I thank you, Sir, for facilitating me by adjourning the House.
On many occasions, Irish people have been appalled by the chilling reports we have received from around the world of terrifying acts of torture being inflicted upon countless men, women and children. The depth and scale of the pain and misery, which these reports have revealed, almost exceeds our comprehension. I know Senators will fully agree with me when I say that acts of torture have no place in a civilised society. The Government fully supports efforts to bring to justice those guilty of the heinous crime of torture. Given the commitment which this House has shown in defending and promoting human rights worldwide, I was glad to be able to initiate the Bill in this House and I have no doubt Senators will welcome this legislation.
The Bill, when enacted, will enable Ireland to ratify the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Against this background, the Bill creates a specific statutory offence of torture with a penalty of up to life imprisonment; allows a person to be tried here in relation to the commission of the new offence anywhere in the world; and prohibits the extradition of a person from this State where there are substantial grounds for believing that if the extradition were to take place the person may be subjected to torture.
The background to the Bill is as follows. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the General Assembly of the United Nations in December 1984 and entered into force in June 1987. In September 1992 the Government authorised the Minister for Foreign Affairs to arrange for the signature of the convention on behalf of Ireland. Ireland signed the convention on 28 September 1992. There is widespread acceptance that Ireland's ratification of the torture convention is overdue and it was in that context that as Minister, I directed that this measure should be included as a priority in the very extensive programme of law reform which I have undertaken.
For Ireland to proceed to ratify the convention, it is necessary to ensure acts of torture, as defined in the convention, are offences under Irish law. The main purpose of this Bill is the creation of a statutory offence of torture in line with that contained in the convention, thus facilitating our ratification.
There is no statutory offence of torture in Ireland at present. However, the courts have held that the unspecified personal rights guaranteed by Article 40 of the Constitution include freedom from torture and from inhuman or degrading treatment and punishment. It should be borne in mind that in the absence of a specific offence of torture, actions which amount to torture may also amount to other offences under our law, such as serious assault offences. In addition, in the context of extradition, it has been held that it should be refused if the court is satisfied, as a matter of probability, that a person would, if delivered into another jurisdiction, be subjected to assault, torture or inhuman treatment. Because these judgments have applied primarily to acts of physical torture it is not certain that acts or omissions which could amount to mental torture would be equally covered. In all the circumstances, it is therefore desirable to create a specific offence of torture which includes acts and omissions which inflict both physical and mental suffering and to provide appropriate penalties for them.
Under the Bill, and in line with the convention, torture will consist of the intentional infliction of severe pain and suffering, mental or physical, on a person for the purpose of obtaining from that person, or another person, information or a confession; punishing that person for an act which he or she, or another person, has committed or is suspected of having committed, or intimidating or coercing him or her, or another person, or for any reason based on discrimination of any kind.
However, it will not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. This too is in line with Article 1 of the convention. In view of the seriousness of the offence, a person found guilty of the offence of torture would be liable for up to life imprisonment. The Bill also contains provisions dealing with offences such as aiding and abetting or attempting or conspiring to commit acts of torture, as well as acts designed to frustrate efforts to apprehend and prosecute persons for an offence of torture. A person found guilty of such an offence will also be liable to life imprisonment. Proceedings for an offence of torture, which may only be taken by or with the consent of the Director of Public Prosecutions, may be taken in any place in the State and the Bill will enable persons charged with the new offence committed abroad to be tried anywhere in the State.
The creation of the new offence of torture necessitates the amendment of a number of other Acts. Accordingly, the Extradition (Amendment) Act, 1994, is being amended to provide that the new offence of torture will not be considered a political offence and that extradition cannot be denied on that ground. The Defence Act, 1954, is being amended in respect of the jurisdiction of courts-martial to deal with the new offence of torture. The Criminal Procedure Act, 1967, is being amended in respect of the procedure in the District Court where a person is charged with torture and to provide that bail may be granted only by the High Court in such cases and, to give effect to the convention, the Extradition Act, 1965, is being amended to provide that a person will not be extradited to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. Other provisions in the Bill deal with privileges and immunities for certain bodies which are established under the convention, the commencement of the Act, and expenses arising out of its administration.
The UN convention imposes a number of further obligations on State parties which do not require to be included in legislation. For example, Article 10 provides that states parties will ensure that education and information regarding the prohibition against torture are fully included in the training of police, medical personnel, public officials and others who may be involved in the custody or treatment of any person who is subjected to any form of arrest, detention or imprisonment. These are matters that can be dealt with administratively.
I will now deal with the sections of the Bill. Section 1 contains standard provisions providing for certain necessary definitions. Section 2 is the central provision. It defines the offence of torture and sets out those categories of persons who may be guilty of torture. Under subsection (1), a person who is a public official and carries out an act of torture on a person will be guilty of the offence of torture. This subsection further provides that it is immaterial what the nationality of the public official is or whether the act of torture was carried out within the State or elsewhere.
