Criminal Justice (Terrorist Offences) Bill 2002: Committee Stage.

Sections 1 and 2 agreed to.
NEW SECTION.

I move amendment No. 1:

In page 7, before section 3, to insert the following new section:

"3.—(1) This Act shall, subject tosubsection (2), expire as and from the 31st day of December 2010, unless a resolution has been passed by each House of the Oireachtas resolving that the Act should continue in operation.

(2) A section referred to insubsection (1) may be continued in operation from time to time by a resolution passed by each House of the Oireachtas before its expiry for such period as may be specified in the resolutions.

(3) Before a resolution under this section in relation to a section specified insubsection (1) is passed by either House of the Oireachtas, the Minister for Justice, Equality and Law Reform shall prepare a report, and shall cause a copy of it to be laid before that House, of the operation of the section during the period beginning on the passing of this Act or, as may be appropriate, the date of the latest previous report under this subsection in relation to that section and ending not later than 21 days before the date of the moving of the resolution in that House.

(4) For the avoidance of doubt, any enactment the amendment of which is effected by a section of this Act that ceases to be in operation on and from the day referred to insubsection (1) or, as the case may be, the expiry of the period for which it is continued in operation under subsection (2) (’the expiry’) shall, as and from that day or, as the case may be, the expiry, apply and have effect as it applied and had effect immediately before the passing of this Act but subject to any amendments made by any other Act of the Oireachtas after such passing.”

On Second Stage last week, I spoke about the need for a review of this legislation. The amendment I have moved proposes that it should be reviewed in 2010. The Bill is emergency legislation, in effect, and I ask that it be dealt with as such. It should be reviewed in 2010. I had hoped that the Minister would have come up with an amendment in this regard after discussing the matter on Second Stage. The legislation deserves to be re-examined. The year 2010 should be an acceptable date for such a review.

The Senator's amendment proposes that a sunset clause be inserted into the Bill. This suggestion was debated in the other House at some length and was also mentioned on Second Stage in this House. While I have reflected on the issue, I have not changed my mind on it. Senator Cummins is aware that Deputy Ó Snodaigh of Sinn Féin tabled an amendment on Report Stage in the other House, the effect of which would have been to insert a sunset clause into the Bill. I did not accept the amendment and I do not propose to accept this amendment for similar reasons.

No legislation is permanent in the sense that it cannot be changed, but this Bill is intended to be a standing part of our legislation. I remind Senator Cummins that the central purpose of the Bill is to give effect to Ireland's international obligations under the UN convention on terrorism and the EU framework decision on combatting terrorism. Perhaps those international instruments will be revoked, repealed, amended or developed at some future stage, but Ireland has certain obligations, as a member of the UN and a member state of the EU, to give effect to them as long as they are in place. I do not think it would be appropriate to include in law a provision that Ireland's obligation in international law to honour a permanent obligation in international law will cease periodically. Therefore, I do not favour the inclusion of a sunset clause in the Bill.

I will be surprised if it is not proposed to amend some aspect of our law in 2010, so the matter will perforce come up for review at that stage. In that context, I hope that matters on this island will have developed by 2010. I hope we will have a totally peaceful and democratic atmosphere in all our political affairs on every part of this island by that stage. A further review of the legislation may well have to take place in that context. I will proceed on the basis that international terrorism is a semi-permanent threat and, therefore, I will not put in place temporary legislation to deal with it. It would make eminent sense to build a sunset clause into the legislation if the framework decision or the UN terrorism instruments to which I am giving effect were time-limited instruments. It would not be wise to place a statutory obligation on a future Oireachtas to review the legislation.

I agree that we should meet our international obligations. As I said on Second Stage, the Minister has the full support of this side of the House for the main thrust of the Bill. We need to combat terrorism at every possible opportunity. This is a significant Bill. In it, we are complying with EU regulations and our UN obligations. We should provide for a review of the legislation, however. The Minister has said it would be unusual not to have reviewed the legislation by 2010, the date mentioned in my amendment. We should include in the Bill a mechanism to ensure that the legislation will be examined. I hope legislation of this nature will not be needed at that time. I have explained the reasons for this amendment, which I do not intend to pursue. A review of this major legislation — it is practically emergency legislation — should take place in 2010 because it is so important.

I am fully persuaded by the point made by the Minister, but I would like to make a helpful suggestion. People have certain worries about legislation of this sort. Would it be possible for the relevant Minister to report to the Oireachtas on the operation of this legislation once a year, so that people know what is going on? He would not have to report in detail but in broad terms about the cases and issues which have arisen.

I support Senator Cummins's amendment. I raised this issue on Second Stage. What are the Department's plans for the implementation of the report published by Mr. Justice Hederman?

I will outline the Government's position on the Hederman committee report. The provision in the Constitution for special criminal courts is not an emergency provision. It comes into play when the ordinary courts are inadequate for the administration of justice. While it is part of the Constitution, it is not an emergency extra-constitutional arrangement. We have an obligation to ensure that the ordinary courts are capable of discharging criminal justice as far as possible.

I emphasise that I am a great fan of jury trials. I will never be shaken from my belief that they are superior to judge-only criminal trials. When criminal justice verdicts are given by juries, the population accepts that the scales of justice have been evenly held, the ordinary person's perspective of the relevant events has been considered and the evidence before the court has been taken into account. One does not usually hear people saying a jury's decision was a travesty of justice. Unfortunately, people find it entirely possible to say this of judge-only trials, irrespective of the form of those trials or whether they are held north or south of the Border. Judge-only trials are always the focus of an immediate and bitter onslaught by those who dispute the verdict.

Another problem with judge-only verdicts is that all the reasons therefor must be stated and elaborated upon at great length. If a jury has a doubt about the evidence of a particular prosecution witness, it encapsulates all that doubt in a not guilty verdict. It does not dismember in public the evidence of an individual or set out in written form precisely why it preferred one person's evidence to that of another. However, in a judge-only process, a judge is faced with the necessity of giving a reason for preferring one person's evidence to that of another. We have had cases in which witnesses' credibility and integrity were the subject of judicial comment. There is nothing wrong with this if it is central to a verdict in a judge-only forum, but it always strikes me that it can create difficulties if two different courts do not share the same view of a particular witness's credibility. One must ask whether public confidence in the system of justice is enhanced if three judges say on occasion A that a particular witness is not credible and, on occasion B, accept key evidence given by that witness. A witness could be credible on one occasion and incredible on another, but it does not do very much for public confidence if the credibility of a witness who testifies repeatedly before the courts is itself the subject of constant written evaluations. I believe in the issuing of a guilty or not guilty verdict, as appropriate.

