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Seanad Éireann debate -
Thursday, 13 Feb 1997

Vol. 150 No. 2

Criminal Justice (Miscellaneous Provisions) Bill, 1996: Committee and Final Stages.


Amendments Nos. 1 and 2 are consequential on amendment No. 3 and all may be taken together. Is that agreed? Agreed.

Government amendment No. 1:
In page 3, between lines 27 and 28, to insert the following:
"‘Act of 1994' means the Criminal Justice Act, 1994;".

The purposes of amendment No. 1 is to define the Criminal Justice Act, 1994, as the Act of 1994 so as to avoid needless repetition of the full Title of that Act in this Bill in the light of the new section 15 which is being proposed. Amendment No. 2 is consequential on the amendment to section 1 and substitutes the new shorter reference to the Criminal Justice Act, 1994, for the full reference to the Act in section 14.

Amendment No. 3 proposes the insertion of a new section, section 15, in order to provide technical clarification of Part VII of the Criminal Justice Act, 1994. Part VII of the Act provides the statutory basis for Ireland's co-operation with other countries in giving and receiving mutual legal assistance. It enables Ireland to respond to requests from other countries for the obtaining of evidence for use in investigations into offences in these countries. Specifically, it has made possible a significant advance in Ireland's participation in international conventions on criminal law, resulting in the ratification last year of no fewer than three important conventions: the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and the Council of Europe Convention on Mutual Assistance in Criminal Matters, as well as the Protocol to that last convention.

The changes proposed to Part VII are not ones of substance but are simply intended to remove possible uncertainties over its operation. The first change brought about by this amendment is the rewording of section 55(4) of the Criminal Justice Act, 1994. The changes from the existing wording are relatively slight and clarify two aspects of the subsection. First, the rewording clarifies who may make a request to the Minister under section 55. Section 55 provides for the issue in the District Court of search warrants on the application of the DPP for material relevant to criminal investigations in designated countries. This is an important element in Ireland's capacity to engage in international co-operation in criminal matters.

Subsection (4) makes clear that an application to the District Court may only be made at the direction of the Minister where she has received a request from, to quote from the existing wording: "...the Government of a country in relation to which this section applies". The potential difficulty with this, which has been identified in operating Part VII of the Act, which is in effect since 15 November 1996, is that a strict interpretation could require every request to come from a Government as a whole, rather than, for example, from an individual Minister. I do not believe this was the intention behind subsection (4) as it would severely restrict the scope of the section and correspondingly limit Ireland's capacity to co-operate with other countries in the investigation of offences.

The amendment, in its rewording of subsection (4), seeks to avoid the possibility of such a restriction by permitting the request not only from a Government but also from a person acting on the authority of a Government. In this context a person would include a body so the additional wording will cover a Government central authority for mutual assistance in criminal matters as well as a Minister of a Government.

The other clarification provided in the rewording of subsection (4) relates to the operation of section 55 as it applies to section 63 of the 1994 Act. I will first explain why there is a link between sections 55 and 63. Section 63 provides for the making by the District Court on the application of a garda of an order requiring a person to produce material to the garda to take away or to give him or her access to it. The section provides a useful alternative to search warrants in obtaining material relevant to criminal investigations. Section 55(2) makes use of section 63 by adapting it so that it can be used to satisfy requests received from designated countries under section 55. However, it is not expressly stated in section 55 that the procedures outlined in subsection (4), for example, regarding directions by the Minister, apply also to the use of section 63 as adapted by section 55. The reworded subsection (4) makes clear, therefore, that the procedure it contains applies not only to search warrants under section 55 but also to orders for the production of material under section 3 as adapted by section 55.

The second change being made to the Criminal Justice Act, 1994, is a technical amendment to remove any small doubt which may exist about the applicability of Part VII of the Act to foreign revenue offences. One of the obligations of the Protocol to the Council of Europe Convention on Mutual Assistance on Criminal Matters is that mutual legal assistance should not be refused on the grounds that an offence is a revenue offence. A question which has arisen in the context of the practical operation of Part VII of the 1994 Act is whether the use of the word "offence" in Part VII in relation to the laws of other countries would be taken to include all offences, including revenue offences.

This was always the objective of Part VII but there is a possibility that the word "offence" might be interpreted more strictly so as to exclude revenue offences on the grounds that, in international law, countries have traditionally not enforced each other's revenue law. My advice is that, while the existing wording almost certainly achieves its objective, it would be safer to remove any small residual doubt by means of the amendment. It is a technical amendment which puts the intention of Part VII of the Act beyond doubt and copperfastens Ireland's capacity to discharge its obligations under international law.

I welcome this vital amendment. This aspect was discussed on numerous occasions in the last 12 months in terms of ensuring Ireland fully co-operates in the control of crime internationally. Crime is not confined to the shores of any state, particularly regarding drug abuse and money laundering. I welcome the amendment which facilitates the full implementation of the views of the Houses of the Oireachtas and the spirit of the legislation.

Amendment agreed to.
Section 1, as amended, agreed to.
Sections 2 to 5, inclusive, agreed to.
Question proposed: "That section 6 stand part of the Bill."

