more properly be addressed to the authorities who would initiate the prosecution. I thought in the beginning that Senator Rogers might be referring to cases which had been determined in a court in a certain way and that the prosecution might now, for one reason or another, have second thoughts and decide to try the matter all over again. It seems that that question is one I cannot answer. It is one that would have to be answered first of all by the prosecuting authorities in the relevant jurisdiction.

It would be a total injustice if people, who under circumstances prevailing in the early seventies where the courts accepted the concept of a political crime, swore an affidavit stating in their own defence that they were members of the IRA and that they had done things in defence of their own people or their own area, and that therefore it was political, in the new situation which may arise if this Bill is passed without amendments, could have that evidence used against them. I am not a legal person and I do not understand absolutely how the law works, but as an ordinary person concerned about people's rights, I am very worried that those people would find that they had in effect helped to convict themselves in a new situation, when they had sworn the affidavit in a different situation. It is very worrying that that should be allowed to happen. May be the lawyers in the Seanad would like to comment on it.

I am not sure that I understand the scope of the question by Senator Rogers but it seems to me that the first place that that question should be put to is the prosecuting authorities, who might now decide, for one reason or another, to take a different view of a case from that which they would have taken ten or 12 years ago. It would be up to the prosecution authorities to justify acting on the basis of that different view. If the question relates to a case where conceivably an order for the return of a person was sought from here and a political defence was successfully claimed at an earlier time, and the matter was disposed of in that manner, the question would really then be whether a resubmission of that case here under the terms of this Bill would now result in an extradition. I could not answer that question, because it would be for a court to determine. The court would have regard to all of the circumstances of the case. I could not anticipate what decision a court would make there. It can only be in relation to extradition cases that that kind of question might conceivably arise, because, within the confines of the domestic jurisdiction there is no such thing as a political defence. The question that would have to be resolved in relation to extradition is not the question of guilt or innocence but the question of whether the person is liable to be extradited and I simply could not say how a given court would react to a case where there had previously been a refusal of extradition and where the same matter was brought before the court to re-examine that question.

It is becoming clear to me as a non-legal person that Senator Eoin Ryan's original point is reinforced by this. The fact that it will be a matter for the courts, means that people may have sworn affidavits in a totally different situation, which will now be used against them in the new situation. They did something within the situation prevailing in the early seventies, which could now possibly — because, the Minister, cannot give a guarantee — be used as evidence against them in a new situation. The Minister cannot guarantee that that will not happen. It would be a matter for the prosecuting authorities and in the case of someone being extradited from this jurisdiction into the North would it be a matter for the prosecuting authorities in the North?

It is not a question of what I can and cannot guarantee. I am not in a position to give guarantees. I do not think I used the word. What I said is that I cannot say how a court would decide on the issue. I am not saying that I can guarantee what view the prosecuting authority would take of it because I cannot say what view the prosecuting authorities would take. The initiative would have to come from the prosecuting authorities in Northern Ireland in the cases to which Senator Rogers is referring. They are not in any way beholden to me for their activities. I have no function in the matter at all. I cannot say what approach they would take to the kind of case that Senator Rogers has in mind. But if the prosecuting authorities elsewhere were to take a different view, in cases of the kind that Senator Rogers is hypoth-esising at the moment, it is not now that they would begin to take that different view. They would have taken that view, if there was any validity in it, at a time when it was established in our courts that the political offence exception was not as wide as we had previously thought it was. Had there been, or were there a disposition on the part of prosecution authorities there, to act in the way Senator Rogers is suggesting, we would have seen it by now. Because, at no time was it ever the situation that a case could not be brought to us here. Since 1922 any case can be brought here. The only thing that is always in doubt is what decision the court will actually make about it. Given the development outlined by Senator Robinson last night of the way in which courts approached these particular kind of offences, it would be logical to expect that if there were to be any change in approach it would have happened before now when the courts had made it clear that their view is the one they have taken now in a succession of cases.