Sometimes we are inclined to test everything in the legal system to the point of destruction. The jury system, although it has evolved over centuries and is not the same now as when it started, has a great amount of common sense attached to it and therefore we should be very careful before we depart from it. I say this only to emphasise that we should do everything in our power to strengthen the jury trial process. I have a fairly heavy caseload of legislation in this regard. I am conscious that we do not have a very sophisticated method of protecting, assisting or sequestering jurors.

It is true that a reasonably lengthy trial would represent an economic disaster for a self-employed person summoned for jury service. A self-employed electrician called to Athlone Circuit Court to preside as a juror in a trial that lasts for two weeks is not given a cheque or thanked for his service to justice. It is just assumed that his time is given freely. This may be reasonable in respect of short cases. In one-day cases it may be an obligation of citizenship. It is strange that employees are in a wholly different position from that of the self-employed. This should be examined. I imagine that the Department of Finance will have a view on it. If everybody who comes to court as a witness gets his or her expenses paid and the jurors are unpaid, it will skew the cross-sectional nature of jury selection against those who simply cannot afford to become involved in a lengthy case.

On Senator Tuffy's remarks on jury trial, I hear people say on occasion that some cases, such as lengthy fraud cases, are too complicated for juries to follow. In response, I always ask whether there is justice in the putting of a person into jail under circumstances in which 12 jurors, who take an oath to follow the proceedings of the trial, cannot understand why that person is put in jail. It is not right to put somebody in jail if 12 people cannot follow the reasoning behind the decision to put that person in jail.

In the case of complex financial transactions, the answer is not to say that jurors cannot be expected to follow them. Rather, the answer may be to say that jurors should have access to expert evidence and that both the prosecution and defence should be able to convey their cases to the jury without simply relating direct evidence of a multiplicity of transactions.

I have great faith in jury trial and believe we should do all we can to sustain it. I hope political developments in this island will be such that I will be able to address the Hederman report before the end of this term. The care with which both the majority and minority made their carefully thought-out arguments in the report is such that they deserve some form of response. The report should not be put on the shelf indefinitely.

Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4.

Amendments Nos. 2 and 3 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 2:

In page 8, line 32, after "2002" to insert "(OJ L 164, 22.6.2002, P3)".

Amendments Nos. 2 and 3 are drafting amendments to insert references to the relevant passages in theOfficial Journal of the European Union. I would like to hear the Minister’s comments thereon.

I understand the purpose of the amendments is to insert references to the published opinions of the European Parliament. For ease of reference, we have gone to the trouble of scheduling the full text of the framework decisions in both the Irish and English languages in Schedule 1 to the Bill.

On amendment No. 3, the reference to the framework decision which is made in the Bill is included in section 4 for the purpose of definition to ensure that it is correctly identified as it is referred to in some of the provisions of the Bill. I thank the Senator for the thought behind the amendment but really do not recognise the value of referring to the opinion of the European Parliament because it does not assist in identifying the framework decision to which effect is being given. We would complicate law greatly if we were to study our legislation by reference to the opinions of the European Parliament. The unintended consequence of going down this road would be that nobody would schedule texts at all. One would simply be told to find the relevant information oneself. I would prefer to leave the legislation as it stands.

Amendment, by leave, withdrawn.
Amendment No. 3 not moved.

Amendment No. 5 is cognate to amendment No. 4. We will discuss amendments Nos. 4 and 5 together by agreement.

I move amendment No. 4:

In page 9, line 3, after "a" to insert"democratic".

The Human Rights Commission suggested this amendment because the broad definition of terrorism in the Bill would cover legitimate acts of rebellion against a tyrannical or despotic government. We want to ensure that is as far as it would go.

I am grateful to the Senator for raising this issue. Since publication of the Bill several concerns have been expressed about the possibility that a person engaged in activity against an oppressive or tyrannical regime might be prosecuted and convicted under the provisions of the Bill.

As I said on Committee Stage in the other House, however, there is no solution to the issue which these amendments attempt to address in good faith. I am conscious of the Senator's belief and that of the Human Rights Commission that insertion of the word "democratic" would solve the problem but that is not the case. There are regimes which some would regard as democratic but others would not, according to one's definition of the word "democratic".

On Committee Stage in the other House I cited the example of the republic generally called North Korea, which refers to itself as the Democratic People's Republic of Korea. The Communist Party of North Korea has created a dictatorship of the proletariat which it claims is in some sense democratic. Many Marxist guerrillas around the world are still trying to establish dictatorships of the proletariat on Marxist-Leninist principles. In their minds they are establishing democracy but that is far from what we would regard as democratic.

North Korea is not the only example of this; there are many others. The multi-party system may not be a prerequisite for definition of a democracy. For example, as I understand it, the People's Republic of Cuba allows only one party to contest elections, the Communist Party. Others are not allowed to organise parties to run for election, which is hardly democratic.

The obverse is that there are still autocracies of one kind or another around the world. I see from today's newspapers that the King of Nepal has extensive powers and faces a classic Maoist guerrilla movement which seeks leadership. It is difficult to say that either a Marxist-Leninist group or a king is democratic. When one looks at the Arab Emirates, the kingdoms and principalities around the world, one is forced to ask what the word democratic means and whether including it here would solve any problems.

Is a person contending for power in a manifestly undemocratic regime, such as those in some Arabian peninsula states, free to carry out acts of terrorism? There must be a point at which it is not legitimate for someone to commit terrorist acts in states such as Saudi Arabia or Brunei just because they do not have our system of democracy.

The mechanism chosen, after 18 months debate in Government, to give the Attorney General's approval the status of a condition precedent to a prosecution going on under this legislation, is a better approach than the superficially plausible but deeply problematic statement that it would be a defence for anybody planning a terrorist act to show that the state against which he or she plotted was not democratic. We would not accept that a person accused here of planning to set off a bomb in a supermarket in Havana would have a full defence in law because he persuaded a court or jury that the system in Cuba was not what we would call democratic. Likewise, for someone to perpetrate an equivalent act in a state because it is a monarchy is not a defence. That is not a viable method for distinguishing the two cases.