Section 2(2) provides that a person, other than a public official, who carries out an act of torture on a person at the instigation of, or with the consent or acquiescence of, a public official will also be guilty of the offence of torture. It is immaterial what the nationality of the person is, or whether the act of torture was carried out within the State or elsewhere. The practical effect of subsections (1) and (2) is that a public official, or person acting at the instigation of or with the consent or acquiescence of a public official, no matter what the nationality of either, who carries out an act of torture on another person, irrespective of where that act was carried out, will be guilty of torture under the Bill.
Under section 2(3), a person who commits the offence of torture will be liable on conviction on indictment to imprisonment for up to life. This will make the offence an arrestable one and will put torture on a par with other very serious offences. Section 2(4) defines the terms "public official" and "torture". It states that a public official includes a person acting in an official capacity.
The definition of torture, which follows closely that contained in the convention itself, contains a number of elements. First, it includes both acts and omissions by which severe pain and suffering are intentionally inflicted on a person. The pain and suffering may be either physical or mental. The definition further provides that the pain and suffering must be inflicted for one or more specific purposes: obtaining from the person, or a third party, information or a confession; punishing the person for an act which he or she, or a third party, has committed or is suspected of having committed; intimidating or coercing the person or a third party; or for any reason based on discrimination of any kind.
Torture does not include, however, any act arising solely from, inherent in, or incidental to lawful sanctions. It might be helpful to make the point that there might be varying views as to how precisely to define the offence of torture. However, primarily what is at issue here is to enable the State to ratify the UN convention and, in the circumstances, there are obvious advantages in adhering as closely as possible to the definition which the convention itself contains.
Section 3 creates a number of offences other than the actual carrying out of acts of torture, but which contribute in some way to the offence of torture or are designed to frustrate efforts to prosecute others for the offence. Thus, any person, irrespective of nationality, will be guilty of an offence if he or she does any of the following: aids, abets, counsels or procures, within the State or elsewhere, the commission of the offence of torture; attempts or conspires to commit the offence of torture; or tries to obstruct or prevent the arrest or prosecution of a person for the offence of torture.
As in section 2(3), a person who is found guilty of any of these offences will be liable to imprisonment for up to life. While I accept that it may be more usual in our laws to provide for lesser penalties for aiding and abetting, etc., the commission of an offence – rather than the actual carrying out of the offence itself – and given the particularly heinous nature of what can be at issue, I believe it is appropriate in this case to provide for the same maximum penalty.
Section 4(1) provides that proceedings for an offence under the Bill can be taken anywhere in the State and may be treated as if the offence had been committed in that place. The effect of this will be that persons charged with the offence of torture or a related offence, which has been committed either in the State or abroad, may be tried anywhere in the State. Under subsection (2) of this section, a prosecution for an offence under this Bill may only be taken by or with the consent of the Director of Public Prosecutions.
Section 4(3) is included to avoid multiple provisions in legislation relating to extraterritorial jurisdiction. Under section 38 of the Extradition Act, 1965, an offence committed abroad by an Irish citizen is, in certain circumstances, an offence under Irish law. The effect of subsection (3) is that where an Irish national is accused of the offence of torture committed abroad, any proceedings will be taken under the Bill and not under section 38 of the Extradition Act.
Section 5 provides for the amendment of sections 169 and 192 of the Defence Act, 1954. Section 169 of the Defence Act, as amended by the Criminal Justice Act, 1990, deals with the trial of certain non-military offences by court-martial. Section 169(3) provides that where a person charged under the section is convicted by court-martial of certain offences, for example, manslaughter, rape and genocide, that person will be punished accordingly. Section 5(a) amends section 169(3) by adding that where a person is convicted by court-martial of an offence under this Bill, the person will be liable to a penalty of up to life imprisonment, in the same way as a person is liable to that penalty if convicted in a non-military court.
Section 192 of the Defence Act deals with the jurisdiction of courts-martial. Section 192(2) provides that a limited court-martial will not have jurisdiction to try certain offences, for example, treason and murder, and subsection (3) provides that a court-martial shall not have jurisdiction to try any person subject to military law for certain offences, for example, treason, murder, manslaughter, rape and genocide, unless the offence was committed while the person was on active service. Under section 5(b), the offences created by the Bill will also be excluded from the jurisdiction of courts-martial in similar circumstances.
