Vol. 173 No. 8
I move amendment No. 2:
In page 5, subsection (1), line 16, after "Agreement" to insert "and where the vessel is registered".
I tabled this amendment in order to achieve added clarity and I would like to hear the comments of the Minister of State on it.
The issue raised in the context of Senator Terry's amendment was one of a number of options considered during the drafting of this legislation, in consultation with the parliamentary counsel. The convention state which is a party to the agreement annexed to the legislation will be deemed, in the context of the legislation, to be the flag state – that is, the state where the vessel is registered. It will, therefore, be the only state that can make a request to the Minister for the surrender of the person arrested, the vessel detained or anything seized from a vessel and retained.
It is clear from section 4 of the Council of Europe Agreement on Illicit Traffic by Sea, which implements Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, that the flag state is that in which the vessel is registered. I am advised by the Office of the Chief Parliamentary Counsel that the amendment tabled by Senator Terry is not required and would only serve to create confusion in the interpretation of the legislation. In other words, the wording used in the amendment is already comprehended in the relevant subsection. For that reason, I cannot accept the amendment.
Would it be possible to discuss amendments Nos. 3 and 4 together?
Is it agreed that amendments Nos. 3 and 4 be taken together? Agreed.
I move amendment No. 3:
In page 5, subsection (2), line 24, after "request" to insert "is to be communicated at least within two days of receiving notification from the Minister in accordance with section 7(3) and".
If the flag state is to receive preferential jurisdiction, should there not be a requirement that the convention or flag state be notified of a vessel arrested or a person on board a vessel arrested, in accordance with section 5? The master of the vessel is entitled to communicate to the convention state, as pursuant to section 4. How otherwise will a convention state be able to make a request for surrender of the person being arrested, the vessel being detained or anything seized from a vessel and retained in accordance with section 7 of the Bill, unless it has received notification from the Minister for Justice, Equality and Law Reform, and has dealt with said notification within two days of the arrest or seizure?
As I indicated earlier, I propose to treat the convention state as the flag state because it assists our discussion to do so. The provisions of the agreement implementing the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances envisage that any actions arising from the implementation of the agreement will be taken without delay. Article 14.2 of the agreement provides that a flag state wishing to exercise preferential jurisdiction shall notify the intervening state to this effect as soon as possible and, at the latest, within 14 days of the receipt of the summary of evidence provided for in Article 13 of the agreement.
The explanatory report governing the provisions in this agreement specifically states that the time of notification would have to be short, so that any delay would be minimal, particularly in cases where suspected persons are held in custody and would wish to know which state would prosecute them. The prosecutor and the investigating judge have a legitimate interest in knowing in which state the offence would be prosecuted. On the other hand, it would not be in the interests of justice if the time were so short that the flag state would almost automatically claim preferential jurisdiction. It must, therefore, be sufficiently long to enable the flag state to evaluate the summary of evidence and generally assess the situation together with the involved authorities and, quite possibly, ship owners or operators.
If the amendment, as proposed, was accepted, it would mean that the provisions of the agreement would not be accurately transposed into our law. The question of difficulties of the interpretation of the agreement with other states would arise, in view of the spirit in which this maximum 14-day time limit for the notification of the exercise of preferential jurisdiction was agreed.
I thank Senator Terry for raising the issue and for giving me an opportunity to put the matter on the record of the House. However, the view of the Minister for Justice, Equality and Law Reform is that the 14-day limit reflects the spirit in which the agreement was concluded and, therefore, it is being transposed into our legislation in the way outlined. For that reason, I cannot accept the amendment.
The other amendment to section 7 tabled by Senator Terry suggests that the Minister for Justice, Equality and Law Reform should communicate with the authorities of the convention state – the flag state – in the obverse circumstance. Section 7 deals with request from the convention or flag state for the surrender of persons and vessels in accordance with Article 15 of the agreement.
Where such requests are for the surrender of arrested persons they shall be supported in accordance with Article 15.2 by, in respect of each person, the original or a certified copy of the warrant of arrest or other order having the same effect, issued by a judicial authority in accordance without the procedure prescribed by the law of the flag state. The explanatory report governing the provisions in this agreement specifically indicate that the committee considered that the warrant of arrest would normally contain detailed information with regard to the charges against the detained persons. The right of the accused to know such charges would in any case be covered by the law of the flag state when it had exercised the preferential jurisdiction.
Senator Terry's amendment deals with the process prior to requests for surrender being made. This issue will already have been dealt with at the stage the request is being made. It is not appropriate for inclusion in this section of the Bill. In any case, Article 13.1 of the agreement requests that a summary of the evidence be transmitted without delay to the flag state. The explanatory report governing the provisions of this agreement interprets "without delay" as being as soon as the evidence has been gathered and summarised.
