Like other speakers, I am against crime in most of its manifestations. I accept international boundaries are used by organised crime and that with the globalisation of crime, it is inevitable there will be globalisation to match it on the part of police authorities. I understand this and the difficulties imposed by international criminal organisations confronting isolated national jurisdictions. In principle, I completely accept a degree of internationalisation. I do, however, have some hesitations about aspects of the Bill which I will share with Senator Maurice Hayes, who rightly said there should be an independent person involved.
The Minister of State referred to the establishment of a police school, which I welcome, although I do so with certain qualifications or additions. A number of years ago I accepted an invitation to be a gadfly at an international police gathering in Dublin Castle. I did not concentrate on all the wonderful things the police did, rather I concentrated on areas of concern in terms of the way in which policing impacted on the local population and its behaviour. I was able to cite instances of sexual harassment, not only of women but also of men, and the brutalisation of suspects on a racial basis in France and other jurisdictions. Not alone did the police organisations not co-operate, they also actively supported members known to be engaged in criminal acts against innocent members of the public.
I would like the Minister of State to make representations to the appropriate quarters that such a police school, if established, should deal not only with the mechanics of policing and the transmission of information but also with the interface with the public, recognition of human rights and an indication that a severe view will be taken of the violation of citizen's rights while in police custody.
I would like to see the adoption of decent standards by police forces across the globe. By and large, we have such standards in this country or, at least, on this part of the island. However, I share the concern which, I assume, has been expressed by other Members. Although I welcome co-operation with the Police Service of Northern Ireland, the kind of recent revelations about the apparent co-operation between police authorities and criminal elements of a politically subversive nature – including connivance in the murder of innocent citizens – are a matter of grave concern.
This Bill was has been advanced on foot of the growing feeling that the western world, in particular, is confronting a problem of terrorism. This stems from the early entry into force in the EU of the provisions of the mutual legal assistance convention relating to joint investigations teams. I presume it is from this convention that much of this material derives.
The mutual legal assistance convention was agreed in June 2000 after five years of negotiations and its entry into force requires ratification by 15 national parliaments. At yet, no parliament has formally ratified it but the procedure is being pushed ahead. On 16 November last, the permanent representatives of the four member states behind the proposal declared that the framework decision should correspond to that of the original article 13 of the MLA convention which would remove any limitation on the scope of the offences. That is a concern on my part. In light of his detailed knowledge of the workings of the Bill, will the Minister of State indicate if there is a limitation on the scope of the offences contained in the Bill? The phrase used in the MLA convention is "criminal offences that require difficult and demanding investigations having links with other member states". However, during the discussion on the drafting of this prior document – the mutual legal assistance convention – there was much confusion about its scope. The United Kingdom Home Office, in response to this kind of concern, clearly stated that the convention could, as described in the words of the 1959 convention, cover "any crime however minor". I am not sure if this is the situation in the Bill or if there is a limitation on the scope of offences. Whereas I agree with the Minister of State in terms of the kind of crime to which he referred in the early part of his contribution, I would be concerned if these relatively minor areas could be trawled, perhaps for the purpose of political harassment of figures in other member states.
I received a letter this week from someone who lives not too far from the Minister of State's constituency. I have no knowledge of the author, but he seems to be an intelligent person. He alleges that the Garda are placing gay people under surveillance in his area – it is a rural, not an urban, area – for unspecified reasons and that they appear to be collecting information. He is concerned that such information would be permanently placed on the computer network. If this is happening and if it was to occur on a Europe-wide basis, then there is some cause for concern.
Members of joint investigation teams working in a member state other than their own will be regarded as seconded to that force by their national authorities. They can be entrusted to undertake certain investigative measures such as being present at interrogations, etc. Any intelligence seconded agents lawfully come across during the course of investigation in a foreign jurisdiction may be used for any purpose whatsoever, with the consent of the authorities of the member state in which it originated. However, going along with that and referring back to what I said earlier, there seems to be no explicit provision for this to be covered by international data protection law. Will the information gathered by these joint investigation teams be covered by both domestic and international data protection law? It may be that it is and that I have not noticed it, or will it simply be by virtue of the superior enactment of this law that all our legislation will be covered?
There seems to be a provision under the MLA convention not just for European police forces but also – this is specifically mentioned in the discussions, although it is not in the Bill – for similar arrangements and co-operation with the police forces of the United States of America. I am concerned about this because we have seen the way America behaved with regard to international law during the recent Iraq war. We know, for example, that the US is violating the Geneva Convention in its treatment of the prisoners at Guantanamo. The US is probably exporting certain of these prisoners to third countries where they can be properly tortured. We must be careful about the police forces with which we involve ourselves. I referred to the British in Northern Ireland and the French and I now mention my concern about the police forces of the United States of America.
