Will the Leader tell us if there is any time limit on this?
Extradition (European Union Conventions) Bill, 2001: Second Stage.
There will be ten minutes for spokespersons and seven minutes for all other Senators, and Senators may share time.
Is there a time limit on this debate? Is it due to conclude at any given time?
I am very pleased to be back in this House again, this time to propose important legislation, the Extradition (European Union Conventions) Bill, 2001. It might be of use to Senators if I were to give some background to the proposals in the Bill. The purpose of the Bill is to enable the State to ratify two European Union conventions on extradition, the 1995 convention on simplified extradition procedures between member states of the European Union and the 1996 convention on extradition between member states of the European Union. The Bill before the House will enable Ireland to ratify these conventions and it is our intention to do so at an early date after the Bill is enacted. The Bill also proposes some substantive and procedural changes to our general extradition law.
It is universally recognised among civilised states that offenders should not be permitted to escape justice by fleeing from the state where they have committed offences to another jurisdiction. The extraordinary improvements in communications and transport have facilitated greater cross-frontier movement generally. However, the downside of this ease of travel is that it facilitates the movement of offenders who often cross not one but several borders to escape justice. Accordingly, the provision of efficient and effective extradition arrangements is now more necessary than ever.
The Bill before the House will facilitate more effective co-operation in combating crime and it forms part of a package of measures to ensure a coherent and effective international response to the threat of terrorism in the aftermath of the appalling attacks on the United States on 11 September. It will expedite the bringing to justice of suspected criminals who seek to avoid prosecution by leaving the jurisdiction where the crime has been committed. There have been a number of initiatives at European Union level to combat the threat of terrorism and the Justice and Home Affairs Council of 20 September 2001 urged member states to take all the necessary steps to bring the two conventions on extradition into force by 1 January 2002.
In addition, that JHA Council and the European Council on the following day approved the commencement of negotiations among member states on a framework decision for a European arrest warrant and intensive negotiations have been taking place on this proposal for the past two and a half months. Indeed, there is a motion before the Seanad today concerning the European arrest warrant. Consequently, there is no need for me to deal with the impact of that in this speech except to say that when it is adopted and the necessary legislative measures are put in place in the member states – the proposed timescale is 1 January 2004 – it will replace both the 1995 and 1996 conventions to which we are giving effect today.
In the context of the threat posed by terrorism to the lives of people, the economic and social stability of countries and even the rule of law and democracy itself, the proposals in the Bill to simplify extradition arrangements between member states of the European Union are apposite. The realities of the modern world make it imperative that we examine ways of improving co-operation in combating crime and to ensure that fugitives cannot escape justice by fleeing to another country.
Before turning to the actual provisions of the Bill, I will outline our existing extradition provisions. It is important to place extradition in its historical context. Our primary legislation is the Extradition Act, 1965, which provides for both the simplified arrangements Ireland operates with Britain and Northern Ireland, Part III, and our extradition arrangements with other countries, Part II. Part II is modelled on the multilateral Council of Europe Convention on Extradition which was opened for signature in 1957, to which Ireland is a party. It provides the basis for extradition between this country and most of the other Council of Europe member states. It also governs our extradition arrangements with certain other countries, such as the United States of America and Australia, with whom we have extradition agreements. In addition, Ireland is a party to a number of international conventions which provide special extradition arrangements in relation to specific offences, for example, in the aviation field.
The Extradition Act, 1965, has been amended on a number of occasions, twice in 1987 and once in 1994. The 1965 Act was the first occasion on which legislation dealing with extradition was passed by the Oireachtas. Prior to that the relevant extradition provisions were provided for in pre-1922 statutes, mainly the Extradition Act, 1870.
With regard to extradition and terrorism the European Convention on the Suppression of Terrorism was drawn up in the light of the prevalence of terrorist attacks and the practice of their perpetrators to flee the country in which they had carried out the attack. The underlying principle of the terrorism convention was that perpetrators of acts of terrorism should not be immune from extradition by pleading that the act they had committed was a political offence. In domestic law the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, gave effect to the terrorism convention. It restricts the circumstances in which a person can avoid extradition on the grounds that the offence in question is a political offence or an offence connected with a political offence.
There was also a second Extradition Act in 1987 called the Extradition (Amendment) Act, 1987. It mainly dealt with issues relating to extradition to Great Britain or Northern Ireland. Finally, the Extradition (Amendment) Act, 1994, amended, clarified and extended the range of offences which could not be regarded as political for extradition purposes. Although our law has been updated several times, it is an area that needs re-examination again in the light of prevailing circumstances.
The Bill before the House today will build on the earlier extradition Acts and will considerably streamline and improve the efficiency of our law on extradition. By way of introduction to the Bill, I will briefly touch on the two conventions to which it will give effect.
The 1995 convention on simplified extradition procedures between the member states of the European Union provides for a simplified procedure where the person sought consents to his or her surrender, such consent to be given before the High Court which must be satisfied that the consent is given voluntarily and in full awareness of the consequences. Once consent is given and where the person claimed is a citizen of Ireland, the Minister for Justice, Equality and Law Reform agrees the person will be extradited.
A person who has consented to his or her surrender may also renounce his or her right to the specialty rule, the rule whereby a person extradited for one offence may not be tried for other offences committed before his or her extradition, such renunciation to be recorded before the High Court. The consent of the Minister for Justice, Equality and Law Reform is also required.
While the 1995 convention also provides that consent to surrender or renunciation of the rule of specialty may not be revoked, it allows parties to opt out of this requirement by making a declaration to that effect on ratification. It is proposed that Ireland will make a declaration allowing persons to revoke their consent or renunciation, as the case may be.
The 1996 convention relating to extradition between the member states of the European Union, as well as extending the range of extraditable offences, also provides for the further improvement and simplification of procedures in a number of respects. Extradition requests, documents and correspondence may be sent by facsimile transmission provided the facsimile machine is fitted with a cryptographic device to ensure authenticity and confidentiality. Changes are also proposed in relation to the authentication and certification of documents. The convention also requires all states to designate a central authority to be responsible for transmitting and receiving extradition requests and supporting documentation, and it is proposed that the Minister for Justice, Equality and Law Reform will be the central authority for Ireland.
The Bill also gives effect to a number of changes in our general extradition law. All extradition proceedings will in future be held in the High Court. Evidence may be given by a witness outside the State through a television link or by affidavit in any extradition proceedings. The Bill also deals with other miscellaneous matters such as foreign seals, the laying of orders before the Houses of the Oireachtas and their content.
Both conventions, to which the Bill will give effect, include a provision that their terms will not affect more favourable bilateral arrangements already in existence between any member states. This means that, as far as implementation of the conventions is involved, the backing of warrants procedure with the United Kingdom contained in Part III of the 1965 Act will not be affected. However, the Bill will bring about a number of changes in our extradition arrangements with the United Kingdom in addition to those changes to our general extradition law which I mentioned. For example, there is a new definition of "correspondence" to deal with difficulties that may arise because acts that constitute offences by the law of both states may be designated differently. It is being provided, in effect, that the offence in the State need not be in the same category or of the same description as the offence in the United Kingdom. Offences will correspond where the acts of the person sought would constitute an indictable offence if committed in Ireland or are punishable on summary conviction by at least six months' imprisonment. The United Kingdom has a provision in its 1994 Criminal Justice and Public Order Act making revenue offences extraditable in the context of the backing of warrants arrangements with this country and the Bill will do likewise. Revenue offences will also be extraditable between Ireland and other members states of the European Union by virtue of the 1996 convention.
It is also being provided in relation to the United Kingdom and other member states of the European Union that to constitute an extraditable offence it will be sufficient for an offence to be criminal in this State at the date of making of the extradition request. I will deal with this matter in more detail later.
I would like to outline in more detail for the benefit of the House the provisions of the Bill. The first substantive section is section 4 which provides that the Minister for Foreign Affairs may by order designate countries that have adopted the convention of 1995. The 1995 convention is a European Union convention and open only to EU member states.