It could arise that the arrests could occur on the high seas, many miles from a port and in stormy conditions whereby a port could not be reached for some time. Accordingly the two days following arrest proposed by Senator Terry would not be appropriate in light of the spirit of what the negotiators of the agreement had in mind. The Minister for Justice, Equality and Law Reform was advised on the provisions to be included in the Bill by the Office of the Chief Parliamentary Counsel. The advice that this particular proposal was not necessary was taken.
I thank the Minister of State for his response and accept it. Many delays can lead to a lengthy period. Can the Minister of State clarify that "without delay" would generally mean 14 days? It could be very open-ended. I accept that two days is not sufficient to gather the information.
The time is 14 days with regard to the first amendment, but I take it the Senator is referring to the second amendment proposed. It is not quantified as such, but when parties are before a court the obligations of natural justice come into play. There is the difficulty of a ship on the high seas in a serious storm and some time away from port. To specify in legislation a time limit after arrest could give rise to many difficulties.
Apart from the conventional position, most systems of judicature require that a person or ship arrested be brought to justice without delay. That is a feature of general jurisprudence, but our advice was that it was not necessary to incorporate that in this legislation in terms of an express time limit after arrest.
I move amendment No. 5:
In page 6, subsection (2), between lines 11 and 12, to insert the following new paragraph:
"(d) inform the person of the evidence preferred against them by providing a summary of the evidence that it is proposed to give to the Convention State,”.
This may have been dealt with already at an earlier section. The amendment is to provide the person who has been arrested with the summary of the evidence which is to be given to the convention state. Is that the norm? The arrested person should be entitled to a summary of the evidence.
Section 5 of the Bill provides for a person arrested under the terms of the agreement to be brought before the High Court as soon as possible. That partly addresses the point made on the earlier section by the Senator.
Section 9(2) of the Bill provides that the court in making an order committing an arrested person to prison will inform the arrested person of a range of matters. These include the fact that he or she will not be surrendered except with his or her consent until 15 days after committal; the fact that the person may make, or have made on their behalf, a complaint to the court concerning their unlawful detention in accordance with Article 40.4.2º of the Constitution; the fact that the person may if he or she is not surrendered be liable to proceedings in the State arising out of the circumstances which led to or followed the arrest.
Senator Terry's amendment proposes that the person being committed to prison at that stage should also be informed of the evidence proffered against them by providing a summary of the evidence it is proposed to give to the flag state. As indicated already, in accordance with section 5 of the Bill, persons arrested are brought before the High Court as soon as possible following arrest. The court has to be satisfied under section 6 of the Bill that the person has been lawfully arrested, prior to remanding them. The court is not required at that stage to have at its disposal the evidence preferred against the arrested person or a summary of the evidence that is proposed to be given to the convention state.
As indicated in a response to a previous amendment, Article 13.1 of the agreement requests that a summary of the evidence be transmitted without delay to the flag state. The explanatory report governing the provisions in this agreement interprets "without delay" as being as soon as the evidence has been gathered and summarised. Accordingly, the proposed amendment by Senator Terry that this material be furnished to the arrested person on their being committed to prison is not what is envisaged as appropriate under the terms of the agreement.
When the arrested person is brought before the High Court, it has to be satisfied that the various statutory matters are met. The question of the summary evidence is something that is transmitted to the flag state. That is the first opportunity there. When the person is brought before the High Court, that is the first time they are before a court. It would be unusual in criminal procedure on a first visitation to the court to require the prosecutor to furnish that amount of detail with regard to evidence.
I ask the Clerk to make a correction under Standing Order 121 to page 5, line 30 of the Bill. The word "court" where it secondly occurs should have a capital "c". I would be obliged if the Clerk would arrange for this to be corrected for the next presentation of the Bill.
I move amendment No. 6:
In page 8, subsection (1), line 23, after "be" to insert "conveyed to or outside the frontiers of the State and there".
This amendment is been proposed by my Labour Party colleagues and me, because we believe that the Bill as it stands would allow a detained person to be handed over to foreign agents in the State. That is inappropriate. As in the case of extradition or deportation, the arrested person should only be handed over at the frontier of the State or alternatively outside the State.
As Senator Tuffy point out, this matter was raised during the passage of the legislation through the Dáil. The section follows closely the wording of other sections in the legislation that make provision for the surrender of persons. I cite section 33 of the Extradition Act 1965 and section 18 of the International War Crimes Tribunal Act 1998. In the case of the corresponding provision in the Extradition Act, this is a long established provision which has been relied on in many cases and has been subject to considerable judicial comment. It is one that the Office of the Chief Parliamentary Counsel believed did not require to be changed. For this reason, as well as for reasons of consistency, it has been replicated.
Senators will note that section 17(2) of the Bill provides that any person to be surrendered by means of an order arising under section 17(1) may be received, held in custody and conveyed out of the State. This addresses the concerns raised in that the provisions of section 17(1) which are silent in relation to these issues cannot be read in isolation from section 17(2) where they are covered. For these reasons, I cannot accept the amendment.
