Before we commence, I remind Senators that they may speak only once on Report Stage, except for the proposer of an amendment, who may reply to the discussion on it. Each amendment must be seconded.
Criminal Justice (Terrorist Offences) Bill 2002: Report and Final Stages.
This is a technical amendment to section 38 of the Offences against the State Act 1939. It adds a new subsection (4) to section 38 of the 1939 Act, providing that, for the purposes of the Act, a Special Criminal Court is in existence if it has been established under that section and has at the relevant time not fewer than three members appointed under section 39.
Section 49 of the 1939 Act provides that if two or more Special Criminal Courts are in existence at the time of sending forward a person for trial, the Director of Public Prosecutions must apply to try the case in the court that he selects. The Government established a second Special Criminal Court last December, but the judges have not yet been assigned to it. As such, the court is not able to hear cases. To ensure absolute clarity regarding the operation of this provision, the proposed amendment makes it clear that a court established under the Act is in existence only if it has not fewer than three members appointed to it. In other words, it is only from the time that the second court has at least three judges that the director must make the necessary application under section 49. This amendment is being tabled as a precautionary measure.
This amendment also deals with the Special Criminal Court, amending section 49 of the 1939 Act. One of the factors behind the Government's decision to establish a second Special Criminal Court was the need to avoid any difficulty or challenge on the basis that persons are held on remand for undue periods pending trial. Currently the earliest available date for a hearing in the existing Special Criminal Court is the end of this year. It is to reduce that delay in cases coming to trial that this amendment is tabled to section 49 of the 1939 Act, providing for the transfer of cases from the existing Special Criminal Court to which they have been returned for trial to the newly-established court. The provision will also permit the transfer of cases from the newly-established court back to the existing Special Criminal Court.
Legal advice has been received that there is no existing statutory basis for such transfers. Accordingly, it has been decided to provide such a mechanism by legislation. Therefore, section 49 of the 1939 Act will be amended by being renumbered as section 49(1) and having several new subsections added.
Subsection (2) will provide that a trial to be heard before a Special Criminal Court may be transferred by the court on its own motion or on the application of a triable person or the Director of Public Prosecutions to another Special Criminal Court, though only if the first court decides that it would be in the interests of justice to do so. In other words, it would be open to any interested party, including the defence, the prosecution, or the court itself on its own motion, to seek to have a trial transferred. That will, of course, happen only if it is in the interests of justice so to do.
Subsection (3) will provide that, in deciding whether it is in the interests of justice to transfer a trial, the Special Criminal Court may consider any factors it thinks relevant, including whether the transfer would be in the interests of the expeditious administration of justice and whether it will prejudice the triable person or persons or the prosecution. That means that the court, in examining any application for a transfer of a trial, will have to take into account whether it would result in a speedier hearing of the case and whether it will prejudice either party — the defence or the prosecution.
Subsection (4) will provide that a trial may be transferred under this section, notwithstanding that an order has been made under subsection (1)(e) regarding the triable person or persons. Subsection (1)(e) provides that if two or more Special Criminal Courts are in existence, the DPP can apply to a court to have the trial before it. In simple terms, the fact that the DPP has selected a particular court to hear a trial does not, under this amendment, prejudice the right of an interested party subsequently to apply to have the trial transferred to another court.
Subsection (5) provides that where two or more triable persons are to be tried jointly, the decision of the Special Criminal Court to transfer the trial applies regarding them all. The reason is to avoid the position where a single trial of several defendants being tried jointly can be split and the same cases heard in two different courts so that one court tries one defendant and another court the same case against another.
Subsection (6) provides that subsection (5) does not affect the right of a triable person to apply for a separate trial and, if the application is granted, to apply for a transfer of the trial. This is to safeguard the right of any defendant to apply for a separate trial. That right remains and subsection (5) cannot diminish it in any way.
Subsection (7) provides that the decision of a Special Criminal Court to transfer a trial is final and unappealable. The court must be free to organise its own internal affairs. After all, one of the primary reasons for transfer is the expeditious administration of justice.
Subsection (8) is a technical provision setting out the definition of a triable person.
I am completely dissatisfied with the way in which the Minister of State has brought the amendment to the House. He expressed his intention to establish a second Special Criminal Court some time ago. Why are we seeing the amendment only now, on Report Stage in the Seanad? That is treating this House with contempt, something we have seen several times. It is unacceptable that last minute amendments are being introduced on Report Stage.