I too was persuaded of the Minister's point. I would find it difficult to decide who would determine, and how, what was democratic. There are people in this country who think we do not have a democratic Government. The essential point is that the Act refers to unduly compelling by terrorism. I agree with the Minister that one cannot regard acts of sheer terrorism and murder as defensible.

Nothing in this Act prevents people conducting a protest or preparations for a change of government by means we would accept and approve. The filter of the Attorney General seems the most sensible way of dealing with this issue.

Senator Maurice Hayes refers to murder but the definition of terrorism in the Bill is much broader. To respond to the Minister's points, if we used the word democratic in the legislation it would refer to our understanding of democracy. We consider this to be a democratic society and our judgment would be that democracy includes free elections in which people have the right to put themselves forward and run. We have certain restrictions but they must be reasonable.

We would surely judge by our standard of democracy. The term "a government" is used in the legislation and we must make a judgment as to what constitutes a government. Why not "democratic" too? The most important feature of our democracy is that if we are not happy with a Government's performance we can decide not to re-elect it. We also have an Opposition that can make a Government accountable in Parliament. That is the type of democracy by which we would make the judgment.

I do not condone murder but in determining a person's acts as terrorism under this legislation one must also consider the situation the person faces. It may be necessary to go beyond the form a protest might take here to bring a government or monarchy to account on a particular issue. I am not referring to killing people or other violence but the definition of terrorism in the legislation could be interpreted more broadly.

It could if the person bringing the prosecutions had a bit of wit too.

I may get into trouble by saying this but at present there is a major controversy as to whether it is possible, right or appropriate for liberal democracies to engage in regime change to bring about liberal democracy, as we see it, in places where we say it does not exist. I do not want to get involved in that debate here. While Senator Tuffy advances the term "democratic", I must deal with what it would actually mean. If, for example, I am asked whether this applies to North Korea, Cuba, Morocco, Bahrain, Kuwait or Saudi Arabia, I must be able to answer yes or no. I cannot simply state that if it does not apply, what would otherwise be a terrorist offence internationally can be planned in Ireland in respect of all those countries.

The terrorist offences under discussion are set on page 78 of the Bill from paragraphs (a) to (i) and include attacks on a person’s life which may cause death, attacks on a person’s physical integrity, kidnapping and hostage taking and a series of other offences. If I were to accept the proposition that because a country has neither elections nor a parliament no offence is committed if somebody plans a terrorist atrocity on Irish soil to be perpetrated in that country, the effect would be far-reaching.

While we may all have our pet list of kingdoms or people's democracies, to take the discussion beyond left or right I will use the example of the Vatican. Is it a democracy? I could not accept that it is right to let off a bomb in the Vatican or to plan in Ireland to do so simply because it does not have elections. Of course the Vatican does have elections but they are for life.

I appreciate Senator Tuffy's intention but I must accept the Minister's point. If we include the word "democratic" in the Bill, we must define what it means, which would take us into a minefield. I accept the Minister's position.

Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
Section 4 agreed to.
Sections 5 to 50, inclusive, agreed to.
NEW SECTION.

I move amendment No. 6:

In page 47, before section 51, to insert the following new section:

"51.—Where the Director of Public Prosecutions certifies, pursuant to the Offences against the State Act 1939, that the ordinary courts are inadequate for the trial of an offence, the Director shall, if requested by the Defendant, either give reasons for the making of such a certificate or apply to the Court for the appointment of special counsel to inquire into the adequacy of the reasons for the certificate.".

The purpose of the amendment is to rectify the breach of international law which has been held by the United Nations to exist, given the power of the Director of Public Prosecutions to send offences for trial by the Special Criminal Court without providing reasons. This procedure is condemned by the UN Human Rights Committee in the case of Kavanaghv. Ireland in 2001. I would like the Minister to respond.

I acknowledge that the Senator raises an interesting and important issue, namely, whether the decision of the Director of Public Prosecutions to refer a case to the Special Criminal Court should be one with reasons attached to it. The purpose of giving reasons is obviously with a view in some way to testing the decision to find if it was proper or to challenge the reasoning given.

This raises several collateral issues. For example, it may be decided to send me to the Special Criminal Court because the Director of Public Prosecutions believes I will tamper with a jury. If that reason is made public, is this prejudicial to my innocence? If a debate takes place, in court or elsewhere, as to whether I am likely to interfere with a jury, who my associates are and what I do in my spare time other than in regard to the offence with which I am charged, does it improve matters that a justiciable controversy is created, prior to the commencement of a case, as to my character, past actions or otherwise? For example, if the Director of Public Prosecutions is strongly and for good reason of the view that I am likely to tamper with the jury, is it right that he must make public his evidence to support that view?

I assume the amendment's reference to "special counsel" is to a counsel who could be made privy to the reasoning without revealing the matter to his or her client.

That carries with it certain implications, including, for example, that I could be represented in a court case by counsel who would know why I won the case, or what was held against me if I lost it. However, I would not know what my own counsel knew was being alleged against me in court proceedings. That carries with it many complex issues as to whether it is appropriate for me to go to court and know that a hearing or trial of some kind took place at which I was represented, but about which the grounds for the decision were never revealed to me.

I do not know whether that is a huge advance on the current situation. I am not saying this dismissively because I have spent some time contemplating all of these issues. I am not persuaded that the solution proposed by the Senator is the most attractive one.

When I was Attorney General, this matter was raised before the United Nations committee in Geneva by a number of participants who were ably assisted by NGOs in Ireland in identifying this issue in Irish law. This was an occasion prior to the more recent committee decision on this issue. I found it odd that countries whose representatives said that jury trial was neither attractive nor necessary, and would not guarantee it to their own citizens, were saying that the mechanism whereby the Special Criminal Court's jurisdiction was invoked was, in their opinion, in breach of the convention. It would seem to me that in order to have a reasoned view on that issue, one would, first, have to understand the common law system and, second, share the view that a jury trial is, in our order of things, superior to a judge only trial. One would also have to come up with some kind of mechanism, which would stand up to scrutiny, for making this decision in a way that would give greater rights to an accused person. That is the issue. Are we going to have some mechanism for a hearing at which the accused person is represented but is not entitled to attend and know the reason, and the public is not entitled to know the reasons because it could prejudice a trial?