I am not suggesting that the Minister can ever guarantee what is going to happen in the courts but what I am trying to suggest is that by amending the legislation the Minister could guarantee that this type of thing could not happen. If it were not retroactive the extradition of those people could not be sought.

It could be sought.

It could, I am sorry. I am concerned about that particular aspect of people's evidence being used in order to gain a conviction.

I am coming in on this point with some reluctance because I do not have any authoritative answer to the very serious issues raised by Senator Rogers. My recollection, not a perfect recollection, is that the Supreme Court in a comparatively recent case allowed the defence of a political offence in relation to a person who had been involved with others in the perpetration of the offence and the others had at an earlier stage pleaded and relied upon and availed of the political offence defence. I cannot remember the name of the case. It was a case decided about two years ago by the Supreme Court where in applying equity as between defendants, the Supreme Court made it clear that in the circumstances of that case, since the other persons involved had availed of, and had successfully contested their extradition, by pleading that it was a political offence, they would not single out the one who came before the courts after the evolution of the approach following the McGlinchey case. That is a somewhat hazy recollection but it shows that the issue is a real one. It is more a question of trying to formulate the risks.

What I would be concerned about is that following the passage of this Bill as it stands the court dealing with this matter would have before it legislation which said that it applied to an offence committed before the passing of the Bill. Therefore there is at least a risk of this kind of situation. Like Senator Rogers, I do not see the merit of exposing ourselves to this kind of risk. I would prefer if we had taken a very clear stand on the convention and on our own extradition legislation, that we knew what we were doing and were not exposing people to potential risks of that kind. I support the points she made.

Some of my colleagues have been able to make a much stronger case for this amendment than I have been able to make myself. In view of the fact that the Minister has conceded that there are certain situations which might arise which would certainly be unjust to the people concerned and in view of the fact that he, I think it would be fair to say, did not envisage them when this Bill was introduced he should consider agreeing to this amendment. As I said earlier, the Bill will achieve 95 per cent of what it is setting out to do even if this amendment is agreed to and the Minister should be satisfied with a situation where the Bill is going to achieve most of what was intended when it was introduced.

There are very serious risks in not allowing this amendment and two different situations have been suggested by Senator Rogers and Senator Brendan Ryan. There are very serious risks involved in both cases. The Minister should accept that that is a risk and that in all the circumstances it would be safer to agree to this amendment. By so doing he would be taking from the Bill in a very small way but most of the purpose of the Bill would be achieved.

Let me make it clear that contrary to what Senator Eoin Ryan has said, I have not conceded that certain risks would arise. What I have said it that in the event that situations such as those hypothesised by Senator Rogers might arise it seems that they would have arisen when it became clear that our courts had taken the line they have taken in relation to the political offence exception and that that would not arise simply because of the passage of this Bill.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 27; Níl, 17.

  • Belton, Luke.
  • Browne, John.
  • Bulbulia, Katharine.
  • Connor, John.
  • Cregan, Denis (Dino).
  • Daly, Jack.
  • Deenihan, Jimmy.
  • Dooge, James C.I.
  • Durcan, Patrick.
  • Ferris, Michael.
  • FitzGerald, Alexis J.G.
  • Fleming, Brian.
  • Harte, John.
  • Higgins, Jim.
  • Hourigan, Richard V.
  • Kelleher, Peter.
  • Kennedy, Patrick.
  • Lennon, Joseph.
  • McDonald, Charlie.
  • McGonagle, Stephen.
  • McMahon, Larry.
  • Magner, Pat.
  • O'Brien, Andy.
  • O'Leary, Seán.
  • O'Mahony, Flor.
  • Quealy, Michael A.
  • Ross, Shane P.N.

Níl

  • Conway, Timmy.
  • de Brún, Séamus.
  • Fallon, Seán.
  • Fitzsimons, Jack.
  • Hanafin, Des.
  • Honan, Tras.
  • Kiely, Rory.
  • Killilea, Mark.
  • Lanigan, Mick.
  • Lynch, Michael.
  • Mullooly, Brian.
  • O'Toole, Martin J.
  • Robinson, Mary T.W.
  • Rogers, Brid.
  • Ryan, Brendan.
  • Ryan, Eoin.
  • Ryan, William.
Tellers: Tá, Senators Belton and Harte; Níl, Senators W. Ryan and Séamus de Brún.
Question declared carried.
Amendment declared lost.
Question proposed: "That section 1 stand part of the Bill."