Section 5 deals with provisional arrest. It amends section 27 of the 1965 Extradition Act and implements Article 4 of the 1995 convention. It sets out the information that must be provided to enable the simplified procedure to go ahead. This information has to be communicated also to the arrested person who must also be informed of his or her right to consent to surrender.
Section 6 relates to consent to surrender. It inserts a new section 29A into the 1965 Act. It provides that where a person in extradition proceedings is brought before the High Court under a provisional arrest warrant or a warrant of arrest, he or she may consent to being surrendered to the convention country concerned. The procedure is elaborated on in subsections (2) to (4) of the new section. Where the person claimed is a citizen of Ireland, the Minister has to consent; this is set out in subsection (2)(e) and (3)(f).
Subsection (5) of the new section provides that if a person who is provisionally arrested consents to his or her being surrendered, the Minister shall inform the convention country concerned not later than ten days after the person is arrested. This is also a requirement where the person does not consent to being surrendered.
Subsection (6) of the new section provides that a person who has consented to his or her surrender may subsequently, but before the making of a surrender order by the Minister, withdraw such consent. Section 6 also makes a technical amendment to section 14 of the 1965 Act to take account of the new consent provisions.
Section 7 concerns a person's option to waive his or her right to the rule of specialty, which provides that a person extradited for one offence may not be tried for other offences committed before his or her extradition unless certain conditions are complied with. This section amends section 20 of the 1965 Act and inserts a new section 20A. A person who has consented to his or her surrender may also consent to the Minister giving his consent to the waiving of specialty.
An amendment introduced on Report State in the Dáil inserted new subsections (2) and (3) to section 20A. As mentioned, the 1995 convention provides that a person who has consented to his or her surrender may also renounce his or her right to the specialty rule; the 1995 convention also provides that consent or renunciation may not be revoked. However, it allows parties to opt out of this requirement by making a declaration to that effect on ratification. It is proposed that Ireland will make such a declaration, and this amendment allows for renunciation of the waiver of the right to specialty. The amendment, therefore, addressed the question of a person's right to revoke his or her consent to waiving the rule of specialty.
I draw the attention of Senators to the fact that under Article 7 of the 1995 convention, to which this section gives effect, consent and renunciation of specialty must be given before the judicial authorities of the requested state. There is also a provision for a waiver of specialty in Article 10 of the 1996 convention in certain limited circumstances contemplated by Article 10, but in that case the waiver is to be given after his or her surrender before the judicial authority of the requesting state. I will deal with this in more detail when I come to discuss section 15.
Section 8 deals with consent to surrender and provides for the insertion of a new section 33A in the 1965 Act, which sets out the procedure where consent to surrender has been given; Articles 10 and 11 of the 1995 convention deal with surrender. The date of consent will be the date on which the consent is made and recorded before the High Court. Subsection (1) of the new section 33A provides, in accordance with the convention, that the Minister shall notify the requesting country of that decision within 20 days of its making while subsection (2) provides that the Minister shall make an order for the surrender of the person sought not later than 20 days after the giving of notification. Subsection (4) of the new section provides for the person to be released if he or she has not been surrendered to the requesting state within the specified period. However, subsection (3) allows a derogation from this period if surrender within the specified period has been prevented by circumstances beyond the control of the Minister.
Part 3 of the Bill, that is, sections 9 to 19, gives effect to the 1996 convention relating to extradition between members states of the European Union. I described the purpose of the 1996 convention.
Section 9 inserted a new subsection (1B) into section 3 of the 1965 Act and defined "Convention country" for the purposes of amendments being made to that Act by Part 3 of the Bill. Subsection (1C), also being inserted into section 3 of the 1965 Act, provides for a central authority. The explanatory report to the 1996 convention dealing with the designation of a central authority by each member state states that "the central authority will be a focal point for transmission and reception of extradition requests and necessary supporting documents."
Section 10 provides that the Minister for Foreign Affairs may by order designate countries that have adopted the convention of 1996. The 1996 convention is a European Union convention and open only to EU member states.
Section 11 amends section 10 of the 1965 Act and gives effect under a new section 10(1A) to the reduction in the threshold for extradition as between contracting states provided for in Article 2(1) of the 1996 convention. This provides that offences will be extraditable if they are punishable by six months' imprisonment in the requested member states and 12 months in the requesting member state. The current general threshold, as provided for in section 10(1) of the 1965 Act and Article 2 of the 1957 European Convention on Extradition, is 12 months in both states. Where extradition is sought in respect of a person who has been convicted and sentenced for such an offence, he or she must have been sentenced to at least four months' imprisonment. It is also being provided in a new subsection (2A) that where extradition is granted for an offence that complies with the minimum sentence requirements, that is, 12 months and six months in the requesting and requested states, respectively, extradition may also be granted for certain other offences, that is, minor offences, that fail to comply with this requirement.
An amendment introduced to this section and to section 26 in the context of our extradition arrangements with the United Kingdom on Committee State in the Dáil provides that it will be sufficient for an offence to be criminal here at the date of making of the extradition request and in the requesting state at both the date of commission and request to constitute an extraditable offence, that is, to change from the current position where an offence to be extraditable in Ireland must have been an offence under our law and the law of the requesting state at the time it was committed and at the time of the request. However, if any part of the act constituting the extradition request was committed in this state, then it has to be an offence under the law of this State on the day on which it was committed.
As mentioned, under our current law the position seems to be that to be extraditable the offence must have been a crime under Irish law at the time of its commission. The matter is not of great moment for the generality of extradition offences since they normally deal with core offences such as murder and theft which have always been criminal in all civilised states. As a result it rarely, if ever, becomes an issue in extradition proceedings. However, it could be an issue in regard to new offences that are created, particularly offences such as torture or other crimes against humanity in respect of which states are obliged under UN and other conventions to provide extra territorial jurisdiction for their domestic courts. Other examples would be crimes involving child pornography or abuse of children or trafficking in women which could expect to be condemned in all civilised countries. This provision will ensure that no one can escape simply because both states had not criminalised the offence in question at the time of its commission. This will assist us in meeting our international obligations especially when what is in question are crimes against humanity and other crimes of a type universally condemned by all civilised states.
Section 12 concerns the political offence exemption. This section amends section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987. Article 5 of the 1996 convention requires that, as between contracting countries and for the purposes of the convention, no offence may be regarded as a political offence, but it allows member states to confine this requirement to the offences referred to in Articles 1 and 2 of the Suppression of Terrorism Convention. It is proposed that Ireland, on ratification, will make a declaration to this effect, setting out the offences under our law that may not be regarded as political, namely, the offences set out in section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, and in the Schedule to the Extradition (Amendment) Act, 1994.
The current position in our law with regard to the political offence exception is that since all EU states are parties to the Suppression of Terrorism Convention and orders applying Part II of the 1965 Act have been made in relation to all EU states, our Extradition (European Convention on the Suppression of Terrorism) Act, 1987, as amended by the Extradition (Amendment) Act, 1994, will apply to all EU states and there is, therefore, no need to include any "political offence" provision in the Bill in relation to those states. This section has been included to cater for the possibility that, post-enlargement, new EU member states may become parties to the Convention on Extradition between member states of the European Union who are not parties to the Convention on the Suppression of Terrorism.
Section 13 removes the current bar on extra dition for revenue offences. This section gives effect to Article 6 of the 1996 convention which makes revenue offences extraditable between EU states. The current section 13 of the Extradition Act, 1965, contains an absolute bar on extradition for revenue offences. The amendments being made to that Act by this provision will also enable simple amendments to be made to existing bilateral extradition agreements, for example, those with the USA and Australia, to provide for extradition for revenue offences, if that is desired. It will also be possible to allow for extradition for revenue offences to be included in any future bilateral agreements that may be negotiated. I previously mentioned that the UK has a provision in its legislation, the Criminal Justice and Public Order Act, 1994, which allows for revenue offences to be extraditable in the context of the backing of warrants arrangements with this country. The amendments in subparagraph (c) of the section will do likewise in our law.
