Before we commence, I remind Senators that a Member may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. On Report Stage each amendment must be seconded. I welcome the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Fahey.
Criminal Justice (Mutual Assistance) Bill 2005: Report and Final Stages.
I move amendment No. 1:
In page 19, line 31, after "request;" to insert "and
(f) an account held by another person in any other circumstances on behalf of, or representing in whole or in part the property of, the first-mentioned person”.
The Labour Party has proposed this amendment because it must be made clear that all forms of accounts are covered, whether they are held by a person or someone else on his or her behalf. The existing wording will not cover all situations. On Committee Stage, the Minister for Justice, Equality and Law Reform said he would consider the amendment for Report Stage.
On Committee Stage, the Minister for Justice, Equality and Law Reform indicated that some aspects of the amendment merited inclusion. He asked Senators for time to consider the wording in conjunction with the Parliamentary Counsel and to consult the Garda authorities and the banks on the proposal's operational and practical implementation.
The amendment would have the effect of broadening the definition of "account". Having consulted with the relevant parties, the Minister is of the view that inclusion of the proposed amendment would place too heavy a burden on the banks and render the provision inoperable. The Irish Bankers Federation indicated that the effect of the proposed amendment would be that all trust accounts, nominee company and trust company accounts would be unencompassed by the proposed addition to the definition of "account".
While the names of all beneficiaries of trust accounts are retained by the banks in files, names of beneficiaries would not normally be on the account. As a result, in order to operate this provision, the banks would have to undertake a manual search which would be an unwieldy and virtually impossible task. It may also be difficult, and even impossible, in some circumstances for a bank to ascertain whether an account is held in whole or part by a person for someone else. It would be an unfair burden to put on the banks to uncover detail regarding, for example, an account beneficiary in a large trawling exercise.
The amendment goes beyond what is covered in the terms of the protocol of the Convention on Mutual Assistance in Criminal Matters between the Member States of the EU 2000. For these reasons, Senator Tuffy will appreciate it is impossible to accept the amendment.
Amendments Nos. 2, 4 and 16 are cognate and may be discussed together by agreement.
I move amendment No. 2:
In page 22, between lines 31 and 32, to insert the following:
"(2) An application under this section shall be heard otherwise than in public.".
On Committee Stage, the Minister said he would consider the amendment for Report Stage.
On Committee Stage, the Minister indicated that he would revert to the Parliamentary Counsel on these amendments. Their purpose is to permit applications for account information and account monitoring orders for criminal investigations in the State or an EU member state, together with applications from EU member states for orders for freezing property or evidence to be made in private. A precedent exists for such provision with regard to restraint orders in the Criminal Justice Act 1994.
Since then, however, the Attorney General has advised against including such provision for such warrants in the Criminal Justice Bill 2004. The Attorney General was specifically anxious that careful consideration be given to the circumstances in which limits would be put on the issue of search warrants. Without specific provision to the contrary, the issue is left open under current wording. The application could be made in public or in private. By including specific provisions, it would cast doubt on the ability to hear applications in private in other circumstances where no such provision was included. The wording as it stands allows for applications to be made in either private or public.
In light of the views of the Attorney General on this issue, in the context of such search warrants where the same principle applies, it is, therefore, not intended in the interests of legal certainty and consistency to accept the proposed amendments.
Amendments Nos. 3 and 5 are cognate and amendment No. 15 is related, therefore, amendments Nos. 3, 5 and 15 may be discussed together by agreement.
I move amendment No. 3:
In page 23, to delete line 13.
The concern is over the illogical phrasing in section 12 which provides that an order of the District Court "has effect as if it were an order of the District Court". For that reason the phrasing should be deleted.
On Committee Stage, the Minister indicated it was unlikely he would be in a position to accept these amendments. He consulted the Attorney General on them. The effect of amendments Nos. 3 and 5 would be to delete the provision that an account information or account monitoring order made for criminal investigations in the State or an EU member state would be effective as if it were an order of the District Court.
The effect of the declaration of amendment No. 15 would be to delete the reference to an order made for the freezing of evidence to have effect if it were an order of the High Court. The legal advice received on the matter is that it is an important provision for any of these orders to have effect as if it were an order of the District Court or the High Court. This means that it would be an offence, for which a sanction would apply, not to comply with the order.
