Criminal Justice (Mutual Assistance) Bill 2005 [Seanad Bill amended by the Dáil]: Report and Final Stages.

I welcome the Minister for Justice, Equality and Law Reform, Deputy Brian Lenihan, to the House. I wish to be associated with the expressions of sympathy to the late Dr. Patrick Hillery, the former President. He was a lovely, simple man and a very effective, long-serving politician.

The Criminal Justice (Mutual Assistance) Bill 2005 is a Seanad Bill which has been amended by the Dáil. In accordance with Standing Order 103, it is deemed to have passed its First, Second and Third Stages in the Seanad and is placed on the Order Paper for Report Stage. On the question "That the Bill be received for final consideration", the Minister may explain the purpose of the amendments made by the Dáil. This is looked upon as the report of the Dáil amendments to the Seanad. For Senators' convenience, I have arranged for the printing and circulation of the amendments. The Minister will deal separately with the subject matter of each related group of amendments. I have also circulated the proposed grouping in the House. A Senator may contribute once on each grouping. I remind Senators that the only matter that may be discussed is the amendments made by the Dáil.

Question proposed: "That the Bill be received for final consideration."

I call on the Minister to speak on the subject matter of group 1.

Group 1 relates to the amendment of the Long Title. This amendment has simplified the Long Title, which would be too unwieldy if all of the instruments were included in the Title. I refer to the international instruments.

I call on the Minister to speak on the subject matter of amendments in group 2.

This is a large number of amendments but they are purely technical in character. They do not involve any substantive change in the Bill. A number of them correct typographical errors while others provide greater clarity in regard to the interpretation of the Bill. New definitions have been introduced in the light of the additional mutual assistance instruments which will now be given effect to in this Bill.

I call on the Minister to speak on group 3.

Group 3 relates to the Swiss Confederation. There is a fraud agreement between the European Community and Switzerland and these amendments give effect to the mutual assistance provisions in Title III of this international agreement. The majority of the provisions were already included in the Bill as a result of giving effect to other instruments. However, amendments were required to provide for the presence of authorities of another country when a request is being executed and this is being done by way of amendments Nos. 188, 189 and 190.

I welcome these amendments to the Bill, which amount to more than 200, and in particular this area. The Convention on Mutual Assistance in Criminal Matters between Member States of the European Union was adopted in 2000 and the Council Framework Decision on the execution of orders freezing property or evidence dates back to July 2003. It is welcome that this legislation is reaching its final phase at last. When this matter was raised in the Seanad initially I was spokesperson on justice dealing with it. I am glad these items, especially the amendments in this section and other sections, are coming into play finally because we must have assistance between member states on criminal matters in respect of drugs and terrorism offences. We cannot succeed on our own. We must have assistance from the member states and I am glad the Government is coming on board in that regard. It opted out of the clause on co-operation and policing in the Lisbon treaty and I welcome the fact it will review that in coming years.

This legislation is essential for tackling crime, the proceeds of crime and drugs. We see the problems they are creating on the streets in every town in the country. I welcome these amendments. It is about time we had legislation such as this and I would hope that in the review taking place we will join with our European partners and not opt out of legislation on the Lisbon treaty.

I welcome the return of this Bill from the Lower House. Given the way our Constitution works, when we sign up to international treaties and conventions it is necessary either to introduce new legislation or amend existing laws. That is the reason we are doing this. It is a classic example and will help us ratify some international conventions we need to implement.

My party welcomes the progression of this Bill. During the various Stages we suggested some amendments to the Bill. Some were accepted, some were not. We withdrew some amendments on the freezing of assets and some of the powers of the Minister but we are happy also that some of the amendments have been accepted, especially regarding the powers of judges. We are glad to have worked on this Bill and look forward to it being passed.

The removal of borders throughout Europe has led to increased trade and movement of people. That has benefited our economy but it has resulted also in an increase in criminality across borders. That must be stopped and the passage of this Bill will help to do that. We welcome the Bill's passing.

I welcome Senator Hannigan's contribution and the earlier contribution by Senator Cummins and the broad welcome they have extended to this legislation. The legislation is a Bill initiated in Seanad Éireann and it underwent substantial revision and change in Dáil Éireann. I appreciate the positive spirit in which the Senator has addressed that because the option for me was to deal with the new international agreements we have been obliged to implement since the initiation of this Bill. The option was to produce fresh legislation on that or use the opportunity of this legislation to incorporate them as well and we have taken that opportunity. I realise I could have been criticised for that so I am grateful to both Senators for the welcome they have extended.