Section 14 deals with cases of pardon or amnesty. This section inserts a new section 18A in the Extradition Act, 1965. It provides that extradition shall not be granted where the person claimed has (i) been granted a pardon under Article 13.6 of the Constitution; or (ii) become immune by virtue of any amnesty or pardon in accordance with the law of the requesting country; or (iii) by virtue of any Act of the Oireachtas, become immune from prosecution or punishment for the act for which extradition is sought. The explanatory report to the 1996 convention dealing with this matter states, inter alia: “This Article (Article 9) provides that an amnesty declared in the requested member state, in which that State had competence to prosecute the offence under its own criminal law, will constitute a mandatory reason for not granting extradition.”
I already referred to the fact that section 15 modifies certain aspects of the rule of specialty for the purposes of the 1996 convention. Members will recall from what I said earlier that the 1995 convention and section 7 of the Bill dealt with the renunciation of specialty where a person sought consent to surrender. Section 15 amends section 20 of the principal Act and provides that a person extradited for one offence may be tried or prosecuted for other offences committed before his or her extradition if the offences do not give rise to imprisonment, or where imprisonment is involved, if the person has expressly waived the benefit of specialty, such waiver to be made before the competent judicial authorities of the requesting state and to be shown to have been made voluntarily and in full awareness of the consequences.
As I indicated, extradition to a convention country for an extraditable offence of a person claimed can also extend to offences which are not punishable by deprivation of liberty, or offences where upon conviction the person might be liable to a term of imprisonment and another penalty that does not involve imprisonment, and the High Court is satisfied that the other penalty only, and not the term of imprisonment, will be imposed should he or she be convicted. The provision also comprehends offences involving measures not involving the deprivation of liberty, including a financial penalty or a measure in lieu thereof, even if failure or refusal to submit to any measure or comply with any such penalty may involve restriction of his or her personal liberty. On the other hand, in the case of an offence where imprisonment is involved, the person may only be proceeded against if he or she has expressly waived the benefit of specialty after his or her surrender and before the competent judicial authority of the requesting state and, in the case of an Irish citizen, the Minister also consents. Article 7(2) of the convention provides that a member state may declare that it will authorise extradition of its nationals only under certain specified conditions. Ireland's declaration in this respect will provide on ratification of the convention for the need for such consent.
Section 16 of the Bill addresses the application of rule of specialty in the State that is the reverse of what I have just discussed in the context of section 15. This section amends section 39 of the Extradition Act, 1965, which deals with the application of the rule of specialty in the case of persons extradited to Ireland and contains analogous provisions to the previous section. Article 10 of the 1996 convention provides that the consent of the requested state is not necessary in relation to those proceedings unless that state makes a similar declaration to Ireland in relation to its own citizens. Again, a person has to expressly waive the benefit of specialty, such waiver to be made before a judge of the High Court, who has to be satisfied that the person consented voluntarily and in full awareness of the consequences.
Section 17 covers authentication of documents. Article 15 of the 1996 convention, which deals with authentication, is aimed at simplifying the formal requirements in relation to documentation for extradition. The general principle established is that any document or copy thereof transmitted for the purposes of extradition between convention countries shall be exempted from authentication or any other formality. A new subsection (2) is being inserted into section 25 of the principal Act and provides that for the purposes of an extradition request from a convention county, a document shall be deemed to be an authenticated copy if it has been certified as a true copy by the judicial authority that issued the original or by an officer of the central authority duly authorised to do so.
Section 17(b) of the Bill substitutes a new section for section 37 of the principal Act to simplify the requirements to be met for extradition documents from non-convention countries – subsection (1) – and from convention countries – subsections (2) and (3) – to be received in evidence without further proof. In respect of non-convention countries, the document will be required to be signed by a judge, magistrate or officer of the requesting country and to be certi fied by being sealed with the seal of a Minister of State, Ministry, etc. The range of official seals which may be used for this purpose is being extended to facilitate the operation of the section. In respect of convention countries, it will be sufficient for a copy of a conviction and sentence order or of a warrant to be certified either by the judicial authority that issued the original or by the central authority. Other extradition documents from a convention country purporting to be copies will be received in evidence without further proof.
Section 18 of the Bill allows for the facsimile transmission of documents. This section inserts a new section 23A in the 1965 Act and is intended to give effect to Article 13(3), (4) and (5) of the 1996 Convention. The central authority provided for in section 9 is given the authority to receive extradition requests and documents from convention countries by fax. In order to guarantee the authenticity of extradition documents, the central authority of the requesting member state shall state in its request that it certifies that the documents transmitted in support of that request correspond to the originals. Use will be made of cryptographic devices to ensure confidentiality and authenticity. Where the central authority in the State is for some reason not satisfied that the documents correspond with the originals, it may require the central authority of the requesting country to provide the original document or a true copy thereof.
Section 19 deals with the transit of persons sought through Ireland. The section amends section 40 of the Principal Act and is intended to give effect to Article 16 of the 1996 convention, which deals with the transit of a surrendered person through Ireland from one contracting party to another. Any requests for transit by a convention country must contain the information specified in the new section 40(1)(A), that is, information regarding the person's identity where there exists an arrest warrant in respect of the person being transited; the nature and description of the offence for which he or she is sought; a description of the circumstances in which the offence was committed, the date and place of its commission; and other relevant information. A new subsection (2)(A) is inserted into section 40 to deal with the unscheduled landing of an aircraft in the State which has on board a person who is being conveyed to a convention country upon his or her surrender to that country pursuant to extradition proceedings.
I turn to Part IV, sections 20 to 26, which provides for a number of substantive and procedural changes to our general extradition law. Section 20 provides for all extradition proceedings to be moved to the High Court. This is a change from the current law where the initial application for the extradition of persons from the State is made to the District Court. In 1994 such applications were centralised in the Dublin Metropolitan District Court. However, since nearly all extradition cases end up in the High Court in any event it is considered that the consolidation of all extradition proceedings in the High Court would provide for a more efficient and expeditious hearing of such cases. Since 1994 all bail applications in extradition cases must be taken in the High Court. The Presidents of the High Court and the District Court have been consulted and there has been no objection to the proposal.
An amendment introduced on Committee Stage in the Dáil provides in section 20(3) for transitional arrangements. It provides that amendments effected by section 20(1) shall not operate to affect extradition proceedings brought before the commencement of this section. In particular, the District Court shall, in relation to any such proceedings, have the same jurisdiction that it had immediately before commencement. A further amendment to this section, which was introduced on Report Stage, provides for a right of appeal on a point of law from the High Court to the Supreme Court. This provision, together with the possibility of habeas corpus proceedings, provides the necessary safeguards for a person subject to extradition proceedings.
Section 21 seeks to address a serious difficulty with the operation of section 4 of the Extradition Act, 1965. This arises in connection with multilateral agreements which contain extradition provisions. It is a difficulty that was not foreseen when the current provision was inserted in 1987. It is proposed in section 21 to return to the pre-1987 position. The issue has two aspects, the first of which relates to our own accession to the international agreements. The second and more difficult issue arises as other states accede to agreements and, thereby, impose obligations on Ireland vis-à-vis those new parties to the agreement. When Ireland ratifies a multilateral convention which contains obligations relating to extradition, it must ensure that it can comply with these obligations before the convention enters into force for Ireland. Under multilateral conventions, the period between ratification and bringing the extradition provisions into effect tends to be quite short, typically 30 days.
Under section 4 of the 1965 Extradition Act, as amended by the 1987 Extradition (European Convention on the Suppression of Terrorism) Act, in order to allow for extradition between Ireland and another state which is party to the agreement, it is necessary for an extradition order to be approved by both Houses of the Oireachtas. This must be done after the State becomes a party to the agreement but before the agreement enters into force for Ireland. This can generally be managed through the normal scheduling of parliamentary business.
Subsequent orders, necessary to take into account the State's obligations to other states as they become party to the agreement after its entry into force for this State, must be made between the date that such a state becomes party to the agreement and the date that the agreement enters into force for it. The timeframe within which we have to pass motions and the number of motions is dictated by the accession of new parties to agreements. That timeframe is therefore outside our control but the consequences of not meeting deadlines would put Ireland in a very unsatisfactory position of not being able to meet its obligations under such international agreements, of which there is an increasing number. Section 21 is designed to meet this difficulty.