The orders concerned could be considered to impinge on people's rights and it is not appropriate that such powers should be granted to an individual judge operating without the backing of the court. The order must be made by the court and not by an individual. The provision, as it stands in the Bill, emphasises the judicial nature of this function and ensures that the judge concerned has no doubt that he or she is acting judicially when such an order is made. The reference to the District Court and the High Court in these provisions is important and, therefore, I do not propose to accept the amendment.
Amendments Nos. 6 to 14, inclusive, are related and will be discussed together by agreement.
I move amendment No. 6:
In page 30, to delete lines 44 to 46, and in page 31, to delete lines 1 to 3.
We believe the provision as it stands is of dubious constitutionality. It allows the Minister to change the law by the executive act of making a declaration. The Minister should come up with a more constitutional way of achieving his objective. He said on Committee Stage that he would consult the Attorney General on this issue.
I second the amendment. Amendments Nos. 7, 8 and 11 relate to section 8 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. There is an important safeguard in that Act that allows a designated judge of the High Court to investigate authorisations and inspect any official documents relating to an authorisation or its application. The Minister said that he would consider this. It is a safeguard that should be applied to this Bill as it was in the 1993 Act.
I did not mention the other Labour Party amendments. Amendment No. 9 was to be examined by the Minister following Committee Stage. At the very least, legislation should limit the ability of another state to use the information it collects. Under the provisions, it should have to adhere to the wording of the convention. At present, the Bill allows for more than the convention it is supposed to implement. We are trying to be specific in amendment No. 9. The Minister of State might explain how the Government amendments deal with that.
Amendment No. 13 covers an area that the Minister said he would consider. We are trying to provide a defence for communications companies which might not be able to access the equipment in another country but which can use their best endeavours to do so.
Amendments Nos. 6 to 14, inclusive, relate to interception provisions. Amendments Nos. 7, 8 and 11 were raised by Senator Cummins and Senator Brian Hayes on Committee Stage. Amendments Nos. 7 and 11 would bring all documentation on notification of member states of interceptions or applications to member states for interceptions within the terms of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. The amendments sought to allow a review of the interception provisions of this Bill by a judge of the High Court, as is provided for in section 8 of the 1993 Act. At the time the Minister said he would review if it was possible to agree with what was being sought having regard to the provisions of the EU convention.
Having considered the matter further, in consultation with the Office of the Attorney General, the Minister is of the view that bringing authorisations under such provisions within the scope of review by a judge of the High Court, as provided for in section 8 of the 1993 Act, would be not just a useful but also a desirable addition for the purpose of independent oversight of all interception. Towards that end the official amendments Nos. 10, 12 and 14 have been brought forward to meet the concerns expressed by the Senator.
Amendment No. 14 also extends the provision in section 9 of the 1993 Act to the regime encompassed by this Bill. Under section 9 of the 1993 Act there is a provision for a companies complaints referee, who will be a Circuit Court or District Court judge or a barrister or solicitor of ten years' standing appointed by the Taoiseach. He or she may review complaints from individuals about certain aspects of the Act. The oversights envisaged, however, will not obviously, implicitly or explicitly, allow the designated judge to enjoy any degree of extra-territoriality. The oversight rule would be confined solely to decisions and actions taken domestically by the Minister or the Garda. It would not, for example, extend to non-national decision making. Including this provision would not conflict with the interception provisions of the EU convention. I am grateful to Senators Brian Hayes and Cummins for making these proposals.
Amendment No. 8 was also proposed on Committee Stage by Senator Cummins. The amendment seeks to provide that the interception being carried out here by another member state where technical assistance from Ireland is not required will be deemed to be an authorisation within the terms of the Interception of Postal Packages and Telecommunications Messages (Regulations) Act 1993 and the directions which issued to a telecommunications provider should also apply to these interceptions. Section 26(3) provides that if an authorisation is given under section 2 of the 1993 Act, the Minister will agree to allow an interception not requiring technical assistance to be carried out or continued. As technical assistance from the State is not required in this instance, the effect of an interception under section 26(1)(c), the question of the issue of instructions to authorised undertakings under section 110 of the Postal and Telecommunications Services Act 1993 does not arise. The amendment sought, therefore, is unnecessary as the point being made is already catered for in the Bill.