I wish to end by quoting from a statement made by a commentator, Tom Bunyan, on this matter. He says:
It is one thing to allow these provisions on joint teams to come into effect to investigate terrorist offences. It is quite another to introduce it without any limitation on the scope of offences. One has to wonder how seriously the EU is taking its national parliaments and whether the EU intends to bring any other of the convention provisions into force early, using this simplified procedure.
While I welcome the war against crime, I believe it is appropriate that we raise specific concerns about the possible infringement of the rights of individual citizens in this country. We look to the Minister of State to provide answers to these questions. He may be well able to provide them and I accept that my interpretation of particular matters may be wrong. Alternatively, we may seek to place safeguards in the Bill.
Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea): I thank all Senators for their learned and instructive contributions. A number of points were raised and I will try to deal with them as best I can.
Senator Terry made the point that there were little or no changes in the criminal law in this Bill. The intention of the Bill is not to change criminal law. There is a raft of legislation before both Houses which has the intention of changing, updating and modernising the criminal law. The purpose of this legislation is to provide, as Senator Tuffy said, a legal framework for the establishment of joint investigation teams. It is true that there is co-operation between police forces of different states at present. However, what is lacking is a statutory basis and a legal framework. It is believed that it will operate more efficiently if a legal framework is put in place and if the parameters are set out in law. Senator Tuffy correctly pointed out that this is part of our legal obligations. Ireland, like other member states, is legally obliged to introduce this legislation.
The question of the 2,000 extra recruits to the Garda was raised. I emphasise again that the commitment in the programme for Government is to provide 2,000 extra gardaí over the lifetime of the Government. The Government has another four years to run. A caveat was also put in place that this would be done if resources permit and let us hope that this proves to be the case.
The point was also made that the Bill may put pressure on Garda resources. Crime has to be investigated. Crime which occurs in this country and which has an international dimension, must be investigated in the same way as that which occurs exclusively within our borders. This is simply a mechanism to facilitate such investigations and, I hope, bring them to successful conclusions.
I can see situations where money will actually be saved as a result of what is being put in place in the Bill. If some of those involved in this kind of crime, mainly in this country, originated from another country and had connections in other countries and if we had a mechanism whereby we could bring in the police forces of other countries to assist the Garda, investigations could be speedier and more efficient.
There are a number of innovative provisions in the Bill. For example, seconded members, that is, those coming from in outside, can make requests for information, or request their own national authorities to do something, without having to go through the bureaucratic procedure under the mutual co-operation provisions of the 1994 Act.
Senator Maurice Hayes said a situation of major importance might arise where a number of police or customs officials were tied up for a considerable period and that as a consequence provision should be made in the Bill for a separate sub-head. That is a sensible suggestion which will be considered.
Senator Terry asked about the cost of joint investigation teams. It is not possible at this point to give an estimate of the cost of establishment of such a team or involvement in it. The cost will vary depending on issues such as the nature, size and length of investigations into offences, conduct or suspected conduct. This question will be addressed by the member states involved in the agreement setting up the joint investigation team. However, everyone will agree that the benefits to be gained from the establishment of such teams and the fight against terrorism, in particular, will largely outweigh any cost involved.
Senators Terry and Maurice Hayes raised the issue of a dichotomy, as to the reason the Garda Commissioner was the competent authority in one situation and the Minister for Justice, Equality and Law Reform in the other. Where member states specify their judicial authorities rather than chiefs of police as the competent authorities for the purposes of the legislation giving effect to the framework decision, those states will not send or accept requests from the Garda Commissioner. That is the difficulty. It is for this reason that the Minister for Justice, Equality and Law Reform has also been designated as a competent authority for the purposes of the Bill. Other states may designate judicial authorities in accordance with their legislative or constitutional arrangements. If so, they will not deal with the Garda Commissioner, and someone else will have to be appointed as the relevant competent authority, namely, the Minister.
In reply to Senator Terry's question about the deadline, 1 January, the framework decision on joint investigation teams is a relatively recent one, approved on 13 June 2002. Since its publication, work has been ongoing in my Department with a view to preparation of legislation to enable this country to make a decision as quickly as possible. However, as can be seen from the text of the Bill, the establishment of joint investigation teams within member states is not a straightforward matter. Despite the fact that it is already happening in practice, trying to provide for it in law and set parameters is not straightforward. As the framework decision is silent in this regard, many of the practical and procedural matters must inevitably be dealt with in legislation. Extensive consultation was required with the Attorney General, the Garda Síochána and the Revenue authorities, as well as with other Departments and Offices which could be involved in the establishment of joint investigation teams in order to determine the framework which would allow such teams to be established and operate most efficiently. Given the heavy workload in the law reform division of my Department and the office of the parliamentary counsel of the Office of the Attorney General, and the busy Dáil and Seanad schedules since June 2002, it has not been possible to bring the legislation before this House any earlier. I apologise for this.