I would also like to draw attention to the fact that the Oireachtas will already have been given an opportunity to examine and consider the agreements in question when the legislation giving effect to them in Ireland was or is being enacted. The making of the extradition orders is a necessary additional but consequential piece of business that the State must undertake.
Section 22 provides for the giving of evidence by affidavit. It inserts a new section 7B into the 1965 Act and provides that evidence as to any matter to which proceedings under that Act relate may be given by affidavit, or by a statement in writing that purports to have been sworn by the deponent in a place other than the State and in the presence of a person duly authorised to attest to the swearing of such a statement by the deponent. The High Court may, if it considers that the interests of justice so require, direct that oral evidence be given of the matters described in the affidavit or statement.
Section 23 amends section 8 of the 1965 Act by inserting a new subsection (1A) and substituting new subsections (3), 3(A) and 3(B) for the present subsection (3). It also makes a technical amendment to subsection (8). The purpose of the changes is to deal with difficulties that have arisen in practice from the present wording of section 8. For example, the existing section has been interpreted as requiring that every order made must embody the terms of the extradition agreement. Thus, as is most often the case, if the purpose of the order is merely to apply Part II to a new state on the accession of that state to, say, the 1957 European Extradition Convention, the text of the convention is set out in the order, despite the fact that the text will be available in the previous order which will be referred to in the new order and cited together with it.
The amendments to the section propose that when an extradition agreement is made with another state or states the text of the agreement will be included but that when Part II is applied to a new state on the accession of that state to an existing agreement, the text of the agreement will not be included in the order. However, the order will recite or embody the terms of any reservation or declaration entered to that agreement by the country to which the order applies. When an amendment to an existing agreement is made the order need only contain the text of the amendment.
The current section 8(8) of the Principal Act requires the publication in Iris Oifigiúil of the text of the orders made. The proposed new section 8(8) will merely require notice to be given in Iris Oifigiúil that the order has been made. It is useful to emphasise that, overall, these changes will mean a more streamlined and efficient procedure than has existed heretofore.
Section 24 provides that evidence may be given through television link by a person outside the State. It amends section 29 of the Criminal Evidence Act, 1992, to provide for the possibility of a person, other than the person whose extradition is being sought, being able to give evidence from abroad in extradition cases via Iive television link. Leave of the court will be required.
Section 25 deals with the issue of foreign seals. Section 21(3)(a) of the Principal Act is substituted by a new provision to take account of the fact that some countries do not have ministerial seals and seal documents under the seal of a ministry or Department. It is now being provided that a seal of the relevant Minister, ministry or Department is sufficient. This amendment also requires a consequential amendment to be made to section 39(2) of the 1965 Act and this is provided for in paragraph (b) of the section.
Section 26 deals with any difficulty that may arise with "correspondence of offences" in Part III cases, that is the backing of warrants arrangements with the UK. The new definition of correspondence will mean that while the offence in the State may not be in the same category or of the same description as the offence in the UK, it will still be extraditable provided the act constituting the offence would, if done in the State, constitute an offence which is punishable on indictment or punishable on summary conviction by imprisonment for a maximum term of not less than six months.
I have already dealt with the amendment to section 26 which was introduced on Committee Stage in the Dáil to provide that it will be sufficient for an offence to be a crime in the requesting state, that is, the UK at both the date of commission and request and criminal here at the date of making of the extradition request to constitute an extraditable offence.
An amendment was also introduced on Committee Stage in the Dáil to insert a new section 27 into the Bill. The new section amends section 3 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, to add four 1949 Geneva conventions to the list in section 3(a) of that Act so that the war-related crimes contemplated by those conventions could not be regarded as political offences. This is being done, following consultation with the Attorney General's office, to ensure that the political offence exemption will not arise in cases involving these conventions. These conventions have been given effect in Ireland by the Geneva Conventions Act, 1962. However, the 1962 Act does not make specific provision about reliance on the political offence exemption nor for extradition and this amendment is being made to remove any doubt about the possibility of the political offence exemption being relied upon in Ireland in the case of offences under these conventions.
I think all Senators will agree that we should consider ways to update and improve extradition arrangements as we develop and reinforce co-operation in the judicial area between member states of the European Union. This Bill will, I believe, prove to be an effective and modern legal instrument which will assist in bringing to justice suspected criminals who leave the jurisdiction where the crime has been committed. Essentially it will provide for a more streamlined extradition procedure between member states.
Those are the provisions of the Bill. While it is a relatively short Bill, it is detailed and complex legislation and, as I mentioned previously, it contains a range of measures which will strengthen and considerably improve existing legislation in this area. It will also meet our international obligations. It is clear that the taking of all measures to combat terrorism is an objective to which all parties in this House are committed and I believe that this Bill represents a valuable additional strand in the array of measures that are available to counteract this threat. Again I emphasise that the Government will be introducing a number of measures over the coming months which will further strengthen anti-terrorism legislation. I look forward to hearing the views of Senators on the Bill and on that note, I commend the Bill to the House.
Ten minutes is inadequate, given the nature and range of the Bill and that it has taken the Minister three quarters of an hour to present his case on this important legislation.
I did not order the business of the House.
I am aware of that. We voted against it and we had good reason for doing so.
In general I welcome this legislation which is somewhat overdue. In effect, it is a Bill proposing to legislate for two conventions, the 1995 European Union convention on extradition and the 1996 convention on extradition between member states of the European Union. I welcome the general principle of the Bill.
The Minister at the outset stated that it is his intention to have it enacted at an early date. I hope that in his response he will be in a position to give us some indication of how soon he intends to enact it because it is important that it be enacted sooner rather than later.
It is a bit disingenuous of the Minister to come before the House and again refer to the tragic events of 11 September in the United States as a reason for bringing forward this legislation. This is something which should be going ahead regardless of anything happening in any other jurisdiction. This is something to which we signed up many years ago and for which we have agreed to legislate. Therefore there is an onus on us to pro ceed to legislation, which is what we are doing now.
I am pleased that it involves bringing in all the member states of the European Union. It is important that it includes all member states and indeed other countries with whom we have made extradition procedural arrangements such as Australia and the United States.
A number of improvements on existing law are proposed in this Bill and I welcome them. It is apt and appropriate that certain aspects, particularly those regarding revenue offences, are being dealt with here in a procedural fashion and also that people cannot use the defence they had in the past that it was a political offence to prevent their extradition. That latter point is very important.
I hope the Minister will elaborate in more detail on the section which deals with where a person consents to his or her surrender. I want him to put on record in greater detail the whole consent procedure and the details on when a person would renounce the right to the specialty rule. It is important that the full detail of those matters are put on record. While no member state should be used as a haven to harbour criminals from another State, equally it is important that the civil rights of the individual are fully and properly protected. I would appreciate a deeper and fuller elaboration from the Minister on this aspect of the Bill when he addresses it further.
I welcome the extension of the range of extraditable offences, particularly, as I have already stated, those regarding revenue offences. I also welcome the simplification procedure. The fact that all cases will be held in the High Court is clear and I welcome the fact that television links or affidavits can be introduced in the proceedings.
It is extremely important that the fact that offences in the UK may be somewhat different in the way they are presented will no longer be an excuse for them not to apply and those changes must be welcomed. We have, needless to say, close communication with the UK. Because of the constant movement of people and close communication, some little technical detail should not prohibit getting down to the main business.
Given that we are changing over to the euro at the beginning of 2002, it is appropriate that the revenue offence be brought in. That is why I asked the Minister to initiate the legislation immediately and put it into full effect. There would be good reason for using it.
I welcome the fact that new offences will be introduced for extradition, particularly for the offences that include torture and crimes against humanity and indeed trafficking in people, particularly women and children, in pornography or anything of that nature. The extension to those areas must we welcomed by this House. It is not before time that we are legislating for such offences.