Section 6 involves a number of amendments to the Extradition Act, 1965. These arise on account of the requirement in Article 3(1) of the convention that no state shall expel, return or extradite a person to another state where there are substantial grounds for believing that that person would be in danger of being subjected to torture. Accordingly, section 6 will add a further condition to the relevant sections of the 1965 Act to allow for refusal of a request for extradition where there are substantial grounds for believing that a person may be subjected to torture. Paragraph (a) will include a definition of torture in section 3 of the 1965 Act which will have the same meaning as it has in the Bill.
Section 11(2) of the 1965 Act includes provision that a person shall not be extradited if there are substantial grounds for believing that, if extradited, his position may be prejudiced on account of his race, religion, nationality or political opinion. Section 6(b) of the Bill will insert an additional subsection (2A) the effect of which will be that a person shall not be extradited if there are substantial grounds for believing that the person may be subjected to torture.
Section 33(3) of the 1965 Act provides that the Minister shall not make an order that a person is to be surrendered if he is of the opinion that it would involve transit through any territory where there is reason to believe that his life or his freedom may be threatened by reason of his race, religion, nationality or political opinion. Under section 6(c) of the Bill this will be amended to state that the Minister may also refuse to make an order if there is reason to believe that the person may be subjected to torture.
Section 44(2) of the 1965 Act, as amended by section 8 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, includes provision that a warrant issued in a place to which Part Ill of that Act applies shall not be endorsed for execution in the State if there are substantial grounds for believing that the person's position would be prejudiced on account of his race, religion, nationality or political opinion. This is amended by section 6(d) to include the belief that the person may be subjected to torture.
Section 50(2)(bb) of the 1965 Act, inserted by section 9 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, includes provision that a person arrested under Part III of the Act shall be released if there are substantial grounds for believing that that person's position would be prejudiced on account of race, religion, nationality or political opinion. This paragraph is amended, by section 6 (e), to include the belief that the person may be subjected to torture as a further ground for release.
Section 7 amends the Criminal Procedure Act, 1967, in two respects. Section 7(a) inserts reference to offences created by the Bill into section 13 (1) of the 1967 Act, the effect of which is that the District Court will not have jurisdiction either to deal summarily with offences created by the Bill or to send the accused forward for sentence in relation to those offences. At present section 13(2) excludes this jurisdiction in the case of offences such as treason, murder or genocide, to which will now be added the torture offences created by this Bill.
Section 29 of the Criminal Procedure Act, 1967 deals with bail in the case of treason, murder, genocide and certain other offences. It provides that bail may only be granted by the High Court in those cases. Section 7(b) inserts a new paragraph into section 29(1) of the 1967 Act to add the new offence of torture to those offences listed. As a result, bail may only be granted by the High Court in the case of a person charged with an offence under the Bill.
Section 8 amends the First Schedule to the Extradition (Amendment) Act, 1994, to include the offences created by the Bill. The effect of this will be that these offences will not be considered to be political offences and that extradition cannot be denied, therefore, on that ground.
Article 17 of the UN convention establishes a committee against torture to carry out the function of ensuring that states abide by their obligations under the convention. Article 21 permits the establishment of anad hoc conciliation commission in appropriate cases. Article 23 states that members of the committee and of the ad hoc conciliation commission shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and lmmunities of the United Nations, which is incorporated in the Diplomatic Relations and lmmunities Act, 1967.
Section 9 makes provision for the committee against torture, and anyad hoc conciliation commission established by the committee, to be accorded the appropriate privileges and immunities as are necessary for them to exercise their functions independently.
Section 10 is a standard provision, which provides that any expenses incurred by any Minister of the Government in the administration of the Act will, to the extent sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas. The Bill may give rise to additional costs, for example, the costs incurred in prosecuting persons accused of offences under the Bill. In addition, the convention imposes obligations on states which have ratified it regarding expenses of the committee established under Article 17 as well as expenses incurred in connection with meetings of states and the committee. However, there are no grounds for believing at present that any substantial expenditure will arise.
Section 11 is a standard provision setting out the short title of the Bill and providing for the commencement of the Act.
In concluding my remarks, I want to say that this Bill honours an important international obligation and, furthermore, it is a positive indication of the repugnance we feel at unspeakable acts committed most frequently by tyrannical regimes which are sadly still all too prevalent in the world today. I believe it is also a demonstration of our willingness to do all we can to ensure that the perpetrators of those heinous crimes are brought to justice.
As recently as last December, we celebrated the 50th anniversary of the adoption of the Universal Declaration of Human Rights. I am pleased that, because of the priority which I accorded the measure, it proved possible to publish the Bill prior to that anniversary.
As Senators will be aware, this Bill is being debated first in the Seanad. Given the excellent and well deserved reputation of this House for raising and advancing human rights issues, I look forward to a constructive and informed debate. As always, I will follow the debate with great care and interest and will take full account of all contributions. I thank Senators for their co-operation in this regard.