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

SECTION 69.

Amendment No. 20 is consequential on amendment No. 19 while amendments Nos. 21 and 22 are related and all may be discussed together with the agreement of the House.

Government amendment No. 19:
In page 63, line 28, to delete "if" and substitute "if it is satisfied that".

Amendments Nos. 19 to 22, inclusive, refer to section 22 of the European Arrest Warrants Act. This deals with the rule of specialty, which provides that a person can only be proceeded against in the issuing state for the offences for which he or she was originally surrendered. Amendment No. 22 is the main amendment while the others are of a textual nature. Amendment No. 22 inserts a new subsection (3), which contains a presumption of compliance by the issuing member state with the terms of the framework decision, in this case, that it will respect the provisions relating to specialty.

The presumption will arise where the arrested person claims the issuing state does not intend to respect that rule. The effect of the presumption is to ensure the making of such a claim will not suffice by itself. Something more will have to be offered to support the claim. The presumption of compliance provision takes account of the mutual recognition concept, which lies at the heart of the judicial co-operation provisions of the European treaties and the European arrest warrants system. It represents a working assumption that we are entitled to make about our closest partners in the European Union, namely, that they are acting in a bona fide manner in operating a framework decision. It also clarifies the threshold that needs to be met before further information must be sought from one of those states in support of a European arrest warrant the execution of which is being sought in this State.

The amendments to lines 28, 29 and 36, which are set out in amendments Nos. 19, 20 and 21, are just textual alterations. The insertion of the new subsection (3) will result in a renumbering of the subsequent subsections in section 22 of the European Arrest Warrant Act.

Amendment agreed to.
Government amendment No. 20:
In page 63, line 29, to delete "it is satisfied that".
Amendment agreed to.
Government amendment No. 21:
In page 63, line 36, to delete "the High Court is satisfied that".
Amendment agreed to.
Government amendment No. 22:
In page 63, between lines 40 and 41, to insert the following:
"(3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to—
(a) proceed against him or her,
(b) sentence or detain him or her for a purpose referred to in subsection (2)(a), or
(c) otherwise restrict him or her in his or her personal liberty,
in respect of an offence, unless the contrary is proved.".
Amendment agreed to.

Amendment No. 23 is a Government amendment. Amendment No. 24 is consequential on amendment No. 23 and amendment No. 25 is related. These amendments may be taken together by agreement. Is that agreed? Agreed.

Government amendment No. 23:
In page 64, lines 27 and 28, to delete "Central Authority in the State" and substitute "High Court".

These amendments amend section 69 of the Criminal Justice (Terrorist Offences) Bill. As mentioned with regard to the previous amendment, section 69 refers to section 22 of the European Arrest Warrant Act which deals with the rule of specialty. There is one main amendment in this grouping and the others are of a consequential or textual nature, as with the previous amendment. However, on this occasion the major amendment is amendment No. 25 which inserts a new subsection (6). Subsection (6) deals with the granting of consent by the relevant Irish authority where a departure from the rule of specialty is proposed as provided for in Article 27.4 of the framework decision. Article 27 deals with the rule of specialty and it provides for exceptions where the specialty provisions will not apply, for example, where the executing judicial authority consents to requests from the issuing state for other prosecutions. The circumstances under which the executing judicial authority must give its consent are set out in Article 27.4.

Ireland made a statement at the time of adopting the framework decision to the effect that for the purpose of Articles 27.4 and 28.3, requests shall be submitted to and consent given by the central authority, that is by the Minister rather than by the court. That statement is reflected in the current text of the European Arrest Warrant Act. However, it is now proposed that the question of consent should be dealt with by the High Court, which is the executing judicial authority. The Attorney General's advice is that legally this is the more prudent way to proceed having regard to the explicit terms of the framework decision which provides that this is a matter for the executing judicial authority. I mentioned in the House during our previous discussion that the civil law concept of what is a judicial authority and the common law concept are somewhat different. However, for the purposes of safety, the Office of the Attorney General advises us that it is better to vest this function not in the Minister, but in the courts.

A new subsection 22(6) is therefore being inserted in which the High Court is given the authority to consent. The amendment to lines 27 and 28, namely, amendment No. 23, is consequential on the new amendment and the new subsection (7) confirms that consent to be given under subsection (6) shall be withheld where surrender would be refused on the general safeguard grounds in Part 3 of the European Arrest Warrant Act. Amendment No. 24 is a textual amendment.