In the context of the sad affair in Wexford at the weekend, I wonder what procedures can be adopted to bring the people who perpetrated those crimes against humanity to justice. What is the position in that regard? Whether the perpetrators of the crime were from a member state of the European Union or from a country outside the European Union but were resident or harboured in the European Union, what does the Minister propose to do in that regard? It was suggested in some reports that they may be criminals from Russia who manoeuvre this type of situation. What is the procedure between the European Union member states on addressing this issue? It is extremely important that that matter be addressed.
I have referred to the revenue offences. I welcome the fact that section 13 of the Bill lifts the absolute bar on extradition for revenue offences and I want to see that put into effect immediately.
The Minister should comment on section 14 about pardon or amnesty. It provides that extradition shall not be granted where a person has been granted a pardon under Article 13.6 of the Constitution which states that the right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction is vested in the President, but such power or commutation or remission, may, except in capital cases, also be conferred by law on other authorities.
I would like the Minister to elaborate in greater detail on that particular aspect of the Bill as I do not understand the specifics of what is involved. How often has this article of the Constitution been used? Is it necessary to include it in the Bill? Perhaps the Minister envisages that the President will be busy dishing out pardons, meaning that certain people will be exempt from extradition.
Given modern communications technology, it is important that this Bill improves the means of dealing with documentation and brings it into the 21st century. Also, the necessary protections relating to documentation appear to be provided for in the Bill. It is commendable that the High Court will deal with this issue as everyone will know where to go and how to proceed.
In general, the Bill is welcome. The aspects addressing the trade in humans must be treated seriously. It has been reported in recent years that many women from other member states are brought into Dublin for prostitution purposes. Does the Minister or his Department have any specific details about this? Will action be taken against the people who arrange this trade? There is an increase in vicious and vile crimes against women and children and it is important that this Bill helps bring the perpetrators to justice.
I hope the Bill will not be another one to collect dust on the shelves but will be effective in creating a better quality of life for many people and in protecting member states from despicable criminals who have roamed with impunity because of problems with extradition.
I welcome the Minister to the House and this Bill which we debate against the backdrop of some of the most horrendous terrorist attacks in history. However, the Bill concerns more than those attacks and I commend the Minister for acting so swiftly on the 20 September request of the Justice and Home Affairs Council urging EU member states to take all urgent steps to implement the two conventions on extradition by 1 January 2002, which this Bill will do.
Extradition is an emotive subject in Ireland with many high profile cases and legal wrangles ongoing between the Republic, Britain and other countries. One famous case which concerned Deputy McDaid, the Minister for Tourism, Sport and Recreation, was not mentioned tonight. As we have matured as a nation and as the European Union has matured, we can have a rational debate. We can bring the various forces and arms of the State to bear against terrorists of all types.
I welcome the provisions relating to extradition for revenue offences. In recent years, some of the most appalling attacks on our society were carried out by drug barons and those who import heroin and other hard drugs, which has caused mayhem throughout society. In the 1980s, areas of Dublin were devastated by the importation of heroin and today cocaine is taking its place. Yet, in some member states of what we regard as the civilised European Union drug barons openly flaunt their wealth and live the high life despite everyone knowing the source of their money. Due to cumbersome legislation and the absence of an extradition framework, they go about their business unhindered in most parts of the EU.
Many of them left this jurisdiction because of the success of the Criminal Assets Bureau, CAB. For this Bill and the CAB to be truly effective, it must be possible to pursue these people and request their extradition from their havens when a prosecution is pending over the revenue aspect of their illicit businesses. This is one of the Bill's most important aspects. I endorse the provisions of section 13 which will be used as the main vehicle to address one of the biggest threats to society and to young people in particular.
The advent of the peace process and the shifting of hearts and minds within the various traditions on the island mean that extradition is no longer as emotive as it was in the past. I recall High Court cases in which, due to technical hitches or a document failing to be authenticated or presented at the right place, we made heroes out of people who were only terrorists. I hope the Bill addresses this and that we will have a smooth transfer of persons between the EU member states. We do not want cases tied up in court for years. A simple provision, such as that in section 18, can help prevent this by addressing the changes required with the advent of modern technology.
The Bill inserts a new section, section 23A into the Principal Act and gives effect to Articles Nos. 13.3 to 13.5, inclusive, of the 1996 convention. The central authority is given the authority to receive extradition requests and documents by fax. In order to guarantee authenticity, the central authority of the requesting member state shall state in its request that it certifies that the documents transmitted correspond to the originals. This is a simple and straightforward step to address technological changes and attempts to avoid the legal challenges which have been a feature of extradition proceedings between Britain and Ireland. The Bill is technical, as is the explanatory memorandum, but its thrust and what we are trying to achieve is positive.
Some issues arise regarding new member states. When will the conventions come into force in these states? Will it be prior to or on accession or will there be a transition period? This must be addressed as it could allow the people we are tracking down to move to new member states where they would have a reprieve of a year or two before the conventions are ratified there.
The mindset of the civilised world has changed in regard to terrorism. As a country which has suffered terrorist atrocities, we can understand how Americans felt on 11 September. However, it is important that we move forward on a number of fronts. Civilised countries now realise that all forms of terrorism must be rooted out. The attitude of some countries which were apologetic about terrorism in the past has changed.
I congratulate the Minister on introducing this legislation and hope it achieves its objectives. Given the positive developments in Northern Ireland, the resources which were used to counteract terrorism can now be used to deal effectively with the new problem that affects society, drug dealers and those who import hard drugs such as heroin.
I am sure the Minister will receive full co-operation from the legal systems in EU member states in terms of practical policing measures. This is an important issue. It is fine for us to talk about extradition and the ratification of the various EU conventions on extradition, but there will be problems if there is a lack of co-operation from EU police forces when it comes to tracking down and sharing information. This legislation is required because of issues such as the events of 11 September and the drug problems we face. I agree with the Minister's comments that, overall, these changes will mean a more streamlined and efficient procedure.
Reference was also made during the debate to the case in Wexford at the weekend when people lost their lives in tragic circumstances. It is very heartening to know that somebody is being charged tonight in Belgium. I welcome the Bill and I commend it to the House.
The Minister for Tourism, Sport and Recreation, Deputy McDaid, will be delighted that we did not forget him here tonight and that we remember his travails. The history of extradition legislation in this House goes back to 1987. I recall that, before the election in 1987, the Fianna Fáil party took a strong position in opposition to extradition. I also recall the first vote in the House when I reminded the now Fianna Fáil Whip that his mother would be less than pleased with him for voting for extradition. That was in 1987, but it does not feel like 14 years ago. On that occasion I voted against the legislation, as the Government Whip will recall, because I said it should involve a prima facie case.
I have to concede that, since that time, amendments to the legislation have made it much stronger and much more dependable. Every one of the amendments made in that time has been welcomed. I particularly welcomed the redefinition and development of the term "political". Clear definitions, descriptions and decisions have been made with regard to our relations with the UK, to crimes committed there and to extradition requests from there. The Irish Government should be complimented for its work over the last two or three months in rejecting the right-wing fascistic demands of some European countries about the European arrest warrant. The Attorney General and the Government have handled that issue very responsibly. It underlines the need for us to be particularly careful about legislation. We must ensure that legislation is in compliance with the Constitution and our views on natural justice.
Revenue offences can now be included as extraditable offences. I listened recently to the head of the corresponding group to our Criminal Assets Bureau in the UK. As the Minister is aware, they do not have a criminal assets bureau in the UK but they aspire to having one. The Criminal Assets Bureau legislation is a model that is now being copied in many different European jurisdictions. Listening to people who are trying to deal with major criminals in different European countries, the common view among all police forces and those trying to convict offenders is that it is better to have them free without their money than in jail with their money. The possibility of convicting people on revenue offences will do more to clean up Europe than many other aspects of the Bill.
I draw the attention of the House to the unacceptable over-reaction of the United States in some of its recent legislation. The USA Patriotic Act is the best or worst example, depending on one's point of view. That country prides itself on its civil liberties and natural justice, but it holds hundreds of people without trial. It is utterly unacceptable. In many cases people who were completely cleared of involvement in terrorism by the courts were found guilty of minor visa or immigration offences. This is unacceptable.