The thrust of the amendment is to lend a statutory basis to the Minister's announcement that he is setting up a further Special Criminal Court to speed up trials. I have no problem with that initiative, which I fully support. It is perhaps a sign of the times that we must set up more. I am sure the Minister of State will agree that we would have hoped that circumstances today would be such that we would not need another Special Criminal Court — or any such court. I recall that the Hederman report favoured the winding down of the Special Criminal Court. However, it should continue to exist as long as it is needed.
The Minister is establishing the second court in a very roundabout manner. Perhaps he might clarify why he has gone about it in this way. For example, why will the case have to be transferred from the first court to the second? Why can it not simply be initiated in the second court? The new subsection (3) sets out two criteria for the court to consider. Undoubtedly, the transfer of all cases will meet the first criterion, that of the speedy administration of justice. Since both grounds must be met, I am concerned that the second requirement might give rise to trouble. A person on trial could argue that the transfer of his or her case to the second court, resulting in an earlier trial, would prejudice the defendant. He could argue that his legal team may not be ready for the earlier trial, that his defence has not been fully prepared or that witnesses or evidence may not be available for an earlier trial but would be available for a later trial in the first court. If the Minister were not establishing the second court in such a roundabout way, we would not need to address the hurdles set out in subsection (3).
Given that in subsection (7) the decision of the Special Criminal Court is final and has no avenue for appeal, are we likely to see defendants traipsing off to the European Court of Human Rights to fight their case and ultimately delay the trial here for years? These are pertinent points which should be addressed. We support the initiative of setting up the second Special Criminal Court if it is deemed necessary but the points I have made should be addressed. I repeat my dissatisfaction with the tabling of amendments of this importance on Report Stage. It is a practice which has been creeping into debates over the past year or so and I ask that in future the Minister desist from tabling amendments of major importance on Report Stage.
There was nothing underhand in the way the Government arrived at a decision in this matter. The Government decision was made on 14 December and it made the necessary proclamation under the 1939 Act, as was made in 1972. The basis of the Government decision was that trials are taking an increasingly long time in the Special Criminal Court and it is important that the court do its business expeditiously. I am glad the Senator agrees with me that it is important we have that facility because anyone who has observed the events that have given rise to such controversy in recent times will have noticed that one particular witness has already retracted his story. The ordinary courts are inadequate to secure the effective administration of justice when that level of intimidation of witnesses can exist in any part of Ireland. It is a very serious matter and I am glad the Senator supports the existence of the courts in the current circumstances.
I appreciate the reason the Senator raised the issue of these amendments, which will copperfasten the position of the court, being introduced in the House this morning but the fact remains that the Government has followed all the correct procedures under the 1939 Act in the establishment of this court. A great deal of water has flowed under the legal bridge since 1939 and having examined the matter, the Government decided it was essential, if this second additional court is to function in an efficient way, to move these essentially technical amendments in the House this morning. There is nothing in these amendments that prejudices the rights of any accused person. They are simply designed to facilitate the efficient operation of the court.
Senator Cummins raised the issue of an accused whose legal team was not prepared or whose witnesses were not available. As to whether such a person would be prejudiced through having an earlier trial by virtue of the establishment of the second court, the court would take all those factors into account in coming to a final decision on whether a trial was ready to proceed. That is written into this legislation. The Senator must remember also that justice delayed is justice denied, and there is a public interest in the efficient administration of criminal justice. That is an important deterrent for the offender and it is important that we get on with the business of the courts.
As a matter of pure abstract reasoning, there is nothing improper in endowing a court with the facility of transferring from one panel of judges to another or from one court to another. After all, in the commonest of legal actions, when a litigant seeks to litigate a personal injuries claim in the High Court, there is a list of such claims and the cases are distributed between different judges. Equally, when persons are returned for trial in the Dublin Circuit Criminal Court, a number of judges are available to hear those trials and the accused may not know until the morning of his or her arraignment, or indeed later, which judge will preside at the trial.
In the case of the Special Criminal Court it is important, now that we have two courts, that we have a proper statutory basis for the efficient conduct of business between the two. I take Senator Cummins's point about the new court dealing with new cases but we will shortly be in a position to have two Special Criminal Courts and there is little point having the members of one Bench sitting on their hands while another Bench hears lengthy cases. It is important we put this legal machinery in place so that the fullness of the jurisdiction of the Special Criminal Court can be exercised where appropriate and where the director returns a case to it. That is the basis of these amendments.
Had these amendments been introduced on Committee Stage we would have had an opportunity to tease out this argument but on Report Stage I am prevented from doing that. That is the point I am making. It is grossly unfair to table them on Report Stage.