Amendments Nos. 6, 9 and 13 on the part of the Labour Party were previously tabled on Committee Stage. On amendment No. 6 the purpose of this provision is to give effect to Articles 18.6 and 18.7 of the 2000 convention. The provisions included the option of Ireland making a declaration to the EU at the time of ratification of the EU mutual assistance convention that we are unable to provide for immediate interception and transmission of telecommunications to EU member states. In that event, Ireland would be obliged to intercept, record and subsequently transmit telecommunications recordings to the requesting member state if we would make an interception in a similar domestic context. This will be done when the information provided in Articles 18(3) and 18(4) of the 2000 convention is presented by the requesting state. This information relates to issues such as from whom the request is received, the conduct being investigated and the desired duration of the interception etc. The possibility of making the declaration provided for in Article 18(17) is a safeguard and enables us to review the capacity of the telecommunications system we have in operation, prior to ratification.
On Committee Stage, Senator Tuffy was concerned the provision would allow the Minister to change the law by an executive act. This is not the case. Ireland would be obliged to advise the Oireachtas at the time of ratification of any proposed declaration and in the event of any subsequent amendment to that declaration. The Attorney General's office supports this view and for these reasons I cannot support the proposed deletion.
Amendment No. 9, if accepted, would have the effect of Ireland legislating to provide that information obtained prior to the Minister agreeing to an interception where technical assistance from Ireland is not required would not be used except in the specific conditions provided for in Articles 2(4)(b)(ii) of the convention. Ireland cannot legislate to tell other countries what they can or cannot do. We have covered this issue in subsection (5), which provides that the material already intercepted in a number of circumstances, including where an authorisation is not subsequently given, may not be used or may be used under specified conditions which will be outlined by the Minister in writing. These conditions will obviously include, but need not be limited to, those in Article 2(4)(b)(ii) of the convention. The point raised is thus already covered in the Bill and, therefore, the amendment is unnecessary.
Amendment No. 13 requires authorised undertakings in the State to use their best endeavours to access interception equipment in a member state to intercept messages which cannot be directly intercepted in the State. Section 27(2)(d) provides that where the authorised undertaking has received directions to facilitate, and it can facilitate interception by accessing interception equipment in a member state, it will do so by accessing the equipment. To accede to the proposed amendment would run contrary to the provisions in section 27(2)(d) and for that reason I cannot accept it.
Amendments Nos. 10 and 12, which relate to section 26 are merely technical. The first, to section 26(3), replaces the word "allow" with "authorise". This is for the sake of clarity and consistency as "authorise" and "authorisation" are used throughout the provisions. Likewise, the second minor amendment to section 26(4) does not change the meaning but is a clarification and tidying up of the language used.
In summary, amendments Nos. 10, 12 and 14 cover the issues raised in amendments Nos. 7 and 11. I do not intend to accept amendments Nos. 6, 8, 9 and 13.
Amendments Nos. 17, 18 and 19 are cognate and will be discussed together. Is that agreed? Agreed.
I move amendment No. 17:
In page 49, line 41, after "admissible" insert ", provided that no statement insofar as it consists of or includes a statement controverted by the defendant in proceedings shall be admissible under this section unless the defendant was afforded the opportunity to exercise the rights referred to in subsection (10)(a)”.
The section purports to make all statements admissible and a court can simply take into account whether a cross-examination was allowed. This is inappropriate as the right to cross-examine is a constitutional right as seen in a previous example re Haughey. Controversial statements must be inadmissible unless there is a right to cross-examine. We raised this issue on Committee Stage.
The purpose of amendment No. 18 is to rectify a legal error in the section. Whether the section applies is a legal matter which the court should decide. It is not a factual matter which depends on the existence of reasonable grounds for belief. The section does not specifically afford the defendant a reasonable time following service to arrange for travel to the other state. The Minister objected to 14 days in the previous wording of our amendment, but this has been deleted. I would like to hear his comments on the amendments.
I second the amendment. I support the right to cross-examine and am interested in hearing what the Minister has to say on that.
Amendment No. 17 was raised on Committee Stage and provides that a statement of evidence of a witness taken in accordance with a letter of request and certified by or on behalf of the court or tribunal is admissible as evidence of any fact stated therein if such oral evidence would be admissible. As the Minister indicated on Committee Stage, subsection (10) of this section provides for a court to have discretion to decide if such evidence is admissible and allows the court, when making such a decision, to consider whether the law of the state concerned allowed for legal representation and cross-examination of the person, and also to consider any other aspect in which the taking of evidence may differ from the procedures used in Ireland. The proposed amendment is therefore superfluous and repetitive. As the Bill stands, the court already has discretion to exclude evidence under section 10 and as the Minister indicated on Committee Stage, it is not proposed to accept this amendment.