I am greatly concerned by one aspect of the Bill. I question the constitutionality of section 26. I welcome without hesitation the reference to the inclusion of new technology and the arrangements regarding teleconferencing and evidence by television. I also welcome section 18 in relation to the facsimile transmission of documents. I ask the Minister to explain why he stopped at facsimile given that there is now cryptographic mailing and attachments? When President Clinton visited Ireland a few years ago, he and the Taoiseach, Deputy Bertie Ahern, went to Gateway and signed off on a new system of signature and encryption which ensures that documents can be sent electronically and not just by fax. The proposal is unnecessarily restrictive – it should also include e-mailing. In 1987 it was impossible to find a fax machine in this House. Only last year I had an argument with the staff of the Houses of the Oireachtas when I refused to allow them to include my fax number in the directory because the fax is now well out of date. However, I have never encountered any movement on these issues when I raise them with the Department of Justice, Equality and Law Reform.
There is a question about the constitutionality of section 26. It mentions the correspondence of offences in the context of offences committed in this jurisdiction. Previously, an alleged offence had to be an offence in this State and in the requesting state on the date it was committed. That condition was very clear. I do not argue with the reasons for it, but we are moving to a situation where a person can be extradited on the basis of an offence which is obviously an offence in the requesting state but which is an offence in Ireland only on the date of the receipt of the request. It may not have been an offence in Ireland on the date of the offence. I do not believe that gels with the Constitution. Article 15.5 of the Constitution declares that: "The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission." We are effectively deciding that for the purposes of a corresponding offence, which is an alleged breach of the law, it is all right for it to be an offence on the date of the request from the requesting state. There is a major gap here – somebody could be extradited from this State for something which was not an offence in this State on the date of its alleged commission. I ask the Minister to explain this point.
It is not that I disagree with the spirit of this, but I do not want us to bring something forward which could be found to be unconstitutional. In my reading of it, it clearly seems to be unconstitutional. Section 26 (2) states: "For the purposes of this Part an offence under the law of a place to which this Part applies corresponds to an offence under the law of the State where the act constituting the offence under the law of that place would, if done in the State, constitute an offence under the law of the State."
In each case the State in question is this one. It is stating it is an offence in the State. It is not an offence in this State, unless it was an offence under the legislation on the date it was committed. Therefore, the subsection is declaring something to be an offence while the next subsection declares it to be an offence if it was an offence on the date of the request, but not on the date it was allegedly committed. This is a significant issue. I agree with the spirit of what the Minister is trying to achieve to which I have no objection. I do not want to create loopholes, but this may be an escape route and somebody may be caught out.
I compliment the Minister on dealing with the thorny question of where the same acts have different names in different countries. Where the Bill deals with an act or offence, it does so quite well. That is superb and nobody can argue with it. However, in section 26(2) we are proposing something that will be in breach of Article 15.5 because we are declaring an act to be an infringement of the law which was not so at the date of its commission. That is very clear in both Irish and English. I look forward to the Minister's response. Apart from this I commend the Bill.
I welcome the Minister and I am very glad he feels comfortable because we sometimes make him rather uncomfortable in this House. He should feel free to continue his conversation with the Front Bench of Fianna Fáil. It will distract me as little as it distracted Senator O'Toole. He may even have a yawn. I feel like doing so myself. We have been here all day and it is pretty boring.
I ask the Senator to speak to the Bill.
I know the Acting Chairman is not at all partisan. We will all have a good time and be happy and friends given that it is coming up to Christmas. In general terms I welcome this tidying up which is all part of a growing sense of our European associations. I agree with Senator O'Toole on two matters in particular. It is very important for us to pursue criminals in the revenue area through the CAB, etc. The Senator may have found a flaw or conundrum in the Bill, which I am sure the Minister's advisers will consider to see if it is necessary to make some kind of emendation.
In the development of recent Irish history it is interesting to notice the way in which the Bill is being introduced. How things have changed. I remember when "extradition" was a dirty word. It was on a par with "eviction" and "informer". I remember people outside Leinster House getting quite an amount of support against any form of extradition. I remember when the Establishment here, both political and legal, was resistant to extradition and put up every obstacle possible, particularly when it came to extradition to the United Kingdom, one of the principal reasons being this fig leaf of political motivation. I am glad we are reducing this notion. If a person murders, maims or injures others, I do not care what is the motivation. It is murder, torture, violation of people's human and civil rights and their dignity as people. The sooner we get rid of this nonsense of political motivation, especially in the European jurisdiction, the better. I welcome this new attitude.
On the other hand, I am a little worried about being uncritically free with extradition. When we discuss the Bill in detail on the next Stage, perhaps we will be able to take a look at this. I share Senator O'Toole's concern about the United States, particularly in the light of remarks being made. I am not anti-American, but I am critical of certain aspects, particularly the cavalier attitude both they and the British have taken recently to civil rights.
A senior Cabinet Minister recently dismissed concerns about human rights as pettifogging. I am prepared to continue in this way when the question of human rights is involved because there is alacrity in the way in which so many Administrations have rushed to make use of what happened on 11 September in order to introduce draconian measures. In the United States there are now military tribunals, which are closed and violate all notions of natural law. They carry the death penalty and clearly restrict disastrously the rights of accused persons. Will we extradite in these circumstances to an Administration which permits this abuse of the decencies of the law?
Let us look closer to home, at France. Before we send people off let us examine what the possible effect may be. Let us look at what has been coming up in the newspapers in recent years among our wonderful European allies like the French. Having lied about it for years senior generals are now admitting that they routinely tortured and murdered people in Algeria. Let us make pretty sure this aspect has been cleaned out of French public life. I am in a position to state that it certainly was not within the past ten years. I worked quite closely with a Belgian Baptist pastor, Dr. Joseph Dousay, who was murdered by the French secret police. In the circumstances one ought to ask some questions and show a little reserve.
I am balancing matters. On the one hand, I am in favour of rooting out real criminals and against the use of the fig leaf of an excuse of political motivation for dastardly acts. On the other, even the accused ought to have their human rights protected. We must be very careful about those countries to which we export our citizens for trial.
I, too, welcome the Minister to the House. It is late in the day to be discussing extradition. No doubt this is the first of his package of proposals in dealing with terrorism. They arise from the European conventions of 1995 and 1996. Although the Minister has not stated it categorically, clearly the reason they are being brought before us now has much to do with the events of 11 September. He has not given us any reason five and six years after the conventions were passed they are now being brought before us for ratification and promulgation in our legislation.
On extradition, we have gone a long way down the road in recent years. The political offence is no longer as central, in legislative or legal terms, as it was in the past. In relation to ordinary crime, nobody could object to pursuing criminals across Europe and beyond. There should be reciprocal efforts made by all jurisdictions to try to catch those who have committed crimes in one country or another. That is very welcome.
The legislation setting up the Criminal Assets Bureau seems to have been successful. We have driven people who have committed serious crimes, such as the importation and distribution of illegal substances which have caused innumerable fatalities, out of the country. It is important they are pursued and extradited for crimes committed. We are introducing simplified procedures, which are welcome.
The proposal to fax documents from one jurisdiction to another in a confidential way is welcome. It should also be possible to use the Internet and e-mail documentation. It is as easy to sign for a document and to establish confidentiality that way as it is with a facsimile. We should look at the best of modern technology. Perhaps an amendment to that effect would be received favourably.
I also welcome the provision of television links for witnesses for offences which might have taken place in another country. If someone goes on holidays, they might be reluctant to return to give evidence in a case where an offence had been committed. A television link would improve the situation.
As regards civil liberties, the pursuit of terrorism has sparked the introduction of the legislation at this time. I did not expect to be discussing such legislation five or six years after it was introduced as a convention. We must be careful about civil liberties. We must be careful that we do not over-react and decide to introduce legislation which we might rue in the future. We do not want to respond too hastily to a tragic event by introducing legislation without proper analysis and examination. The two motions on terrorism and arrest warrants which we will discuss later must be examined carefully. We do not want to pass them with a nod.