The Minister may recall that I raised a general query on Second Stage about the advisability of having proof of arrest obtainable by certificate in the District Court. I said it is only in a few instances in current practice that various forms of proof are allowed to be given by certificate — for example, road traffic offences such as drunk driving where a certificate of blood or urine analysis is taken as evidence in court. I also indicated that one of the most important parts of a criminal trial is the arrest. Article 40 of the Constitution makes it clear that people have a right to their freedom until it is negatised by lawful arrest.

It is dangerous to enable a certificate of arrest to be given instead of formal proof of arrest. The Minister is aware many trials fail because the defence shows that a person was not properly arrested. I fear that people who have not been properly arrested will be unable to test the lawfulness of their arrest if it is given by certificate. I am disappointed that the concerns I raised on Second Stage about this section do not appear to have been addressed by a Government amendment.

I recall the Senator raising this matter on Second Stage when he said the process of arrest is at the heart of each criminal case. The issue has been given due consideration, but the fears expressed by the Senator are unwarranted. I assume, because he is a member of the legal profession, that there is sufficient in this to enable him to make contributions in the courts. However, the matter has been considered and his fears are exaggerated.

Question put and declared carried.
Sections 7 to 13, inclusive, agreed to.
Government amendment No. 2:
In page 12, between line 23, to delete "Criminal Justice Act, 1994," and insert "Act of 1994".
Amendment agreed to.
Section 14, as amended, agreed to.
Government amendment No. 3:
In page 13, between lines 4 and 5, to insert the following new section:
"15.—The Act of 1994 is hereby amended by—
(a) the substitution of the following subsection for subsection (4) of section 55:
‘(4) No application for a warrant under this section, or for an order under section 63 of this Act as adapted by subsection (2) of this section, shall be made except in pursuance of a direction given by the Minister in response to a request received by him from the government of a country in relation to which this section applies, or a person acting on the authority of such government, and made on behalf of—
(a) a court or tribunal exercising criminal jurisdiction in the country in question or a prosecuting authority in that country, or
(b) any other authority in that country which appears to the Minister to be an appropriate authority for the purposes of this section,
and any evidence seized or obtained by a member of the Garda Síochána by virtue of this section shall be furnished by him to the Minister for transmission to the government or person concerned or, if that government or person so requests, to the court, tribunal or authority for which it has been seized or obtained'., and
(b) the addition in Part VII of the following new section:
56A. (1) For the avoidance of doubt it is hereby declared that, in relation to an offence under the law of a country or territory other than the State, references in Part VII to an offence shall be construed as including references to a revenue offence.
(2) In this section "revenue offence" means an offence in connection with taxes, duties or exchange control.'."
Amendment agreed to.
Sections 15 to 17, inclusive, agreed to.
Question proposed: "That section 18 stand part of the Bill."

The Minister of State should think twice about inserting in the Bill the power to make prison rules given that the Taoiseach has said that responsibility for the Prison Service will be transferred from the Department of Justice to another executive body, and the Minister for Justice as good as said that herself last night. It is a mockery to seek to introduce the power to make prison rules in this Bill when it is the new executive who will make the rules. If it is intended that there will be a separate executive for the administration of prisons yet the rules are to be made by the Department of Justice, that will negate the logic of having an independent prison authority or executive. It is crazy to insert the power to make prison rules when the Taoiseach and the Minister for Justice have publicly stated that the administration of prisons will be a matter for a new authority.

I remember the discussion on this matter on the last occasion and the Senator made rather a meal of it. I am glad he has not done so again. The report of the expert group is expected by the end of this month. This House will have every opportunity to examine legislation arising from the work of the expert group. The provisions of section 18 do no more than update the statutory basis for the making of prison rules by the Minister and sets out the matters which these rules may address. We need new rules to address practical administrative issues that arise now in the prison system. Prison rules are currently being prepared and will be made subsequent to the enactment of these measures. It is a straightforward matter.

Question put and agreed to.
Sections 19 to 23, inclusive, agreed to.
First Schedule agreed to.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."

We disapproved of this matter from the outset. If this was a local authority it is likely that a surcharge would be levied on the Government for duplication and time wasting on the prison aspects of the Bill. In the Official Report of the Dáil of 25 July 1996, at column 928, Deputy O'Donoghue, referring to the Minister for Justice, stated:

... on 11 May 1995 she announced ... "Preparation of a Criminal Justice (Miscellaneous Provisions) Bill ... is at an advanced stage."

The Bill was finally passed in the Dáil on 30 October 1996 and it is now being completed in this House in February 1997. It is clear that the Government is moving at a very slow speed in the criminal justice field.

The Government's criminal justice and penal policy——

An Leas-Chathaoirleach

I cannot allow the Senator to make a Second Stage speech at this point. A brief comment is allowed.

I am speaking on the Bill. This Bill should have been rejected by this House because it will be made redundant by future legislation.

I welcome the passing of this Bill. It will part of the Government's armour to ensure that crime, which has gone out of control over the past 15 years, will be tackled. We should recognise that there was a decrease last year in the level of crime outside Dublin and this Bill will play a part in ensuring there is a further reduction.

I welcome the passage of this legislation because it is important that practical measures are taken to facilitate the detection and investigation of crime and, thus, facilitate the Garda in bringing criminals before the courts. This legislation is effective and practical.

I thank Senators for their co-operation with one exception.

Question put and agreed to.
Sitting suspended at 11.40 a.m. and resumed at 1 p.m.