With regard to amendments Nos. 18 and 19, I agreed it is correct that a judge should be satisfied that the section applies to a request from another state for evidence rather than that it should appear to the judge that the request relates to this section. The judge cannot, however, be satisfied before issuing a warrant for evidence that a warrant is necessary for entry or that the occupier has not consented or is unlikely to consent to entry. It is in the order that the judge be reasonably satisfied with regard to these issues. For that reason, I cannot accept these amendments. I thank the Senators for bringing them forward.
I move amendment No. 18:
In page 60, to delete lines 6 and 7 and substitute the following:
"(8) If, on the application, the judge is satisfied that this section applies to the request, and it appears to him or her that there are reasonable grounds for believing—".
I move amendment No. 19:
In page 62, to delete lines 37 and 38 and substitute the following:
"(9) If, on the application, the judge is satisfied that this section applies to the request, and it appears to him or her that there are reasonable grounds for believing—".
I move amendment No. 20:
In page 71, between lines 25 and 26, to insert the following:
"(13) Where a document served pursuant to this section directs or requests the person to whom it is addressed to attend a hearing in a designated state, the document shall be served a reasonable time prior to the hearing in the designated state concerned.".
As it stands, this section does not specifically afford the defendant time following service to arrange for travel to the other state. The Minister objected to the inclusion of 14 days in the previous wording and therefore we have tabled the amendment again but deleted reference to the 14 days.
An amendment similar to this one was tabled on Committee Stage. It requires other member states to serve documents in this country requiring persons to attend hearings in another state within a reasonable time prior to the hearing. As the Minister indicated on Committee Stage, it would not be prudent or correct of us to impose such a provision on other states. The onus is on other states to serve documents in good time if they require a person to attend there. It is in a state's interest to ensure that documents are served within a reasonable time period prior to the hearing. That goes without saying. I consider the amendment to be superfluous in this regard as it would entail placing an onus in Irish law on other states. That is not appropriate and for that reason the proposed amendment cannot be accepted.
I move amendment No. 21:
In page 80, to delete lines 1 to 4.
We propose the deletion of subsection (4) because it is somewhat meaningless. It appears to be designed to discourage judges from operating the section. We raised this issue on Committee Stage also. I would like to hear the Minister of State's comments.
Senators raised this issue on Committee Stage and the Minister indicated then that the subsection Senators wish to delete is an important provision permitting the courts to refuse to grant measures where they do not have jurisdiction. It is a provision that has featured previously in legislation dealing with orders. As has been previously indicated, the same wording may be found in a civil proceedings context at section 13(2) of the Jurisdiction of Courts and Enforcement of Judgments Act of 1998. I do not propose to accept this amendment as this provision is not only a useful but an essential one. It directs the court to have regard as to whether the order being sought by virtue of the jurisdiction it has is a reasonable order to make. It is important that the court has that ability as orders can be sought by the Minister or the Garda and it is not sufficient to presume that the making of the application in itself constitutes an adequate examination of the powers of the court in this regard. The presiding judge is the only person capable of making a decision as to the extent of the legal powers he or she has with regard to any application.
I appreciate that the wording of this particular provision is a little unwieldy and the possibility of rewording it was examined. However, the wording as it currently stands in section 83 follows on from the Jurisdiction of Courts and Enforcement of Judgments Act of 1998. The advice from the Attorney General's office is that it would be inadvisable to break from precedent in this instance and a redrafting could have the effect of omissions by means of inadvertence. For the reasons outlined, therefore, I cannot accept the proposed amendment.
I move amendment No. 22:
In page 81, between lines 21 and 22, to insert the following:
"(2) The amendments effected by subsection (1) shall not affect any order made prior to the commencement of this section, but on or after the commencement of this section, the court may make such amendment to such order, or such further order, as may be appropriate in the circumstances.".
We tabled this amendment because the section fails to make clear the effect, for example, of the new wording on restraint orders that have already been made. We are trying to address that issue.
This amendment was proposed on Committee Stage. The Minister indicated then that he did not consider that it served any purpose and that he did not propose to accept it, subject to further consultation with the Parliamentary Counsel. The proposed amendment appears to attempt to ensure that any order made under the 1994 Act prior to the commencement of the section is not nullified in any way by amendments made under this section. Such provision is not necessary as legislation is not retrospective and any order made lawfully under the Act prior to the commencement of this section cannot be altered by this section. As has been previously indicated, the provisions of this section amending the 1994 Act do not on the whole refer to orders. Most of the proposed amendments deal with terminology and the clarification of terms. Subsection (h), which clarifies the empowerment under the section of a member of the gardaí to have access or take away a document, is to be construed as authorisation to do so. Subsection (e) clarifies that orders under the section may relate to property in an EU member state. The changing of the name “restraint order” to “freezing order” will not affect the validity of any restraint order made lawfully under the 1994 Act. The change in terminology is simply to bring our terms into line with those in the relevant international instruments. I can now confirm, following further consultation with the Parliamentary Counsel, that the proposed amendment does not serve any purpose and for this reason I do not propose to accept it.