I should like to ask the Minister to clarify the interpretation of "convention country." As set out there it says the "convention country means a country other than the State for the time being standing designated in an order under section 2". Section 2 provides what could be regarded as an enabling section, that the Minister for Foreign Affairs may, by order, designate the countries which are parties to the European Convention. In relation to understanding what is meant by "convention country" for the purpose of this Bill, is the Minister for Foreign Affairs required to designate a country once that country has ratified the convention, or is there a discretion which would reflect on the definition of "convention country" not to designate certain countries? For example, going back to some of the earlier debate, there were reservations by Members in regard to Turkey but Turkey has ratified the convention. Could it be excluded from the definition of "convention country" if it was not designated by the Minister? Does the Minister have a ministerial discretion in that matter or is he bound to designate it once a country has ratified the convention, whatever reservations might be felt?

The Minister is required to designate countries who have ratified the convention. He does not have a discretion in the matter.

In that case, why are we providing for the designation? Why do we not simply have a definition that the "convention country" means a country which has ratified the convention?

The provision is there for the information of the Houses of the Oireachtas. It is to provide a means by which the Houses of the Oireachtas can be informed if another country has become a "convention country" by ratifying the convention.

Question put and agreed to.
NEW SECTION.

I move amendment No. 2:

In page 3, before section 2, to insert the following new section:

"2.—(1) No citizen of Ireland shall be extradited pursuant to the provisions of this Act, or the Act of 1965, unless the provisions of subsection (2) of this section have been satisfied.

(2) No order for the extradition of an Irish citizen shall be made unless the District Court is satisfied, on the evidence before it, that there is a sufficient case which would warrant the sending forward for trial of that person as if the offence alleged were an indictable offence and had been committed within the State.

(3) (a) For the purpose of subsection (2) hereof evidence may include or consist of documents referred to in section 6 (1) of the Criminal Procedure Act, 1967.

(b) The said documents shall be served on the person whose extradition is sought and copies shall be furnished to the Court.

(c) A document served pursuant to paragraph (b) of this subsection shall be received in evidence without further proof if it purports to be signed or certified by a judge, magistrate or other judicial officer of the requesting country or place and to be authenticated by the oath of some witness.

(4) (a) Where the extradition of an Irish citizen is being sought in respect of an offence for which that person has already been convicted in the requesting State, subsection (2) of this section shall be deemed to have been complied with if evidence is tendered which satisfies the District Court of the fact of that conviction.

(b) Provided always that no person shall be extradited if that person has been tried and convictedin absentia..”.

This amendment is principally to deal with the question of whether a person can be extradited without aprima facie case being made against him or her. It also deals with a case where a person has been convicted, and that is a different matter, but principally it deals with the question of a prima facie case being made.

I would like to point out that the amendment merely deals with the case of citizens, of nationals of Ireland. It only provides that in the case of nationals aprima facie case must be made. I know it can be argued that if we provided for this in the case of extradition to all the countries involved in the convention it would create certain difficulties and, consequently, it provides only in the case of Irish nationals. It would probably create difficulties in the case of other countries because some of them do not have the procedure for requiring a prima facie case to be made and it would be inappropriate to that extent.

What is provided in this amendment is that in the case of an Irish national for whom extradition is sought, aprima facie case must be made before extradition is granted. This seems to be an eminently reasonable requirement because if he cannot be sent forward for trial in his own country without the case being made, then why should he be sent forward for trial in another country? The arguments seem to be very much in favour of it. It should be looked at in the context of the fact that many other countries who have signed the convention have signed it with various reservations. A great many of the countries involved will not extradite their own national at all. That applies in the case of Germany, France, Belgium, Austria, The Netherlands, Switzerland and Sweden. They will deal with it in another way but they will not extradite a national. I realise there would be considerable difficulties if we were to adopt the same reservations as these countries and say we will not extradite a national. Because of the position in the North of Ireland and the UK, that would obviously make the situation very difficult indeed but not impossible because they could still be dealt with under the Criminal Law (Jurisdiction) Act, 1976.