This amendment relates to the application of the rule of specialty in respect of persons surrendered by Ireland. It entails amendments to section 69. The rule of specialty provides that a person may be proceeded against only in respect of the offence for which he or she was surrendered. Article 27 of the framework decision provides that the rule shall generally apply under the European arrest warrant arrangements except where a member state declares that, as an executing state, it shall not require its application or where any of the exceptions in Article 27 apply. Ireland has not made a declaration on this matter so as an executing state, we apply the specialty rules. Specialty means that a person can only be tried in respect of the offence for which he or she is extradited.
The amendment seeks to ensure that this rule will not operate to prevent the conviction, sentencing and detention by the issuing state of persons surrendered by Ireland in respect of an alternative but lesser offence within the same group of offences, murder and manslaughter being the most notable. To achieve this end, it is necessary to amend the revised section 22, inserted by section 69, to allow that the prohibition on proceedings for other offences — the normal effect of the specialty rule — does not go so far as to prevent a conviction in the issuing state for an alternative but lesser offence where that offence arises from the same facts or circumstances that gave rise to the charge for which the person was surrendered. The amendment has the effect of restoring the provision that applied under the extradition laws in place prior to the European arrest warrant provisions coming into force.
The intention of the amendment is straightforward. We accept the specialty rule but it does not apply in the context of a murder case, for example, where there is a lesser conviction for manslaughter, in the case of assault occasioning serious bodily harm where there is a lesser conviction for common assault or in the case of a burglary or robbery where there is a conviction for theft. That is the effect of the amendment.
This amendment amends the current text of section 23(1) of the European Arrest Warrant Act, as inserted by section 70 of this Bill. Section 23 deals with the question of onward surrender to a third member state of a person surrendered by Ireland to the first member state. It gives effect to Article 28 of the framework decision.
The essential position under this section is that a person must not be surrendered to another member state without the first executing state consenting to that onward surrender. Subsection (1) of section 23 provides a definition of "offence" in respect of which a person may be subject to onward surrender to another member state.
The new definition simplifies the current definition in section 23(1). It provides that an offence for which the person may be surrendered must be an act that was committed before the person surrendered to the issuing state pursuant to the original or European arrest warrant and that it was for an offence at that date under the law of the member state now seeking his or her surrender. In particular, it guards against any possibility of retrospective penalisation. It prevents a position where the third state might try to pursue a person for an act committed before the original surrender but where that act was not an offence at the time of that person's original surrender but was subsequently criminalised.
The essence of this amendment is to provide for the deletion of section 42(c) of the European Arrest Warrant Act. Section 42 sets out one of the grounds for refusal to surrender a wanted person. It provides that a person shall not be surrendered where the DPP or the Attorney General is considering a prosecution for any offence or where proceedings are being brought in the State in respect of the offence set out in the warrant. Neither of these grounds is being changed. However, the director has sought a review of section 42(c) which provides that where there has been a decision to enter a nolle prosequi or a decision not to bring proceedings in respect of the offence in the warrant, the person may not be surrendered. The director is concerned that this could have undesirable results where the decision not to bring proceedings or to halt any proceedings arises due to insufficiency of evidence or lack of evidence in this jurisdiction, although such evidence or witnesses may be available in the state that has requested the person’s surrender.
The existing provision would be workable in a case where all the evidence had been known and available to the Irish authorities when the decision was taken not to bring proceedings or to enter a nolle prosequi. However, a number of circumstances can arise where this is not the case. As a result, an accused person would be able to evade justice in circumstances where there is no good reason, in principle, that he or she should not be surrendered. The most obvious case where this can arise is where there is no evidence available in this jurisdiction or insufficient evidence to warrant the case proceeding. In these circumstances, a decision may be made not to prosecute the person concerned. As currently worded, the paragraph could operate as a bar to a person’s extradition for the same offence to a jurisdiction which has the evidence to deal with that person. The provision, as it stands, also creates a difficulty if a decision is not taken to prosecute here because of a lack of evidence without any knowledge that said evidence is or might be available in another jurisdiction.
It might be useful to refer to some examples of the type of circumstances about which the director is concerned. Offences relating to sex tourism or trafficking in persons are among the most notable of these, as are those relating to torture, war crimes or similar offences arising under international conventions. In such cases, Ireland may have jurisdiction to try the offences but the best evidence and witnesses may be located elsewhere. We must not prevent the effective prosecution of such offences. Amendment No. 5 will ensure that a potential barrier to effective prosecutions will be removed.