Senator Terry made the point that some of section 3 was difficult to read. I accept this but if one looks at the range of issues which need to be covered before a decision to establish a joint investigation team is finally taken, the section does not lend itself to easy drafting.
Senator Terry also inquired how the revised structure would result in improved policing. One benefit, as I said, will be increased speed and efficiency, as is clear in section 7 in the reference to seconded personnel being able to request their own states to do things which need to be done quickly, or get information from their states at short notice. We have specifically excluded seconded members who have been involved in particular investigations. They will be present only as backup, to provide assistance and information. The same will apply to other experts attached to joint investigation teams such as forensic experts or accountants, or even those seconded from other European institutions such as Europol or Eurojust.
Senator Jim Walsh outlined some of the issues arising from perceived wrongdoing by states or state agencies. He will be aware that there is a police inspectorate Bill currently before the Oireachtas which will beef up the complaints system. We will be establishing an ombudsman to replace the Garda Síochána Complaints Board which everyone now accepts is not operating very effectively. This will be a much more robust operation, and we expect the legislation to be brought before this House shortly.
I welcome Senator Jim Walsh's comments and agree with his views. The legislation should assist us in a very significant way in a co-ordinated fight against drugs in an international context, as well as trafficking in people, another crime with a large international dimension and unfortunately a growing crime with which we must deal urgently.
Senator Henry referred to the drugs problem. There is an EU drugs action plan being prepared. It is not appropriate for me to go into detail at this stage but suffice it to say we are party to it and will do our best to advance it as quickly as possible.
In reply to Senator Henry's point on the investigation of child abduction cases and Senator Norris's query about restrictions on the type of offences that can be dealt with, my Department has considered these matters and the view is that the scope of the Bill should not be restricted in any way. Sensible decisions will have to be taken as to whether a joint investigation team should be set up. A decision to set up such a team, involving police forces, customs services and revenue commissioners from different countries, cannot be taken lightly and will not be taken for petty offences. However, international crime is not limited in its scope, neither should the Bill.
It is not possible to predict at the outset of an investigation, particularly one with an international dimension, exactly what offence or range of offences may have been committed. It would be wrong, therefore, to provide legislation which would preclude participation in a joint investigation team because part of the offence lay outside the scope of our legislation, or to terminate the operation of a joint investigation team for a similar reason. It is for this reason that the legislation goes beyond the minimum requirements set in the framework decision – Senator Norris is correct in that minimum requirements have been set – and permits the investigation of any offence or conduct where there is a cross-border dimension.
Senator Tuffy raised the issue of whether misdemeanours would be dealt with. Section 12 makes provision for criminal liability in respect of offences committed by or against seconded members who are members of a foreign police force while operating in the State as part of a joint investigation team. The officials concerned will be dealt with in the same way as national team members. They will be considered to be members of the Garda Síochána for the purposes of criminal liability. Civil claims are dealt with specifically and clearly in section 13.
Senator Tuffy also inquired about compensation arrangements. Members of the Garda Síochána will fall to be compensated under the Garda Síochána compensation Acts. Members of other police forces will be compensated under whatever arrangements are in place in their own countries.
Senator Henry asked how certain prosecutorial matters would be dealt with. I have dealt with this.
Senator Maurice Hayes raised the question of where prosecution would take place. It will take place in the country which takes the initiative in establishing the joint investigation team. We envisage that that will be the country mainly affected by the crime. If there is evidence of offences having been committed in other countries, what will happen in practice is that the seconded members from the countries concerned will be prepared to attend court to give evidence of these offences to reinforce the prosecution's case.
Senator Maurice Hayes and one or two other Senators raised the issue of standards, an issue of which we are very much aware. The disciplinary group on organised crime has agreed a standard agreement for joint investigations which will be used in every case when joint investigation teams are being established. The issue of standards between member states participating in such teams will be addressed in that context.
Senator Norris raised the question of whether the data protection legislation would apply to information acquired in the course of a joint investigation. The answer is "Yes", it will apply.
I thank Senators for their valuable contributions which have certainly given us food for thought. One or two matters have been raised which I intend to discuss with the Minister. I look forward to coming back shortly to take Committee and Report Stages. We need to have this legislation passed and up and running as quickly as possible. I thank Senators for their co-operation in this regard.