In this amendment in the case of Irish nationals, we are going a long way towards accepting the spirit of the convention — we will extradite them but only if aprima facie case is made against them. On the one hand that is being reasonable and is going a long way towards doing what this Bill requires us to do but, on the other hand, it gives some protection to our own nationals. It gives the protection which they would have in their own country if they were charged with an offence and under that situation they would not be sent forward for trial unless a prima facie case had been made.

That is the principal provision in this amendment. In all the circumstances it goes a long way towards meeting our obligations under the convention and, at the same time, it provides the same kind of protection that a national would have if he was charged with an offence in this country. I cannot see how any strong argument could be made against adopting this amendment. There are many reservations expressed by various countries in regard to this convention. Reservations are made in regard toprima facie case, to nationals, to the kind of court that the person might be tried by and in regard to who decides whether it is a political offence.

In regard toprima facie case, extradition will not take place from the United States, the United Kingdom, Denmark, Israel or Norway; according to a list I have here they will not extradite unless a prima facie case has been made. A number of other contries have similar provisions. The prima facie procedure would not be applicable to many of these countries which have an inquisitorial system. Countries such as Germany, France, Belgium, Austria, Italy and The Netherlands have similar kinds of protections in regard to extradition which cannot be prima facie because it would not apply in these countries, but there are similar protections of that kind.

In all the circumstances, an amendment to provide that our own nationals will not be put in a worse position than they would be if they were charged with an offence in this country is a reasonable one. Against the background of these various other countries who have introduced various reservations, this would seem an eminently modest provision, a very modest protection for our own citizens and one which is in no way contrary to the spirit of the Bill or the spirit of the convention.

Is the amendment withdrawn?

It might perhaps be withdrawn. It should be withdrawn because I cannot accept it. The effect of the amendment would be to impose a requirement that aprima facie case be made out before our courts before extradition of an Irish national could be granted. From the terms of the amendment it is clear that that requirement would apply in all cases. It would apply, therefore, in ordinary criminal cases as well as the kind of cases to which this Bill applies. I dealt with this matter at some length last evening on Second Stage and I do not intend to go through all of those arguments again.

I want to make a number of points because I think there are a number of misconceptions about what is involved in aprima facie requirement. The combined effect of this amendment, and of the following amendment in the names of Senator Eoin Ryan and Senator Lanigan, would be to make extradition impossible in practical terms. If accepted, they would also amount to a very public and totally unambiguous statement both to the people of Northern Ireland and the people of Britain that we were abandoning the Anglo-Irish Agreement and all that means to all of us. The purpose of the Bill is to strengthen our extradition arrangements in accordance with trends to which our European neighbours subscribe. If these amendments were adopted we would throw overboard the legal advance we have been making for some time in our efforts to deal with terrorism.

The Bill relates to acts of terrorism which can occur in any part of Europe. The reality is that we are dealing almost exclusively with cases which have a Northern Ireland connection, whether they involve violence perpetrated in Northern Ireland or in Britain. In that context almost all of the people who would be sought here would be likely to be Irish citizens because, as I pointed out the House last evening, we have the widest citizenship laws of any of the countries that are signatories to the European Convention on Extradition. We are in a position that is unique in Europe. No other state in Europe, in looking at its extradition laws, has to deal with the situation where virtually everybody in another jurisdiction is a citizen of that state under the laws of that state.

I might be asked what that has to do with theprima facie requirement but it has a great deal to do with that requirement particularly as it is proposed here. If we impose that requirement in relation to Irish citizens we are in practice imposing it in relation to everybody in the context of Northern Ireland. In doing that we would be abandoning an approach which is now established throughout Europe with a couple of exceptions. Even those exceptions have a much more limited significance than might appear at first sight. A civil law country operates a system by which a case is made in large measure by documentary evidence. Our system is geared to oral evidence and to establish a prima facie case, witnesses may have to be brought before a court and be available for examination.