I move amendment No. 7:
In page 10, line 34, after "Minister" to insert "(and, in the event of an application such as is referred to in section 17(1)(a) or (b), the Court referred to in the section)”.
This amendment seeks to ensure that where a person applies for a habeas corpus writ, the court would have to be satisfied that such assurances given that the death penalty would not apply were sufficient. The Minister and the High Court should be required to be satisfied that such assurances given would be sufficient. I would like to hear the Minister of State's reply.
The purpose of the Senator's amendment is to provide that both the Minister and, in certain circumstances, the High Court should refuse the request for surrender from a convention state which is a party to the agreement. The effect of the proposed amendment would be that the Minister and, at a later stage in the proceedings, the High Court would be required to refuse the request for surrender where the offence for which the person was sought was punishable by the death sentence in that country unless satisfactory assurances that the death penalty would not be carried out were received.
The wording in the Bill is based on the premise that it is important that where the death penalty may be an issue, the process should be stopped at the earliest possible stage before the matter has developed. The right to refuse surrender unless certain assurances are given should, therefore, be dealt with at the initial stage when the request for surrender is received by the Minister and before he or she certifies accordingly to the High Court in accordance with section 8. In this way, unnecessary court proceedings would be avoided.
The wording follows the precedent of section 19 of the Extradition Act 1965. The amendment would result in duplication and cross over the lines of the doctrine of the separation of powers. The Minister is dealing with an administrative matter and there would be no added benefit in accepting the amendment which could have the effect of delaying proceedings. It is out of line with existing legislative provisions in regard to the matter. This right that the Minister has is entirely without prejudice to the constitutional right any detained person always has to invoke the protection of the High Court in relation to unlawful custody.
Is the Minister of State satisfied that the situation I outlined will not arise? If a person applies for a habeas corpus writ, surely it should be included in the legislation that this should be a matter for determination in the courts. Is the Minister of State satisfied that the circumstances for which my party is trying to provide will not arise?
There are two points in this regard. In the event that the United States acceded to the convention, this would be an important section as a matter of practicality.
On the point the Senator raised on the section, there is cast upon the Minister a legal obligation. Therefore, there is no suggestion that in refusing this amendment we are seeking to exclude the jurisdiction of the courts – far from it. The courts would always have jurisdiction in a matter of this character were the Minister to be in breach of his duties but the point made is that this matter is addressed at an administrative stage on receipt of the request and before it has proceeded to a judicial phase. That is the form of the legislation which is in accordance with our practice in analogous statutory provisions.
When is it proposed to take Report Stage?
Now.
Is Report Stage being taken now?
If that is agreeable to the House.
I would like to retable amendment No. 1 because I did not discuss it on Committee Stage.
That amendment was not moved. Therefore, it would be out of order for the Senator to move it on Report Stage.
Do I understand that I am not allowed to move it on Report Stage?
I am willing to reply to it on Report Stage.
The Minister of State is prepared to reply to a point Senator Tuffy can raise regarding the amendment on Report Stage but the amendment cannot be moved.
The Labour Party tabled amendment No. 1 on Committee Stage because we do not consider it is necessary to prevent communication with the owner of a vessel. Surely it is sufficient to merely delay such communication to ensure the investigation proceeds properly. We consider this provision in the section is excessive in that it prevents such communication. While it is probably too late at this stage, I would like the Government to consider the amendment, if possible.
I am in a position to at least deal with the point raised by the Senator. She is concerned about that the presence of the words "prevent or" in the relevant subsection and considers that they would be better deleted from the legislation. This refers to section 4, page 4, subsection (2), line 33.
This matter was raised in the other House. The wording contained in section 4(2) derives from Article 11.4 of the agreement which provides that the master of a vessel boarded under the agreement shall be entitled to communicate with the authorities of the vessel's flag state as well as with the owners or operators of a vessel for the purpose of notifying them that the vessel has been boarded. The article also provides that the authorities of the intervening state may prevent or delay any communication with the owners or operators of the vessel if they have reasonable grounds for believing that such communication would obstruct the investigations into the relevant offence. This could arise in a number of circumstances. For example, the master of a vessel, having discussed the matter with the owners or operators, could issue instructions to crew members or take immediate action which would have the effect of interfering with, damaging or destroying evidence required for the investigation or prosecution purposes before it could be secured by enforcement officers. The prevention of radio or other communication would be important in such circumstances.
At some stage it could be the case that while prevention may be necessary, it could be argued that it should not be necessary forever but in these circumstances the provision in the Bill to prevent or delay communication is complementary. It is important to note that section 4 reflects the explicit provisions in the international agreement. The international phrase is "prevent or delay". Therefore, were the amendment to be moved and accepted, we would be in a position where we would not have an accurate transposition in our law of the international agreement.
I thank Senators for their co-operation in the enactment of the legislation.