Perhaps the Minister will clarify what is proposed in section 26, to which Senator O'Toole referred. The Minister said that offences will correspond where the acts of the person sought would constitute an indictable offence if committed in Ireland or are punishable on summary conviction by at least six months imprisonment. We are discussing legislation which will make the termination of a pregnancy an offence which carries a penalty of 12 years on conviction. However, it is not an offence in the neighbouring jurisdiction.
The Minister said that it is also being provided in relation to the United Kingdom and other member states of the European Union that to constitute an extraditable offence it will be sufficient for an offence to be criminal in the State at the date of making the extradition request. How does that tally with what we are doing? We will have an offence with a penalty in excess of six months, which is the penalty prescribed in the legislation. It will be a substantial offence in this country which will warrant the extradition of the person concerned. We know that thousands of women go to Britain for medical procedures which result in the termination of unborn life, yet it is not an offence there. Perhaps the Minister will tell us how the two pieces of legislation will tally. That conundrum must be addressed.
Commitments were made many years ago, as far back as the Barra Ó Briain committee in 1979, about the video recording of all interrogations. What progress has been made in terms of the protection of the civil rights of those in Garda custody? If we want to introduce modern technology for the transmission of evidence, surely we should use the same technology for the interrogation of suspects.
I want to ask the Minister a couple of questions. One does not wish to politicise issues, particularly in light of what happened in New York on 11 September, but one must remember that not all members of the European Union have the standards of personal liberty which we take for granted. There are countries where people are detained for considerable lengths of time under circumstances with which we would not be happy. Irish judges, for example, would not tolerate what is happening in Greece to the airplane spotters, which will now be resolved. It could not happen here. Our Judiciary and Supreme Court would not allow people to be detained in custody for the length of time people are being detained. I want to be assured that something will be built into the legislation which ensures that people will be dealt with expeditiously and that they will not be extradited to another country and left waiting in custody for months or years. I read the Minister's script, but I do not know if we have a guarantee on that issue.
The second issue is that which Senator Costello raised. What do we do with Irish people who commit offences abroad which are regarded as offences in Ireland? We allow them to do things outside the State, while knowing that what they are doing is illegal in the State. It is extraordinary to allow people to do things abroad which we regard as so serious that we insert into our Constitution a prohibition on them. We say we will not stop them from going abroad. Does that mean we accept that what they do abroad is not an offence? We will not stop them from doing it, but are they committing an offence by doing it abroad and, if so and if they stay abroad, can we require the neighbouring jurisdiction to return them?
It is ironic that a Fianna Fáil Minister is introducing extradition legislation. I always remember the heady days of the 1980s when Fianna Fáil was utterly opposed to extradition. It then went into Government and discovered it had to support it. I sat here virtually on my own as an Independent Senator and opposed an extradition Bill, which was passed. A Fianna Fáil Senator asked me afterwards for a copy of my script because he had to go to a meeting about extradition at the weekend and he thought it would be a great speech to give. I hope that what we are getting now is the authentic Fianna Fáil and not something to fulfil a necessary condition.
I thank the Members who contributed to what has turned out to be a very good debate. I was heartened by the support for the innovative features of the Bill. The debate was lively, interesting and thought provoking, but that was only to be expected. Extradition is one of those subjects on which many have strong views. Senator Norris referred to the fact that I was having a conversation for a time during Senator O'Toole's contribution. I was in fact commenting on the quality of the Senator's speech to Senator Fitzgerald. The fact that I did not make any comment to Senator Fitzgerald during Senator Norris's contribution should not be read as meaning I did not consider his contribution to possess quality also.
Recent atrocities highlight the importance of governments presenting a co-ordinated response to terrorism and international crime, a point on which all Senators will agree with me. We must redouble our efforts to ensure that our approach to countering the terrorism problem leaves nothing to be desired. The Government is committed to that and is working on several other legislative proposals to give effect to the relevant conventions to combat international crime and terrorism. These proposals will be before the Oireachtas shortly. Of particular significance in this regard is the plan of action approved by the European Council on 21 September last to counter terrorism. The plan calls on member states to amend all existing international conventions in the fight against terrorism. A similar call was contained in the UN Security Council resolution of 28 September, which called on states to sign and ratify the UN Convention on the Suppression of the Financing of Terrorism. We recently signed that convention and the Government intends to give effect to it and other UN conventions relevant to the fight against terrorism, not yet ratified, as part of our response to the events of 11 September.
There are other legislative proposals in the pipeline which are intended to enable Ireland to become a party to the UN conventions on the suppression of terrorist bombings, the taking of hostages and the prevention and punishment of attacks on internationally protected persons. Work is under way in my Department to frame proposals necessary to give effect to those conventions and steps are being taken to accede to the Convention on the Marking of Plastic Explosives for the Purpose of Detection, accession to which does not require legislative changes.
I have no doubt that everyone in this House fully supports the taking of all appropriate measures in the fight against terrorism in respect of which we must prioritise facilitating more effective co-operation in combating crime and bringing to justice suspected criminals. The recent appalling events in the United States of America were defining moments for all of us. Those tragic events highlighted the need for greater national and international effort in the fight against terrorism and to this end we must ensure that the judicial systems of all states, especially member states of the EU, work in harmony to present a co-ordinated response. Senators are aware of the proposals relating to the European arrest warrant, regarding which a motion will be moved in this House later this evening. Proposals for an arrest warrant give us a further opportunity to consider the current surrender and extradition arrangements that exist between member states. Since a motion on the European arrest warrant is being moved later I will confine myself to some brief remarks on the effect of the proposals as legislative instruments.
Notice taken that 12 Members were not present; House counted and 12 Members being present,
I have no doubt that every Member of this House fully supports the taking of all appropriate measures in the fight against terrorism. To achieve this we must give top priority—
There is not a quorum sitting.
There is a quorum. Please behave yourself.
What do you mean by that?
I am in the Chair, not you. Do not be disruptive.
I want to see the Independent Senators in their seats.
I have no doubt that every Member fully supports the taking of all appropriate measures in the fight against terrorism. To achieve this we must give priority to facilitating more effective co-operation in combating crime and bringing to justice suspected criminals. The recent appalling events in the United States of America were defining moments for all of us. Those tragic events highlighted the need for greater national and international effort in the fight against terrorism and to this end we must ensure that the judicial systems of all states, especially member states of the EU, work in harmony to present a co-ordinated response. Senators are aware of the proposals relating to the European arrest warrant and I have stated that I will confine myself to some brief remarks about it.
The proposals for a European arrest warrant are contained in a draft framework decision. Framework decisions are a new type of instrument provided for in the Amsterdam Treaty's provisions on police and judicial co-operation in criminal matters. Their objective is the approximation of the laws and regulations of the member states with regard to specific areas. They are binding upon member states in terms of the result to be achieved by them, but it is for each member state to decide upon the level of implementation. In this respect they resemble directives under the first pillar. The purpose of the framework decision proposed is to replace existing extradition procedures within member states of the EU with a simplified procedure based on the European arrest warrant. That will, in effect, replace inter-state extradition with an inter-court procedure. The proposals are comprehensive and will replace existing multilateral procedures between member states of the Union. The establishment of surrender of wanted persons based on warrants issued by judicial authorities is entirely reasonable. We are already familiar with extradition proceedings based on a backing-of-warrants system through our extradition arrangements with the UK.
I noted in my earlier remarks that the 1965 Act has been the basis of all extradition law. It was based on the Council of Europe's 1957 convention on extradition. The Act has served us well for 36 years. Nevertheless, we cannot stand still and must respond to the new circumstances. The 1995 and 1996 EU extradition conventions represent another step in ensuring more efficient extradition procedures between member states. All member states have committed themselves to ratifying these conventions by the end of this year and the Bill will enable Ireland to fulfil its obligations in this regard.
There is general support for legislative proposals that help to ensure there are no safe havens for criminals, especially those who seek to avoid—
There should be silence while the Minister is speaking.
The Order of Business is being arranged.
—prosecution by leaving the jurisdiction where the crime has been committed. This measure will help to achieve this aim.