I will provide a straight example. Somebody might be charged with murder and the issue would be whether he or she should go to the Special Criminal Court. A hearing may be held as to the accused's propensity to interfere with witnesses or intimidate jurors. At that hearing, much evidence could be put on the table tending to suggest that the accused was likely to interfere with jurors and intimidate witnesses. The hearing may decide that, on balance, the accused should go before a jury trial but if all that pre-trial hearing evidence was made public it could be massively prejudicial to a jury trial. If there was a law that such evidence must remain unpublished and, in certain cases, that not even the basis of the opinion could be revealed to the accused, it would be hard to say that was a major advance on the current situation.

To cut a long story short, I concede that this is a serious issue but it is not one about which I am in a position to offer a serious, thought-out solution at this point. I am not confident that the solution offered by the Senator's amendment would be a significant improvement on the existing situation.

I am prepared to accept what the Minister has said, that our solution might not be the right one. I hope he will examine the matter, however. The UN human rights committee has raised this issue, so surely it is our responsibility to try to address it. We should try to find the required mechanism, even if it is difficult to do so due to the complexity of the issue. We must respond; we cannot just say it is too difficult to address the matter raised by the UN committee. Surely it is the Minister's duty to address the difficulty outlined by the UN. He should do so. It may not be possible in the manner proposed by my amendment but he has to come up with another solution.

I agree with Senator Tuffy that the issue is a very serious one and I am glad the Minister has taken it seriously. I am thinking about his comment that eminent jurists elsewhere have expressed a view on the matter. They should try living in a terror-stricken area for a while and they would see it differently. The nature of terrorism is that it terrorises people. One saw it occurring in some recent events. I have seen such cases. One of the reasons the Diplock courts were introduced in the North was because of attacks on jurors and not only directly on jurors but through their families and extended families. It is almost axiomatic that it becomes extremely difficult to think in terms of a jury trial for terrorist offences, unless it concerns an external terrorist posing a threat to some other state, with few resources or friends in this State. By and large, however, the connotation of terrorism changes the geometry of the situation in which it is being considered.

Amendment, by leave, withdrawn.
SECTION 51.
Question proposed: "That section 51 stand part of the Bill."

It is my intention to introduce a further amendment on Report Stage. As the House is aware, it is the Government's intention to establish a second Special Criminal Court. That is being done with a view to ensuring that people awaiting trial would not face lengthy delays. The establishment of two such courts means that the trial of offences will be speeded up. It will no longer be a matter of one court dealing with cases in a linear way, one after another. I want to have a situation whereby if somebody is sent to one court they can be sent to the other court so that the load can be shared. I am advised that I need a statutory amendment to bring that about. It was my intention to do so on Committee Stage but I will now have to do it on Report Stage because the wording of the amendment has run into a bit of trouble. Under the procedure of the House, I have to mention it at this point.

Is it appropriate to make such a major change on Report Stage? Should such an amendment be made to this legislation at this point?

Is there such an amendment on the list?

The Minister was speaking about introducing an amendment on Report Stage.

I think we are talking about two separate things. I am signalling to the House what I propose to do on Report Stage. I think Senator Cummins is asking me about the retention of communications data.

Question put and agreed to.
Sections 52 to 58, inclusive, agreed to.
NEW SECTIONS.
Government amendment No. 7:
In page 55, before section 59 and Part 7 of the Bill, to insert the following new section:
"Part 7
Communications Data
59.—(1) In this Part—
‘Act of 1993' means the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993;
‘aggregated data' means data that cannot be related to individual subscribers or users;
‘data' means communications data;
‘data retention request' means a request made undersection 61 for the retention of traffic data or location data or both;
‘designated judge' means the person designated under section 8 of the Act of 1993;
‘Directive' means Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and protection of privacy in the electronic communications sector;
‘disclosure request' means a request undersection 62 for the disclosure of traffic data or location data retained in accordance with section 61(5);
‘Garda Commissioner' means the Commissioner of the Garda Síochána;
‘processing' has the same meaning as in the Data Protection Acts 1988 and 2003;
‘Referee' means the holder of the office of Complaints Referee under the Act of 1993;
‘service provider' means a person who is engaged in the provision of a publicly available electronic communications service by means of fixed line or mobile telephones.
(2) A word or expression that is used but not defined in this Part and is defined in the Directive has the same meaning in this Part as in the Directive.".

The purpose of this and subsequent amendments is to give a solid basis in Irish law to the retention of communication data and to protect people in a way that is not done at the moment. Information concerning the use made of communications services is an essential aid to the Garda Síochána in the fight against crime and in combating terrorism and, together with the Defence Forces, the protection and security of the State.

Phone companies generate data regarding who phoned whom so that they can work out who pays the charge. Although there is provision in law to permit the providers of electronic communications services to disclose such information to the Garda and the Defence Forces, there is no obligation in law providing for the retention of such information in the first place.

In April 2002 the then Minister for Public Enterprise issued directions at the request of my predecessor to providers of telecommunications services obliging them to retain data for at least three years. Those directions were intended to be a temporary measure bridging the gap between the transposition into Irish law of an EU directive on privacy and electronic communications and the introduction of primary legislation on data retention which was approved by the Government on 20 March 2002. The transposition of that directive mandates that providers are confined to retaining data for a considerably shorter period than three years. As a result of an extensive consultation process with interested parties and publication of a draft EU framework decision on data retention during the Irish Presidency, the legislation was never published.

On 4 January 2005 the Data Protection Commissioner, Mr. Joseph Meade, issued enforcement orders to the providers in receipt of ministerial directions obliging them, with effect from 1 May of this year, to erase data which is more than six months old. In other words, he served a notice on them obliging them to erase data which was more than six months old. The commissioner took the view, and he is independent of me, that the temporary directions were in force too long and that it was time to replace them with primary legislation. Without some contrary action being taken, the initiative by the Data Protection Commissioner would, if the telecommunications companies accepted its validity, seriously undermine the ability of the Garda Síochána to investigate criminal activity, including terrorism and to protect the security of the State.

In its decision of 21 January 2005 in the case of the Director of Public Prosecutionsv. Murphy the Court of Criminal Appeal upheld the admissibility of telecommunications data as evidence. In his opinion on this decision the Attorney General has stated that, notwithstanding the judgment of the Court of Criminal Appeal, it will still be necessary to enact new primary legislation requiring the retention of data by telecommunications companies. He also advised that the legislation would require safeguards against the possible misuse of statutory data retention provisions by the security forces.