The majority of the amendments before us give effect to the mutual assistance provisions in five additional international instruments which I should recite on the record. There is the UN Convention against Corruption, the UN Convention against Transnational Organised Crime, the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime and the Financing of Terrorism, the 2005 Council decision on the exchange of information and co-operation concerning terrorist offences, and the co-operation agreement between the European Community and its member states on the one hand and the Swiss Confederation to combat fraud and any other illegal activity to the detriment of their financial interests.

Those five additional international agreements fall for implementation by us and rather than drawing up separate legislation we have used the opportunity of the passage of this Bill, initiated in Seanad Éireann, through Dáil Éireann to incorporate those provisions in this primary statute. I share the view expressed by Senator Hannigan and Senator Cummins that with greater trade and greater movement of persons, goods and merchandise there are greater opportunities for transnational criminality. It is important, therefore, that we have legislation in force that is robust and that can secure the necessary assistance from other jurisdictions. I am aware that preliminary meetings have taken place between the Garda Síochána, the customs authorities and the other relevant authorities with a view to a swift implementation of this legislation.

Regarding Senator Cummins's intervention on the subject of the Lisbon treaty, I wish to correct Senator Cummins. I realise what he said was in a constructive spirit but the Government has not exercised a facility to opt out of European co-operation in the area of justice and home affairs. The position under the Lisbon treaty is that qualified majority voting is being introduced for the first time in the justice and home affairs sector. The initial constitutional treaty provided for qualified majority voting and both the United Kingdom and Ireland initially were receptive to that proposal. As a result of discussions which took place prior to the drafting of the Lisbon treaty, however, the United Kingdom secured an arrangement in discussions between its Prime Minister, Mr. Gordon Brown, and the German Chancellor, Ms Angela Merkel, whereby in effect Britain was allowed to opt out of qualified majority voting in the justice and home affairs sector.

That left Ireland in a very difficult position. Our European friends and partners agreed that if Britain were to have such a facility, it would be only logical that a jurisdiction that has an utterly similar legal system should have a similar facility. The Government carefully weighed up the arguments in this issue and decided it was in Ireland's best interests at this stage to follow the British position in regard to the legal system because of the similarity of our two legal systems. We could not put our Taoiseach in the position of having to press an emergency brake on some obscure legal issue. We have the facility under Lisbon to opt out of qualified majority voting in the justice area.

We opted out. That is what I said.

I am glad to say the Labour Party supported us in the decision we took and, candidly, it would be much more difficult to persuade the Irish people to vote "Yes" if they knew that we could be overruled in sensitive areas of our legal system by our European partners. We had that debate last autumn. We are completely committed to working with our European partners on combating crime but we are also committed as a Government to protecting the essential features of our legal system and the right of the Irish people, through their Parliament and Government, to say "Yes" or "No" to a particular proposal. That is what we have secured in this area. Senator Cummins and I will agree on this because a declaration was appended to our declaration in regard to the European position which made it clear that we intend to co-operate to the maximum possible extent with our European partners in combating crime. Indeed, we support the fact that the justice matters are now dealt with in the Lisbon treaty and that it provides a framework for more robust co-operation in dealing with drugs and crime.

We have not followed the United Kingdom in respect of the opt-out it obtained for the Charter of Fundamental Rights. That is one of the most important features of the Lisbon treaty to which we should draw the attention of the public. For the first time, the individual citizen in Europe will be able to invalidate European laws in a European court in the same way as, at present, an Irish citizen can invalidate Irish laws in an Irish court. That is a good development in the Lisbon treaty and a factor of which the public should be aware.

We all know of the disconnection which exists between the Union institutions and the individual citizen. If the citizen is gaining access for the first time to invoking the jurisdiction of the European courts to set aside European law, that is a valuable safeguard of individual rights contained in the treaty. I have digressed somewhat from the Bill and I thank the Leas-Chathaoirleach for his indulgence.

Group 4 contains amendments Nos. 24, 52, 54, 55, 65, 67, 70 to 72, inclusive, 156, 165 and 210. These arise from the Dylan Creavan case in regard to District Court jurisdiction. This was a Supreme Court case of Dylan Creavan, Silicon Technologies v. Criminal Assets Bureau, which turned on the validity of a search warrant issued under section 14 of the Criminal Assets Bureau Act 1996. The court found that for a warrant to be valid, it must be issued while the District Court judge is physically located in the district to which he or she is assigned. The issue was subsequently addressed by way of amendment to the Courts (Supplemental Provisions) Act 1961, providing for the exercise of certain powers by a judge of the District Court while outside his or her district.

The amendment in the Bill before us, amendment No. 210, aligns the provisions in the Bill with those of the Courts (Supplemental Provisions) Act, as amended. Other amendments in this group amend Part 2 of the Bill so applications for information on fiscal or financial transactions must now be made to the High Court rather than the District Court.