I thank the Senators who have contributed to this constructive debate on the Bill. This is important legislation which will strengthen our hand in the fight against terrorism and transnational crime. Effective co-operation among the member states of the European Union and among states worldwide is of increased importance in recent times. We must ensure that our international boundaries cannot be used by criminals to their advantage and that international co-operation among states, both in terms of detection and prosecution of criminals, is maximised. This Bill does that.
I am pleased by the positive way in which the Bill has been received by Senators in its passage through the House and thank all those who contributed to the debate and who proposed amendments. I look forward to an equally interesting debate in the Dáil and the enactment of the Bill in the very near future. I also thank staff in the Department who have carried out such significant work in respect of this legislation, the Acting Chairman and staff of the House.
I compliment the Minister on bringing forward this legislation. Any measure that helps combat terrorism will be supported by my party. We accept that a number of technical items were addressed on Committee Stage and compliment the Minister on taking these on board. As the Bill is very technical, I am sure Department officials had a difficult time dealing with it and I compliment them on their diligent work. I hope the Bill progresses through the other House as speedily as it has progressed through this one.
I thank the Minister and Minister of State and their staff for the debate on this Bill. Certain issues still require further debate and can be debated when the Bill goes through the Dáil. I support the legislation in principle but have concerns about its provisions. Other legislation relating to the keeping of telephone records by companies, which could be asked to provide this information to the Garda Síochána, was dealt with by the House last year. Many of these provisions are being included in different pieces of legislation and are coming into force by stealth. As Senator Cummins noted, this Bill is very technical. I am not criticising the Government because I realise these provisions relate to Ireland's obligations as an EU member.
In respect of the intercepting of data, legislation should possibly be consolidated and safeguards introduced to protect people's rights. We should examine the legislation in its entirety and then ensure that our citizens are protected. I withdrew an amendment of mine when the Minister of State explained that it was not possible to place this kind of requirement on another member state. However, this legislation, in conjunction with the legislation in other countries, gives other states powers in respect of our citizens which are quite over-reaching. We need certain powers to deal with crime but we also need to protect our citizens' rights with regard to data protection and other matters.
The Minister should examine the issue in its entirety, consult with the public and interested parties, such as communications companies, and produce legislation that consolidates existing legislation into a single Bill, although I concede that this might not be possible. The issue should be addressed in a comprehensive way and protections with which our society agrees should be introduced.
I understand that people in the US are more sensitive about these issues than people in this country. We must be wary because changes brought about by legislation are being introduced by stealth and we may lose sight of the fact that some of our rights are gradually being eroded.
I join with others in complimenting the Minister and his officials on introducing the Bill and guiding it through this House. The Bill's purpose is to ensure compliance with many obligations and decisions made at EU level. This reflects the growing influence of the EU on domestic legislation, a scenario with which I have no difficulty because it is a positive development.
The issues raised by Senator Tuffy are interesting. Obviously, we must be conscious of people's rights and be particularly vigilant to avoid miscarriages of justice. However, all too often, serious criminals use general rights to avoid detection and prosecution. We should be conscious that this impinges to a large extent on other people's rights.
Many well-known criminals are at large. In the fight against crime, which, as the Minister of State rightly noted, does not recognise national boundaries, it behoves all states to co-operate with each other to put systems in place that can adequately ensure that the rule of law is applied across the board. It is important to balance the rights of culprits with the rights of victims. I do not see evidence of this in much of the operation of the criminal justice system, a state of affairs of which both Houses should be conscious. My comments are perhaps a counterpoint to Senator Tuffy's comments.
I am aware that our system is predicated on ensuring that serious miscarriages of justice, like those which pertained to crimes of a political nature witnessed in the neighbouring jurisdiction, do not take place and that innocent people are not incarcerated. However, well-known criminals who are amassing fortunes are at large and it is often the less important criminals who end up in prison. This illustrates the flaws in our system. This Bill is a component of an overall framework which is needed to redress this balance.