In refuting criticisms of the Bill and fending off Opposition amendments, a Minister or Minister of State might often indicate that something does not come within the bounds of a framework decision, that it was not agreed, that their hands are tied or whatever. Was the proposed new section 72 agreed as part of the framework decision? Was a provision of this kind envisaged? It seems that this is a radical departure from that which is central to the Bill, namely, the agreement to transfer requested persons from one jurisdiction to another. The section states that individuals will not be surrendered if the State is considering prosecuting them here. Was that agreed as part of the framework decision?
No, this was a matter which was left to us under Article 4 of the framework decision. It is an option we are allowed to exercise. Having listened to the concerns of the director, the Minister has decided to exercise the option.
The amendment sets out the circumstances in which a person will not be surrendered. Let us consider the example of a person being sought by a third state for a serious crime committed in that jurisdiction which would lead to the imposition of a serious sentence if he or she was subsequently found guilty. The offence committed by the person in this jurisdiction and being examined by the DPP might be much more minor in nature. In such circumstances, justice would surely be best served by the person having to face justice in the jurisdiction in which the more serious crime was committed. Will the Minister of State clarify the position in that regard, particularly as the amendment appears to indicate that in circumstances such as those I have outlined, a person would not be surrendered and perhaps be charged here? If such an individual was subsequently and successfully charged here and given a short sentence, what would be the position as regards him or her having to face charges in the third state?
On the issue of serious offences, express provision is made for that circumstance and a list of such offences is set out in the legislation. Dual criminality does not, therefore, arise in those circumstances. The person must face the music in the jurisdiction where the more serious offence was committed.
This amendment proposes the deletion of section 72, inserting a new section 36(a) in the European Arrest Warrant Act. The current section 36(a) states that Ireland, as an issuing state, will observe Articles 27 and 28 of the framework decision in respect of persons surrendered to this jurisdiction. This would or could require strict observance of Article 27 of the framework decision. That article could be seen as being extremely restrictive in its terms because it permits proceedings, sentencing and detention only in respect of the offence for which the person is surrendered. In the murder-manslaughter example, it could be cited as grounds for preventing the sentencing and detention for manslaughter of a person surrendered on a murder charge. Such an outcome would be unacceptable and would give rise to a position which would not have arisen under the previous regime that held sway under the Extradition Act 1965.
Section 36(a) was initially felt to be useful as an indicator to other states seeking to establish Ireland’s position on specialty and onward surrender. However, the realisation that it could have the effect I have outlined makes its retention more problematical and hence the Minister proposes to delete it.
I compliment the Minister of State and the Minister, Deputy McDowell, on the introduction of this Bill. It is important legislation, particularly in an era when terrorist offences are more common than people would desire. Only earlier this week there was a bombing in Madrid. It is important that this type of framework for co-operation between states is put in place. I am a member of the sub-committee on the Barron report and I am aware that practically no co-operation has been received from the British authorities in respect of the inquiries into the terrible atrocities that occurred here in the early 1970s. Anything which places a greater onus on states, and which does so in a structured way, is welcome.
I compliment the Minister of State on this Bill and on the large volume of other legislation emanating from his Department.
I welcome the legislation which will help us honour our commitments to the EU and the UN. This is an important Bill and my party fully supports it. However, I must refer again to the practice of introducing important amendments on Report Stage. It was clearly evident during the debate that I was unable to discuss matters I wished to tease out. Not allowing Members to tease out amendments such as those tabled this morning is bad practice, particularly as we are only allowed to speak once. If the Minister of State had wanted to introduce special criminal courts — something which had been envisaged for some time — why could the amendments not have been tabled on Committee Stage in order that Members could have debated and, perhaps, improved them? The practice to which I refer, which is creeping in on a regular basis, must be discontinued. Through the Minister of State, I ask that this practice be discontinued and that we be allowed to debate legislation in the manner the public envisages we do, by teasing out issues rather than putting them in at the last minute on Report Stage. I commend the Bill as it was introduced and the officials, while asking that consideration be given to ensuring that nothing of this nature occurs again on Report Stage when amendments are submitted.
I congratulate the Minister of State for getting this Bill through. I know I did not play a part in the proceedings. I just want to add my words to what has been said.
The tradition of having a First Stage, a Second Stage for general debate, a Committee Stage and then a Report Stage is to enable a full debate to take place. What happened regarding this Bill was a pity but it is unusual and there were good reasons on this occasion. It was not the original intention. I congratulate the officials as well as the Minister and Minister of State who were involved. It is pity we have to have such legislation as this, but it is necessary.
When is it proposed to sit again?
Ag 10.30 a.m. Dé Céadaoin seo chugainn, 16 Feabhra 2005.