The numbering of subsections (6) and (7) refers to the numbering in the Bill before the House. These numbers will change as a result of a new subsection (3) already having been added to section 22 of the European Arrest Warrant Act by amendment No. 22, which we have just discussed. Therefore, the new subsections (6) and (7) being added by amendment No. 25 will, as a result of that earlier amendment, become subsections (7) and (8) respectively.

Amendment agreed to.
Government amendment No. 24:
In page 65, line 21, to delete "consent."." and substitute "consent.".
Amendment agreed to.
Government amendment No. 25:
In page 65, between lines 21 and 22, to insert the following:
"(6) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to—
(a) proceedings being brought against the person in the issuing state for an offence,
(b) the imposition in the issuing state of a penalty, including a penalty consisting of a restriction of the person’s liberty, in respect of an offence, or
(c) proceedings being brought against, or the detention of, the person in the issuing state for the purpose of executing a sentence or order of detention in respect of an offence, upon receiving a request in writing from the issuing state in that behalf.
(7) The High Court shall not give its consent under subsection (6) if the offence concerned is an offence for which a person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this Act.".
Amendment agreed to.
Section 69, as amended, agreed to.
SECTION 70.

Amendment No. 26 is a Government amendment. Amendment No. 27 is consequential and amendments Nos. 28 and 29 are related. Amendments Nos. 26 to 29, inclusive, will be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 26:
In page 65, line 36, to delete "if" and substitute "if it is satisfied that".

The main purpose is to insert a new subsection (3) in section 23 of the 2003 Act. Section 23 deals with requests for the surrender of persons by the issuing state to other member states. Section 23 gives effect to Article 28 of the framework decision. That article deals with the question of a person being surrendered to another member state, other than the one to which he or she was originally first surrendered.

Article 29 inserts a new subsection (3). It contains a presumption of compliance by the issuing member state within the terms of the framework directive in regard to onward surrender to another member state. It therefore covers the same issues as we have already discussed in regard to the previous amendment on this issue.

Amendments Nos. 26 to 28, inclusive, are textual. The insertion of this new subsection (3), as in the other cases, will result in the renumbering of the remaining subsections in section 23.

Amendment agreed to.
Government amendment No. 27:
In page 65, line 37, to delete "it is satisfied that".
Amendment agreed to.
Government amendment No. 28:
In page 65, line 43, to delete "the High Court is satisfied that".
Amendment agreed to.
Government amendment No. 29:
In page 65, between lines 46 and 47, to insert the following:
"(3) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to surrender him or her to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State in respect of an offence, unless the contrary is proved.".
Amendment agreed to.

Amendment No. 30 is a Government amendment. Amendment No. 32 is related and No. 31 is consequential on No. 32. Amendments Nos. 30 to 32, inclusive, will be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 30:
In page 66, lines 5 and 6, to delete "Central Authority in the State" and substitute "High Court".

The main purpose is to insert a new subsection, subsection (5) in section 23 of the European Arrest Warrant Act 2003. As mentioned in regard to the previous group of amendments, section 23 deals with requests for the surrender of persons by the issuing state to other member states. Section 23 gives effect to Article 28 of the framework decision and that article deals with the question of a person being surrendered on to another member state, other than the one to which he or she was originally first surrendered.

Amendment No. 32 inserts a new subsection (5) dealing with the question of consent by the Irish authorities to the departure from the general rule set out in Article 28. The exceptions to the general rule include situations covered under Article 28(3) where the executing judicial authority consents to requests from the issuing state for onwards surrender to another member state. The circumstances under which the executing judicial authority must give its consent are set out in Article 28.3. The issues involved here are the same as those under section 69, which we have just considered. Members will recall that I mentioned Ireland had made a statement at the time of the adoption of the framework decision to the effect that for the purpose of Article 28.3, the central authority was the consenting authority.

However, it is now proposed for the reasons to which I referred earlier, to accept the advice of the Attorney General's office and to transfer that consenting jurisdiction to the High Court. A new subsection 23(5) is therefore being added in which the High Court is given the authority to consent. The amendments to lines 5 and 6 on page 66 are a consequence of the new subsection (5). The new subsection (6) confirms that the consent to be given under subsection (5) shall be withheld where surrender would be refused on the general safeguard grounds provided in Part 3 of the European Arrest Warrant Act. The amendment on line 48 of page 66 which is embodied in amendment No. 31 is purely textual and the numbering of the new subsections (5) and (6) in section 23 of the European Arrest Warrant Act is correct since amendment No. 29 inserting a new subsection (3) has already been accepted by the House.

Amendment agreed to.

There is a correction to amendment No. 31. A full stop should appear after the word "consent". I instruct that the alteration be made.