The amendments seek to address the situation whereby providers of electronic communications services will be subject to two conflicting obligations in respect of retaining data information. These are the directions that were given under section 110 of the Postal and Telecommunications Act 1983 requiring that they retain data for at least 36 months and, now, the enforcement notice served by the Data Protection Commissioner under the Data Protection Act, requiring that they delete such data after six months. The advice of the Attorney General on the legality of the commissioner's actions was sought and he advised that the commissioner may be acting outside of his powers in this context but that the need for primary legislation still remains. I cannot go into a legal no man's land at this stage where there are two apparently conflicting directives given to telecommunications companies.

The framework decision ran into difficulties with the European Commission. It is difficult to understand exactly what has happened to the framework decision but it appears that the commissioner is of the strong view that data retention should be dealt with in the first pillar of the European Union treaties, that is the same pillar as data protection and communications. While it is probably safe to assume that the framework decision in its current form is moribund, we do not know what proposal will take its place. The Commission has apparently promised a first pillar on data retention but, whatever the outcome, it seems that any EU initiative will not now take place in a timeframe that would allow me to meet the May deadline set by the Data Protection Commissioner. Faced with that I must act now before 5 May. There is no EU cavalry coming down the hill to help me. I must sort out this conflict.

What we have put forward here is a statutory basis to replace the existing one, which allows a senior Garda officer to have access to such data for the purpose of investigating serious crime under the 1983 Act. What we now propose is to give that a statutory basis by putting a statutory duty on telecommunications bodies to keep the data they have for 36 months and to bring in a system of protections which are analogous to those that apply at the moment in respect of a slightly different situation, namely, the interception of communications regime.

Members of this House may or may not know that at present the Minister for Justice, Equality and Law Reform signs warrants for what is colloquially called tapping phones and opening mail in the post. First, the Commissioner of the Garda Síochána or the appropriate person in the Army applies for a warrant to an authorised officer in my Department who is designated under statute. That authorised officer must evaluate the application and prepare a file for me justifying the application if he or she supports it. The application comes before me with reasons and a background memorandum supporting the application for a wire tap or a warrant to intercept postal communications. If I grant the warrant it is put into effect.

There are two safeguards in place. First, if somebody believes he or she is being improperly tapped, a judicial officer is appointed to check out the situation. Second, there is a wholly different regime whereby a different judicial officer, a senior judge, reviews all the decisions I make every year and is in a position to report any impropriety on my part or any doubtful cases where I might have strayed from the straight and narrow. That is what happens regarding interceptions at present.

How long have those regulations been in place?

They have been in place since 1993, a fairly long time.

They should have been there much longer.

Prior to that it was done by warrant under some postal Act of the late 19th century and a decision of the Court of Appeal or the House of Lords had interpreted the term "postal packet" as being broad enough to include a telephone call.

That was some creative judging. It was on that flimsy basis that this kind of work was done until comparatively recently.

In 1993 the Government introduced legislation to deal with this issue. The position at present is that there is no supervision whatsoever afterwards of whether a particular application was justified or unjustified. There is no mechanism to look back at it to review it. I emphasise this has to do with data, not what is said in the course of a telephone conversation, merely the fact that A telephoned B at a particular time and the telephone call took X amount of time. That is the kind of data we are talking about.

What about the content?

The content is not covered. This is purely data on the fact that a transaction has taken place through a telecommunications company.

Surely the content is not recorded?

I presume the content is not recorded. The law in regard to content is as I have described it and requires ministerial intervention.

Clearly it is impractical to have ministerial intervention in every request for who telephoned who. As a matter of practicality in the investigation of, say, a kidnapping, a bank robbery or whatever, that work would involve looking at a suspect and seeing who did the suspect telephone during the relevant period. It might also involve looking at the suspect's contacts. I would spend all my life writing further warrants and I would have to move into Garda headquarters because one could not have the same degree of ministerial control and accountability in an issue that is going to change from hour to hour. I do not want to speak about current cases but Members are aware this kind of material is important and that it could not possibly involve the Minister having an intervening role as he does in relation to interception of the content of communications.

It appears to me that if we are giving a statutory basis for the retention of data we should, at the very least, insert the two judicial protections to ensure that somebody who thinks their data has been improperly accessed can make a complaint to a judicial figure and have their situation investigated. Even if there is no controversy and nobody is aware of it, there is a person whose job it is to go over all these transactions to ensure it is not being abused by the senior Garda officers who are given the power to apply for this kind of data. That is the balance that is being struck here.

Senator Cummins asked why now and why in this mechanism. I have until 5 May to deal with this issue. The Houses of the Oireachtas will have its Easter holidays and the St. Patrick's Day break fairly soon. If I were to provide for all of this in a separate Bill it would be doubtful if I could meet the 5 May deadline. I can say for a certainty that it is cognate to this Bill in that any effort to monitor international terrorism or to counter it would fall flat on its face if, on 5 May, telecommunications data was to become erased automatically after six months. Any effort to look back over a reasonable period, which is 36 months in the Government's view, would become impossible if the telecommunications companies accepted the validity of the directive they have now received from the Data Commissioner. I had hoped to avail of the European basis for making rules in this area but it did not materialise. I have now my own sunset clause coming down the tracks at me on 5 May. Therefore, after long consideration it was decided the appropriate course of action was to take advantage of this legislative vehicle to insert these new provisions into our law.

This is a complicated issue. Is the word "data" defined in the legislation? My understanding is that the Garda Commissioner has to request the service provider to keep the data and it would not have to keep it unless requested by the commissioner. Surely the Garda Commissioner would be inclined to write to all the service providers asking them to keep the data. Surely also the legislation will be used by the Garda Commissioner to request every service provider to keep the data concerned. If so, does not that mean that virtually every person who uses the services of telecommunications companies would have a possible grievance under the section and could make a complaint? The provision appears very broad in its application.