Senator O'Toole commented on the European arrest warrant and welcomed the new changes relating to revenue offences. He referred to section 26 which relates to correspondence of offences and said he was concerned about its constitutionality. The section provides that it is sufficient that the offence in question be an offence in this country on the date of request, and that much was cleared by the Attorney General. The normal rule against retrospection does not apply to extradition. Extradition is not a criminal offence but a criminal procedure. A Pinochet type situation is envisaged.
It is hoped to enact the legislation before Christmas to ratify the convention in January 2002. This commitment was given last September. The conventions come into effect 90 days after their ratification. The new member states accept the 1995 and 1996 conventions on accession.
Several states are involved in the Wexford case. Co-operation between member states has been excellent and offences probably arise in several of them. They will be addressed under the European arrest warrant. The offence of illegal trafficking is included on the positive list of the European arrest warrant. The legislation does not extend current laws and pardons and ensures that, where a pardon was granted, the person is not to be prosecuted for that offence in another country.
Senators have noted the Bill extends the definition of extraditable offences to include revenue offences. It is framed on the basis that it covers taxes, duties, customs and exchange controls. The existing extradition procedures and arrangements will, when the Bill is enacted, apply to any revenue offence which comes within the meaning of extraditable offence or corresponding offence in the same way that these procedures and arrangements apply to other offences.
Until now there was a general prohibition on extradition for revenue offences. However, the 1965 Act allowed for extradition in certain cases. It was felt it would be contrary to public policy to exclude the possibility of extradition for that limited range of offences. Accordingly, extradition was permitted for offences involving the use or threat of force, for example, maiming of customs officers, perjury, the forging of a document issued under statutory authority, for example, a birth certificate, or an offence committed by a Revenue office, for example, bribery, embezzlement of public funds etc. The 1965 Act did not contain a reference to customs. It is now included and will enable extradition to take place for offences involving the importation of prohibited or restricted articles which are not subject to duty.
Section 3(a) of the 1994 Extradition (Amendment) Act made a further exception from the general prohibition on extradition for revenue offences. It excluded offences within the scope of article 3 of the 1988 drugs convention. Thus an offence within the scope of article 3, that is, illegal production of narcotic drugs, possession for the purpose of supply and so on of the United Nations convention against illicit traffic in narcotic drugs and psychotropic substances done at Vienna on 20 December 1988 became an extraditable offence. The effect of the 1994 amendment was that the extradition of a person in connection with a drug offence covered by article 3 of the drugs convention could not be refused on the grounds that the offence in question was a revenue offence. This will continue to be the case.
The political offence exemption has been substantially reduced over the years to the extent that it now covers only a very small number of cases such as treason and espionage. In Irish law, the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, and the Extradition (Amendment) Act, 1994, have limited the exemption by excluding a large range of offences, including murder, explosives and firearms offences. The 1996 EU convention which the Bill will allow us to ratify repeats all the limitations in the Convention on the Suppression of Terrorism which were already enacted in the 1987 Act. In other words, the Bill makes no change to existing law relating to political offences.
On simplified procedures and renunciation of speciality, the existing position is that almost all EU member states have some form of simplified procedures for extradition where the person sought consents. To date that is not the case with the possible exception of our backing of warrants system with the United Kingdom.
On a point of order—
The Minister, without interruption.
When someone calls a quorum—
The Senator should resume his seat. The Minister, without interruption.
When a quorum is called—
Resume your seat, Senator Lanigan.
The person who called the quorum left the House.
The Minister, without interruption, please.
I also understand that the original proposal was that a person who consented to simplified procedures would also automatically renounce the rule of speciality. On practical and policy grounds, it would seem desirable that the issues be kept separate as a person may wish to consent to return but not to renounce speciality, and the convention in the Bill so provides. While the previous position was that renouncing speciality was a state prerogative for the purposes of the 1995 convention, we see no objection to allowing individuals renounce speciality, subject to the safeguards of the Bill.
Under Article 14 of the 1957 European convention, the state can give consent to the prosecution by the requesting state of an offence other than the offence for which the person was extradited, provided it is an extraditable offence. In the context of simplified procedures in the 1995 convention, renunciation of speciality before surrender is general and not linked to individual offences. Under the 1996 convention, a person may, after a surrender, renounce speciality for offences other than an offence to which the request was related. It may be in the interest of the person to have, for example, minor offences dealt with while he is in jail. He will be fully advised of his rights before he makes his decision and consent must be given in open court.
With regard to Senator Ryan's points, not all European Union states have our level of liberties. With regard to investigative detention, extradition will not be allowed for this purpose. The arrest warrant also gives guarantees of this. This was a point I raised during the course of the discussion on the European arrest warrant in Brussels. It is true that, in certain European Union jurisdictions, there is provision for investigative detention whereby a person can be held during the course of an investigation of an offence. I sought to have this clarified and eventually succeeded in obtaining a declaration by Ireland to the effect that no individual would be extradited from this country for investigative detention and that an individual could only be extradited for the purpose of trial or detention to serve a term of imprisonment.
I do not know how Fianna Fáil's position on extradition in the 1980s relates to the European conventions.
Just for the record.
For the record, Fianna Fáil's position on extradition in the 1980s did not relate to the prohibition of extradition but to concerns about people receiving a fair trial having been extradited.
That is not the way it was.
Senator Ryan was not a Member at the time.
The Minister, without interruption.
At the request of Fianna Fáil Members of the Oireachtas, certain safeguards were inserted in the extradition legislation at the time to provide that the Attorney General would have to be satisfied that the individual being extradited had a case to answer and there was provision for the Minister for Justice of the day, which exists to this day, to intervene in a given extradition case and refuse extradition. I have seen files such as this on a number of occasions and, while I have not had occasion to intervene, the power still exists for the Minister to do so. These related to safeguards relating to extradition and did not relate to preventing people who should face criminal charges from being extradited.
Senator Costello welcomed the restrictions on political offences and I am inclined to go along with him. The use of technology and new methods will be developed. With regard to civil liberties, the fact that there is a positive and negative list on the European arrest warrant means the test of dual criminality, while abolished in respect of those offences on the positive list, will still apply in reality because I cannot envisage any offences, or at least very few, which carry a term of three years imprisonment or more and which are an offence in another European Union state but do not constitute an offence here.
I think I dealt with the worry about correspondence with regard to section 26 in the context of dual criminality. The act must be an offence in both states – here on the date of the request and in the other state at the time of commission and request. For example, as abortion is not a crime in the United Kingdom, extradition would not arise.
Senator Norris welcomed the Bill, but he wondered about its political motivation. I dealt with that matter in my reply to Senator Ryan. Senator Cregan generally welcomed the legislation and was extremely constructive as was Senator Taylor-Quinn.
I thank the Minister.
When is it proposed to take Committee Stage?
That is outrageous.
Absolutely no way.
Is that agreed?
It is not agreed.
We will be sitting here until God knows when because the Leader wants to do all sorts of things that we could have spent weeks doing. The whole thing is absolutely outrageous.
Bohan, Eddie.Bonner, Enda.Callanan, Peter.Cassidy, Donie.Chambers, Frank.Cox, Margaret.
Cregan, JohnFarrell, Willie.Finneran, Michael.Fitzgerald, Tom.Fitzpatrick, Dermot.Gibbons, Jim.
Glennon, Jim.Glynn, Camillus.Kett, Tony.Kiely, Daniel.Kiely, Rory.Lanigan, Mick.Leonard, Ann.
Lydon, Don.Moylan, Pat.O'Brien, Francis.O'Donovan, Denis.O'Toole, Joe.Ó Fearghail, Seán.Ormonde, Ann.Walsh, Jim.
Caffrey, Ernie.Costello, Joe.Cregan, Denis (Dino).Henry, Mary.
Jackman, Mary.Keogh, Helen.Norris, David.Ryan, Brendan.Taylor-Quinn, Madeleine.
- An Bille um an gCúigiú Leasú is Fiche ar an mBunreacht (Beatha Dhaonna le linn Toirchis a Chosaint), 2001: Céim an Choiste (Atógáil). Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Committee Stage (Resumed).
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- European Arrest Warrant: Motion.