Government amendment No. 31:
In page 66, line 48, to delete "consent."." and substitute "consent.".
Amendment agreed to.
Government amendment No. 32:
In page 66, after line 48, to insert the following:
"(5) The High Court may, in relation to a person who has been surrendered to an issuing state under this Act, consent to the person being surrendered by the issuing state to a Member State pursuant to a European arrest warrant issued by a judicial authority in that Member State, upon receiving a request in writing from the issuing state in that behalf.
(6) The High Court shall not give its consent under subsection (5) if the offence concerned is an offence for which a person could not by virtue of Part 3 or the Framework Decision (including the recitals thereto) be surrendered under this Act.".
Amendment agreed to.
Section 70, as amended, agreed to.
SECTION 71.

Amendment No. 33 is a Government amendment. Amendment No. 34 is consequential and amendments Nos. 35 and 36 are related. Amendments Nos. 33 to 36, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 33:
In page 67, line 4, to delete "if" and substitute "if it is satisfied that".

The purpose of these amendments is to amend section 24 of the European Arrest Warrant Act. Section 24 gives effect to Article 28.4 of the framework decision. It deals with situations where the person may be extradited by the issuing state to a third state, that is, to a non-EU state.

Similar to previous sections, a presumption is being added that the issuing state has complied with the framework decision in regard to onward extradition to a non-EU state, unless the contrary is proved. That is provided for in amendment No. 36. As in the previous situations, this amendment indicates the threshold to be met before a claim by the arrested person that there is non-compliance by the issuing member state is investigated. The amendments to lines 4, 5 and 11 of page 67, that is, amendments Nos. 33, 34 and 35, are textual.

Amendment No. 36 adds a new subsection (2) to section 24 of the European Arrest Warrant Act. Subsequent subsections in section 24 will be renumbered as a result.

I wish to inform the House that I propose to introduce further amendments in regard to the European Arrest Warrant Act on Report Stage. I expect to have four amendments, two of which will relate to the application of the rule of specialty. That rule provides that persons may, after surrender, be proceeded against in the issuing state only for the offences in respect of which surrender was granted. However, it has long been practice in extradition law that persons may be convicted, sentenced and detained in respect of alternative but lesser offences that arise out of the same facts and circumstances as gave rise to the original charge. The classic example in our law would be murder. The murder-manslaughter scenario is the most notable example of this situation. If somebody were extradited to Ireland on a murder charge it would not be a breach of the rule of specialty if he or she were convicted here of manslaughter because the greater is encompassed in the lesser. The amendments will relate to sections 69 and 72 of the Bill before the House.

At the request of the Director of Public Prosecutions, I have also examined section 42 of the European Arrest Warrant Act and will be proposing the deletion of section 42(c). I will also be proposing an amendment to section 70 of the Bill, clarifying section 23(1) of the European Arrest Warrant Act which is being inserted by section 70. This clarification relates to situations where a person is being sought by a third member state. In those cases, Ireland, as the first executing state is required to consent to that onward surrender. Subsection (1) of section 23 defines the offence for which the person may be subject to that further surrender. The new text that I will be proposing will simplify and clarify that definition. I understand that, in keeping with normal procedure in this House, the Bill will not be reprinted before Report Stage which will be taken on Thursday so the new amendments will refer to line numbers, etc., as set out in the Bill now before the House.

I also wish to inform the House that I will be proposing an amendment to section 38 of the Offences against the State Act 1939, which is a very simple amendment. Section 49 of the Offences against the State Act 1939 provides that if two or more Special Criminal Courts are in existence at the time of the sending forward of a person for trial, the Director of Public Prosecutions must apply to try the case in the court he selects. In order to ensure absolute clarity as regards the operation of this provision the proposed amendment will make it clear that a court established under the Act is only in existence if not fewer than three members are appointed to it. This will be in addition to an amendment to section 49 of the Offences against the State Act 1939 which I also intend to introduce. Senators will recall that I indicated last Thursday my intention to introduce the latter amendment. The amendment will provide for the transfer of cases between the existing Special Criminal Courts and the Special Criminal Court, the establishment of which the Government approved on 14 December last.

The Minister mentioned his intention to table a number of Report Stage amendments. When will these amendments be circulated? It is essential that we get an opportunity to view these amendments as early as possible to allow us to deliberate on them. There is no point in coming in on Thursday if we have not had an opportunity to examine the amendments in detail. The Minister referred to some amendments today and on the previous occasion on which we discussed the Bill. The issues upon which we are deliberating are serious ones, especially those in regard to the courts.