The position is that under the 1993 Act a senior Garda officer can apply to a telecommunications company for access to its telecommunications data in pursuit of an investigation of a serious offence. Today as we speak, all of us are subject to the fact that our telephone transactions are recorded and accessible in that scenario. We do not all ask who is applying for access to our telephone data. In this regard, I do not see how bringing in new protections would change our attitude. The real issue is that since telecos, as they are called, are not obliged to hold data, they assemble the data to prepare their bills and manage their business appropriately and, presumably, to enable them to fend off cases that telephone conversations were never made.

If there was no retention of this type everybody could say they never made, say, 5,000 telephone calls during that month. The telecos have to be in a position to say that one did made the calls and these are the telephone transactions one made at a particular time. They have to amass the data even from a defensive point of view, otherwise every bill would be disputed. People would say their bill looked steep and that they did not use their phone often and challenge the telecos to prove the contrary. The telecos have to be in a position to say that one's telephone was used X number of times for international calls and X number of times for local locals and to show the times and dates.

The issue is first, whether that kind of material can be stored indefinitely and if there is an increased cost and, second, if the Data Protection Commissioner arrives at a view regarding, say, a six-month period but without a statutory authority, what would be the implications for the investigation of serious crime from my perspective? I must ask myself that question. The commissioner is entitled to his view but I have to take a different view into account. All in all, I believe that 36 months is an appropriate period. I do not believe there is much difference between six months and 36 months. If my privacy is in some way infringed by having the information on file or on a hard disk for six months, I do not regard it as a great reassurance to me to know that it is erased after six months rather than 36 months. It would not change my sense of wellbeing to know that an additional period of time had not elapsed before the data was destroyed.

I apologise for interrupting the Minister but it is being retained for a different purpose than originally. Surely six months does not have the same legal purpose.

Is the Senator addressing the Minister?

Yes, through the Chair.

It is a matter of degree. Perhaps I should inform the House that on one occasion I received a visitor in my Department when my office was in the other building on St. Stephen's Green. He was a Canadian data protection commissioner. He told me it was his strong view that there should be no retention of any kind. I asked him if he did not regard that as a very strong position to take and he said, "No". He was adamant that this was an unwarranted infringement on everybody's privacy and that the State did not need to have this kind of information. It could use wire tapping of the classic kind but retention was an infringement of everybody's liberty. I noted that shortly after his conversation with me he lost office in circumstances where his expenses figured.

His telephone was tapped.

No, just his expenses. In my view whether the period is six months or 36 months makes very little difference. I do not think that with these safeguards in particular it is a matter of great importance.

I have always been unimpressed by the arguments that material deleted after a period of time increases one's dignity and rights as a human being. This notion that if, for instance, I gave a fingerprint which is destroyed after some specified period of time does not really worry me. I am aware of a contrary opinion which worries about a big brother state amassing information indefinitely about everybody. The 36-month period is what the Government favours.

The fact that a person has communicated with somebody else could in certain circumstances be intrusive on his or her liberty. If one telephoned a certain type of chat line, I presume one is entitled to keep that fact secret. The only circumstance in which that is likely to be investigated now is if a senior Garda officer goes looking for it, subject to the knowledge that his or her application for it will be the subject of judicial scrutiny afterwards and he or she will be called to account if he or she abuses the facility.

The Minister has explained the point very well. I can see now why he would have no problem in clarifying matters for any jury. The whole area of telecommunications and retention of data is very important where crime is concerned and to which the Minister referred. In my view if the Garda Commissioner is of the opinion that it is necessary to retain data such as that relating to terrorist offences, for instance, for 36 months, the House should take his advice on this and agree to 36 months.

There is a big difference between six months and 36 months. However, if the commissioner believes it would be helpful to retain such records for that period in respect of the security of the State, the House should agree.

Is it the case that if I phone somebody it is possible for the phone companies to have the content of the conversation without a pre-tap? If I make a threatening phone call to a person who then complains to the Garda, can the Garda elicit the content of the phone call from the phone company?

If as frequently happens, somebody says they are being subjected to harassment or nuisance calls, all the Garda can establish is that one phone contacted another at a particular time and for a particular length of time. The Senator can be reassured that the content of the call is not recorded. What the Senator says on the phone is not on some recording device, unless the Minister, on foot of the statutory process I mentioned earlier, sanctioned in advance a tap on his phone. For instance, if one is investigating nuisance or harassment calls, there is no method whereby the telecommunications company or the Garda can summon up from somewhere the content of the conversation.

I think this issue has been exhausted. The House has spent nearly 20 minutes on the specific point about the time period. With respect, I am not trying to stop the debate but unless the Senator has something new to offer, I would like to move on.

This is a new amendment which has just been introduced at this late stage.

I am only concerned about the longevity of the debate and whether it is moving into repetition.

This is a very important area which the Minister has outlined.

It is a very significant new departure. The Minister mentioned a period of six months for retention of information. My understanding is that the reason for keeping the information for six months was different from the reason that information will be kept for three years under this legislation. I can understand the reasoning behind it and I am not arguing against it. However, this provision may make everybody a potential criminal in a way. One of my concerns is the definition of "data". It is no good saying that there are currently no recordings. We need to know that data does not include such recordings. Where is the definition of "data" in the Bill because I cannot see it?

I presume the Minister is not asking people to retain data in general. I presume the Garda will ask that data be retained in respect of calls emanating from person X or situation X. Which of those two is it?

What is meant in the Bill is there should be an obligation to keep data which is currently generally kept. This means that a phone company could not simply say it does not keep data at all. In such a situation, all the baddies in the world would use that phone company. If one of the three mobile phone companies decided not to keep any data and it was therefore never possible to establish whether any of their phones had communicated with another, all the baddies would go to that service because the Garda would not be in a position to establish whether a person did or did not contact another person.

Senator Maurice Hayes asked the question. This is access to data which is kept and it is not a case of the Garda deciding it wants Senator Maurice Hayes's data to be retained for a period of time. This provision asks telecommunications companies to keep their electronic data for a period of 36 months.

Senator Tuffy is anxious that the content be excluded in a particular way. What is intended by these amendments is to use the definitions in directive 2002/58/EC of the European Parliament and Council. I will examine the matter before Report Stage to ensure it is clear it does not relate to the content of communications and tighten up the provision if possible.

Amendment agreed to.
Government amendment No. 8:
In page 55, before section 59 and Part 7 of the Bill, to insert the following new section:
"60.—This Part applies to data relating to communications transmitted by means of a fixed line or mobile telephone, but it does not apply to the content of such communications.".