Senator O'Leary earlier in the debate made the point — and it was conceded by Senator Fitzsimons — that when we speak of aprima facie case we are not referring simply to the provision of a Book of Evidence. The making of a prima facie case at a preliminary examination under our law may involve witnesses being called and examined on sworn deposition. The proposed amendment refers to the Criminal Procedure Act, 1967. Under section 7 (2) of that Act either the prosecutor or the accused or both is entitled “to require the attendance before the justice of any person, whether included in the supplied lists of witnesses or not, and to examine him by way of sworn deposition”. Such a person can be cross-examined and re-examined on his evidence. I do not need to labour the point that such a procedure would create very serious difficulties in extradition cases particularly in connection with producing witnesses from another jurisdiction.

The amendment at subsection (2) says "no order for the extradition of an Irish citizen shall be made unless the District Court is satisfied, on the evidence before it, that there is a sufficient case which would warrant the sending forward for trial of that person as if the offence alleged were an indictable offence and had been committed within the State". The amendment provides at subsection (3) (a) that evidence may include or consist of documents of a kind that are included in a Book of Evidence, but the amendment does not confine the type of evidence that might be adduced to documentary evidence only. Even if it sought to do so, it seems to be quite certain that this would not and could not work.

The reason I say that it would not work is that a justice is not necessarily satisfied at a preliminary hearing on the basis only of statements and other documents taken at their face value. An important element in a preliminary case before a justice is the fact that the defendant has the opportunity to have witnesses examined on sworn deposition. If he does not exercise that right then that fact is relevant to the justice's decision. It is one thing to accept, as being adequate, evidence that is uncontested where the opportunity to contest it has been provided. It would be an entirely different matter to accept the evidence where that opportunity has not been afforded. It is realistic to say that practically every extradition case would be contested. The amendment as it stands is not workable because it leaves open the possibility of witnesses having to be called from a foreign jurisdiction. Even if it were modified to take account of that difficulty, I would suggest that it is not a practical proposition in the context of our general law. I am therefore opposed to it on those grounds.

There are other practical difficulties in addition to the ones already mentioned. Any evidence tendered would have to conform with the rules as to the admissibility of evidence under our law. The general rule under our law is to exclude hearsay evidence. That apparently simple rule would present difficulties to a civil law jurisdiction seeking the extradition of a person. The practice in some of those countries is not to take statements direct from witnesses but for a police officer to testify in writing as to what witnesses said to him. Theproces verbal presented to an investigating magistrate in France, for example, may consist of a written statement by a police officer acting as an agent of the magistrate and relating what witnesses have said to him. Even as between common law jurisdictions, as between our jurisdiction and that of Northern Ireland or Britain, there can be considerable differences in rules as to the admissibility of evidence.

There is also the point made by Senator Dooge last evening that extradition is not a one-way process. If we were to impose aprima facie requirement in relation to extradition applications from, say, Northern Ireland or Britain, considerations of reciprocity would almost certainly lead them to do the same in the case of applications sent to them from here. That would mean that a very serious impediment would be put in the way of our securing the extradition from Britain or from Northern Ireland of persons wanted here for any kind of crime including the kinds of crime that we are speaking of specifically in the context of this Bill but also in relation to other kinds of crime. I do not think that that is a development that we would welcome. I would regard it as being a retrograde step not only in relation to terrorism but in relation to our ability to deal with crime generally. For those reasons I cannot accept the amendment.

I want to make one final and very brief point, that it is not accurate to allege that there are no protections for persons without aprima facie case because, of course, in other jurisdictions when a person has been extradited the question arises of a committee hearing in that jurisdiction. What we decide on here in relation to requests for extradition is the simple question of extraditability, not the question of guilt or innocence.

Progress reported; Committee to sit again.