I totally agree with Senator Cummins. I regret that they have not been circulated so far. However, I am doing my best and I will get them to Senators tomorrow afternoon so they will not be presented with them on Thursday for the first time.

I hope that while the Minister refers to tomorrow afternoon, the House will have the amendments early in the afternoon so we will have an opportunity to examine them and carry out some research.

Amendment agreed to.
Government amendment No. 34:
In page 67, line 5, to delete "it is satisfied that".
Amendment agreed to.
Government amendment No. 35:
In page 67, line 11, to delete "the High Court believes upon reasonable grounds that".
Amendment agreed to.
Government amendment No. 36:
In page 67, between lines 13 and 14, to insert the following:
"(2) It shall be presumed that, in relation to a person to whom a European arrest warrant applies, the issuing state does not intend to extradite him or her to a third country, unless the contrary is proved.".
Amendment agreed to.
Section 71, as amended, agreed to.
Section 72 agreed to.
Schedule 1 agreed to.
SCHEDULE 2.

I move amendment No. 37:

In page 83, line 9, to delete "terrorist-inter” and substitute “terrorist-linked”.

This is a technical amendment which is intended to correct an error in the Bill.

This is obviously something which someone inserted to see if we were all awake. The word "inter" will be removed because it is a printing error. It is not something to which any of us have put our minds up to now. Therefore, a formal amendment is not necessary. I am grateful to Senator Tuffy for trying to work out what it might have been about and for advancing the proposition that it must have been terrorist-linked. However, I am sorry to say that is not the case. Rather, this is a totally haphazard printer's error. The phrase should be "terrorist activity" rather than "terrorist-linked activity".

Amendment, by leave, withdrawn.

I move amendment No. 38:

In page 83, to delete line 18.

The offences listed in Schedule 2 are to be regarded as terrorist offences and we agree that most of them are acceptable as such, for example, those related to explosives, murder and so on. However, we feel that the offence of assault causing harm is a lesser offence in comparison, having considered the fact that assault causing serious harm will be included. Therefore, we feel it is overboard to include the offence of assault causing harm in the definition of terrorism and think it should be deleted as this amendment proposes.

The effect of this amendment would be to delete from Schedule 2 the offence of assault causing harm under section 3 of the Non-Fatal Offences against the Person Act 1997. Schedule 2 sets out acts which, combined with the requisite intention, give rise to terrorist offences. The intent would have to be proven in order to render the offences into terrorist offences, which is the crucial element. The issue is not so much the consequence of the act but rather the intent behind its commission.

One could argue that it is not appropriate to remove the offence from the Schedule because assault occasioning harm need not be an injury of a permanent character, for example, maiming or disfigurement, but could include a blow to the head which rendered someone unconscious. It can be seen that the offence can be a serious one and the question is whether it should be excluded from the Bill.

I remind Senators that in order to qualify as a terrorist offence under the Bill, a court must be satisfied that a terrorist intent was involved. In that context, would the Senator consider that one could render someone unconscious and not leave any permanent marks and that it could still be a terrorist offence if it was carried out for a terrorist purpose?

Amendment, by leave, withdrawn.
Schedule 2 agree to.
Schedules 3 to 7, inclusive, agreed to.
TITLE.
Government amendment No. 39:
In page 7, lines 9 and 10, to delete "AND TO MAKE PROVISION FOR RELATED MATTERS" and substitute "AND THE EUROPEAN ARREST WARRANT ACT 2003, AND TO MAKE PROVISION FOR RELATED MATTERS, INCLUDING THE RETENTION OF COMMUNICATIONS DATA".

There are two reasons the Long Title is being amended. First, it will remove any doubt as to whether the proposed Part 7 of the Bill, which deals with data retention, comes within the scope of the Bill. Access by the Garda to retain data is important in investigating terrorism and protecting the security of the State but it is also used for investigating non-terrorist offences and, because of this wider application, the Attorney General considered it prudent to extend the Long Title to include a reference to data retention. Following consultations with the Attorney General it is also considered prudent in the interests of clarity to include a reference to the European Arrest Warrant Act in the Long Title. A number of amendments were made to that Act in the Lower House, more amendments have been tabled for debate today and still more for debate on Report Stage.

While the amendments are technical and procedural in nature, given that their number and the fact that the arrest warrant provisions form a distinct part of the Bill, I have decided to err on the side of caution and propose specific reference to the European Arrest Warrant Act in the Long Title.

Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

On Thursday.

Report Stage ordered for Thursday, 10 February 2005.
Sitting suspended at 3.45 p.m. and resumed at 4.30 p.m.