We have already debated the principle involved in this amendment.

Amendment agreed to.
Government amendment No. 9:
In page 55, before section 59 and Part 7 of the Bill, to insert the following new section:
"61.—(1) Subject tosubsections (2) and (4), the Garda Commissioner may request a service provider to retain, for a period of 3 years, traffic data or location data or both for the purposes of—
(a) the prevention, detection, investigation or prosecution of crime (including but not limited to terrorist offences), or
(b) the safeguarding of the security of the State.
(2) The data retention request must be made in writing.
(3) Traffic data and location data that are in the possession of a service provider on the passing of this Act and that were retained by the service provider for the purposes specified insubsection (1) are deemed to have been the subject of a data retention request, but only if the 3 year retention period for the data has not elapsed before the passing of this Act.
(4) For the purposes of this Part, the 3 year retention period begins—
(a) in the case of traffic data or location data referred to in subsection (3), on the date before the passing of this Act on which the data were first processed by the service provider, or
(b) in the case of any other traffic data or location data, on the date on or after the passing of this Act on which the data were first so processed.
(5) Notwithstanding any other enactment or instrument, a service provider shall retain, for the purposes and the period specified insubsection (1), the data specified in a data retention request made to the provider.
(6) Nothing in this section shall be taken as requiring a service provider to retain aggregated data or data that have been made anonymous."

This amendment relates to the obligation to retain data and requests by the Garda Síochána to have access to such data. It provides that the Garda Commissioner may request a service provider to retain data for the purposes of the prevention, detection, investigation or prosecution of crime, including but not limited to terrorist offences, or the safeguarding of the security of the State.

Amendment agreed to.
Government amendment No. 10:
In page 55, before section 59 and Part 7 of the Bill, to insert the following new section:
"62.—(1) Subject tosubsection (7), a service provider shall not access data retained in accordance with section 61(5), except—
(a) at the request and with the consent of the person to whom the data relate,
(b) for the purpose of complying with a disclosure request under subsection (2) or (3) of this section,
(c) in accordance with a court order,
(d) for the purpose of civil proceedings in any court, or
(e) as may be authorised by the Data Protection Commissioner.
(2) If a member of the Garda Síochána not below the rank of chief superintendent is satisfied that access to any data retained by a service provider in accordance withsection 61(5) is required for the purposes for which the data were retained, that member may request the service provider to disclose the data to the member.
(3) If an officer of the Permanent Defence Force not below the rank of colonel is satisfied that access to any data retained by a service provider in accordance withsection 61(5) is required for the purpose of safeguarding the security of the State, that officer may request the service provider to disclose the data to the officer.
(4) A disclosure request must be made in writing, but in cases of exceptional urgency the request may be made orally (whether by telephone or otherwise) by a person entitled undersubsection (2) or (3) to make the request.
(5) A person who makes a disclosure request orally must confirm the request in writing to the service provider within 24 hours.
(6) A service provider shall comply with a disclosure request made to the service provider.
(7) Where all or part of the period specified in a data retention request coincides with the period during which any of the data specified in the request may, in accordance with law, be processed for purposes other than those specified in the request, this section does not prevent that data from being processed for those other purposes.".

This amendment provides for a prohibition on access to data, except in accordance with those provisions set out in subparagraphs (a) to (e) of subsection (1). It means that telecommunications companies may not allow access to data or access data, except at the request of the person to whom the data relates, or for the purpose of complying with a disclosure request under subsection (2) or (3) of the section, or in compliance with a court order, or for the purpose of civil proceedings, for example, where bills are in dispute, or as may be authorised by the Data Protection Commissioner. In general, material of this nature will be made secret, subject to a number of exceptions.

Amendment agreed to.
Government amendment No. 11:
In page 55, before section 59 and Part 7 of the Bill, to insert the following new section:
"63.—(1) A person who believes that data that relate to the person and that are in the possession of a service provider have been accessed following a disclosure request may apply to the Referee for an investigation into the matter.
(2) If an application is made under this section (other than one appearing to the Referee to be frivolous or vexatious), the Referee shall investigate—
(a) whether a disclosure request was made as alleged in the application, and
(b) if so, whether any provision of section 62 has been contravened in relation to the disclosure request.
(3) If, after investigating the matter, the Referee concludes that a provision ofsection 62 has been contravened in relation to the disclosure request, the Referee shall ——
(a) notify the applicant in writing of that conclusion, and
(b) make a report of the Referee’s findings to the Taoiseach.
(4) In addition, in the circumstances specified insubsection (3), the Referee may, if he or she thinks fit, by order do either or both of the following:
(a) direct the destruction of the relevant data and any copies of the data;
(b) make a recommendation for the payment to the applicant of such sum by way of compensation as may be specified in the order.
(5) If, after investigating the matter, the Referee concludes that no provision ofsection 62 has been contravened, the Referee shall notify the applicant in writing to that effect.
(6) A decision of the Referee under this section is final.
(7) For the purpose of an investigation under this section, the Referee is entitled to access to and has the power to inspect any official documents or records relating to the relevant application.
(8) Any person who was concerned in, or has information relevant to, the making of a disclosure request in respect of which an application is made under this section shall give the Referee, on his or her request, such information relating to the request as is in the person's possession.".

Amendment No. 11 inserts a safeguarding section providing for a referee and judicial oversight function.

Amendment agreed to.
Government amendment No. 12:
In page 55, before section 59 and Part 7 of the Bill, to insert the following new section:
"64.—Section 8 of the Act of 1993 is amended by substituting the following subsections for subsection (1):
‘(1) The President of the High Court shall from time to time after consulting with the Minister invite a person who is a judge of the High Court to undertake (while serving as such a judge) the duties specified in this section andsection 65 of the Criminal Justice (Terrorist Offences) Act 2005 and, if the invitation is accepted, the Government shall designate the judge for the purposes of this Act and the Criminal Justice (Terrorist Offences) Act 2005.
(1A) Subsection (1) does not affect the functions of the Data Protection Commissioner under section 10 of the Data Protection Act 1988.".

This amendment provides that the President of the Circuit Court may invite a judge of the High Court to undertake the functions to which I referred.

Amendment agreed to.
Government amendment No. 13:
In page 55, before section 59 and Part 7 of the Bill, to insert the following new section:
"65.—(1) In addition to the duties assigned under section 8 of the Act of 1993, the designated judge shall—
(a) keep the operation of the provisions of this Part under review,
(b) ascertain whether the Garda Síochána and the Permanent Defence Force are complying with its provisions, and
(c) include, in the report to the Taoiseach under section 8(2) of the Act of 1993, such matters relating to this Part that the designated judge considers appropriate.
(2) For the purpose of carrying out the duties assigned under this section, the designated judge—
(a) has the power to investigate any case in which a disclosure request is made, and
(b) is entitled to access to and has the power to inspect any official documents or records relating to the request.
(3) Any person who was concerned in, or has information relevant to, the preparation or making of a disclosure request shall give the designated judge, on his or her request, such information relating to the request as is in the person's possession.
(4) The designated judge may, if he or she considers it desirable to do so, communicate with the Taoiseach or the Minister concerning disclosure requests and with the Data Protection Commissioner in connection with the Commissioner's functions under the Data Protection Acts 1988 and 2003.".

This amendment gives the judge, among other things, an obligation to keep the operation of the provisions of this Part under review to ascertain whether the Garda Síochána and the Army are complying with its provisions and to include in a report to the Taoiseach, under section 8(2) of the 1993 Act, such matters relating to this Part that the judge considers appropriate.

Amendment agreed to.
SECTION 59.
Government amendment No. 14:
In page 55, line 10, to delete "section 13" and substitute "section 13, or produced under section 14(7),".

This is a technical amendment which provides for inclusion of a reference to section 14(7).

Amendment agreed to.
Section 59, as amended, agreed to.
NEW SECTIONS.
Government amendment No. 15:
In page 55, before section 60, to insert the following new section:
"60.—The Act of 2003 is amended by the insertion of the following section:
‘4A.—It shall be presumed that an issuing state will comply with the requirements of the Framework Decision, unless the contrary is shown.'.".

The purpose of this amendment is to introduce, with regard to European arrest warrants, a presumption that an issuing state will comply with the requirements set out in the framework decision unless the contrary is shown. In other words, it will be presumed that member states of the European Union will comply with the requirements of the framework decision unless somebody shows the contrary.

Is this intended to overcome the main problem?

No, it is a different issue. We have moved on to European arrest warrants. At present, if a person is contesting a European arrest warrant, the question which arises is how does one know that France, for example, will comply with its obligations under the law. This new section will provide for the assumption that the issuing state will comply with its obligations unless it is shown otherwise. We do not want to have debates in court and requirements to produce evidence with regard to what the French authorities, for example, propose to do to comply with the law.

Amendment agreed to.
Government amendment No. 16:
In page 55, before section 60, to insert the following new section:
"61.—The Act of 2003 is amended by the substitution of the following section for section 5:
‘5.—For the purposes of this Act, an offence specified in a European arrest warrant corresponds to an offence under the law of the State, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State.'."

This amendment provides that offences under European arrest warrants are assumed to correspond to an offence under the law of the state where the act or omission which constitutes the offence would, if committed in the state on the date on which the European arrest warrant is issued, constitute an offence under the law of the state.

Amendment agreed to.
Sections 60 to 62, inclusive, agreed to.
SECTION 63.
Government amendment No. 17:
In page 58, between lines 15 and 16, to insert the following new paragraph:
"(b) the substitution of the following subsection for subsection (7):
‘(7) Where, in relation to a person who has been remanded in custody under subsection (3), a European arrest warrant is transmitted to the Central Authority in the State in accordance with section 12—
(a) that person shall be brought before the High Court as soon as may be, and
(b) the European arrest warrant, or a facsimile or true copy thereof, shall be produced to the High Court,
and the High Court shall, if satisfied that the person is the person in respect of whom the European arrest warrant was issued—
(i) remand the person in custody or on bail (and for that purpose the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence), and
(ii) fix a date for the purposes of section 16 (being a date that falls not later than 21 days after the date of the person's arrest).'.".

The amendment amends section 63 by the insertion of a new paragraph (b) after paragraph (a). Its purpose is to substitute a new subsection in section 14 of the Act of 2003. It is a technical amendment which follows from an amendment to section 12 of the European Arrest Warrant Act, which was inserted in the Dáil and clarified the status of warrants received by fax. The amendment to section 12 was inserted by section 62 of this Bill. The amendment before us clarifies that faxed copies received under section 12 are also acceptable in cases where the person has been arrested on grounds of urgency on foot of a Schengen alert.

Amendment agreed to.
Section 63, as amended, agreed to.
Sections 64 to 67, inclusive, agreed to.
SECTION 68.
Government amendment No. 18:
In page 63, to delete lines 10 to 15, and substitute the following:
"21A.—(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state.
(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.".

The revised section 21 provided for by the amendment allows the arrested person to raise a question about the intention of the issuing state and, in this case, to raise a question about the issuing state's intention to proceed with a prosecution. However, amendment No. 18 adds a presumption that there has been compliance by the issuing state with the terms of the framework decision unless the contrary is proved by the party making the claim of non-compliance. In other words, the complainant would have to do more than merely claim that the issuing state has failed to comply with a framework decision. He or she would have to overcome the presumption before the court could examine the claim of non-compliance. One cannot simply make a claim and have an inquiry made into it in the court. One must put before the court some evidence which would persuade it that there is an issue to be inquired into. If one does not bring substantial grounds, the presumption will operate in favour of the requesting state.

Does that mean that it is presumed a decision to convict has been taken and would be proceeded with? It does not include provision for a general consideration that a case will be proceeded with some day in the distant future. I presume there must be proximity.

There must be an intention to prosecute rather than a general desire to engage in a fishing expedition. Having included these protections, we wanted to make clear that it is not sufficient for a person to ask questions in court and list a series of matters which must be proved. The warrant system would collapse if one had to effectively move the judicial officers to Ireland with a view to giving an explanation to the court of what they are doing. The system would not work.

If the arrested person raises a substantial issue, then there can be a court hearing and an appropriate decision based on two contending claims about the intention of the issuing state. However, it is not sufficient to put the matter in issue by raising it and then saying one wants proof of all these things because, otherwise, the European arrest warrant would become unworkable.

Amendment agreed to.
Section 68, as amended, agreed to.
Progress reported; Committee to sit again.
Sitting suspended at 1 p.m. and resumed at2 p.m.