Group 5 contains amendments Nos. 28 to 30, inclusive. These relate to section 3 which sets out the circumstances, and strengthen the grounds, in which mutual assistance may be refused.

Group 6 contains amendments Nos. 31, 44 to 47, inclusive, 53, 56 to 59, inclusive, 61, 62, 64, 68, 73, 87 and 89 to 91, inclusive. These amendments deal with the designation of states and provide that the Minister for Foreign Affairs may limit certain aspects of mutual assistance in designated states which have signed up to relevant international instruments. This addresses concerns expressed in Dáil Éireann that the Bill as drafted originally was too broad in its powers.

Senators should note however, that amendment No. 45 is a saving provision to enable continuation of any current reciprocal mutual assistance arrangements in regard to service of summonses and gathering of evidence and for which states have been designated under the Criminal Justice Act 1994.

Group 7 contains amendments Nos. 32 to 35, inclusive. These all relate to section 6 and provide additional clarification of the procedures to apply to requests for assistance.

Group 8 contains amendments Nos. 36, 38, 39, 41 and 43. The Revenue Commissioners currently undertake certain functions in regard to the provision of information to other states under existing mutual assistance agreements. These amendments confirm the legitimacy of these arrangements. Clearly, the Revenue Commissioners are better placed than the Garda to provide information on revenue offences.

Group 9 contains amendment No. 37. It clarifies the role of the central authority by stating that it will co-operate also in response to requests from corresponding authorities in other states.

Group 10 contains amendments Nos. 51, 66, 81, 82 and 84. Concerns were expressed by Senators during the previous debates in Seanad Éireann that applications for certain information should be heard otherwise than in public in order not to compromise the lawful monitoring or interception of information. These amendments are being made to address the concerns raised by the Seanad.

Group 11 contains amendments Nos. 60, 69, 147, 149, 153, 155, 164 and 202 to 204, inclusive. These amendments address the fact the Bill is being enlarged to give effect to additional international instruments and they provide that information or evidence obtained may be used for the purposes permitted by the relevant international instrument.

Group 12 contains amendments Nos. 74, 151 and 183. These amendments provide for penalties to correspond with a number of offences contained in the Bill. They correct a number of previous omissions.

Group 13 contains amendments Nos. 83 and 121. These amendments are essentially an amalgamation of Parts 4 and 5 and sections 30 and 40 of the Bill as passed by Seanad Éireann. The amendments I now propose clarify the provisions in regard to freezing, confiscation and forfeiture orders and are being made on the advice of the Attorney General.

Group 14 contains amendments Nos. 85, 86, 88, 92 to 116, inclusive, and 118 to 120, inclusive. These amendments relate to the making of freezing orders. They include a number of purely technical corrections or clarifications but also a number which make substantive changes to the Bill.

Amendments Nos. 94, 96 and 99 extend the provisions of the Bill to non-EU member states. This is being done on the advice of the Attorney General to provide more complete legislation. Amendments Nos. 100 to 107 restate provisions from the Criminal Justice Act 1994 which had previously been amended by 1996 regulations. The Attorney General has advised that these existing provisions should be placed in primary legislation to protect them from legal challenge.

Group 15 contains amendments Nos. 122 to 144, inclusive. These amendments deal with confiscation or forfeiture orders. Some are purely technical improvements or clarifications in the Bill but a number make substantive changes. Amendments Nos. 125, 128, 140, 143 and 144 are required to give effect to provisions in the UN Convention against Transnational Organised Crime and the UN Convention against Corruption. They are being included on the advice of the Attorney General.

Amendments Nos. 129 to 135, inclusive, restate further provisions from the Criminal Justice Act 1994 which previously had been amended by the 1996 regulations. The Attorney General has advised that these provisions should be placed in primary legislation to protect them from legal challenge.

Group 16 contains amendments Nos. 148, 154, 171, and 191 to 201, inclusive. Amendments Nos. 148, 154, 171, 191, 193, 194 and 196 to 201, inclusive, relate to the admissibility of evidence and were introduced on the advice of the Parliamentary Counsel to improve the drafting of the Bill. Amendment No. 192 includes records relating to the date and mode of service in the documents that may be admissible without further proof. This amendment is made at the request of the Garda Síochána. Amendment No. 195 provides that chain-of-evidence certificates from other states are admissible without further proof. This amendment is made at the request of the Attorney General.

Group 17 contains amendments Nos. 158 to 160, inclusive, and 166 to 168, inclusive. These amendments deal with searches for evidence and production orders. Amendments Nos. 158 and 167 are being made at the request of the Garda Síochána as the existing provisions are considered to be inoperable. Prior to amendment, the Bill provided that gardaí seeking a search warrant must satisfy the judge that the occupier of the place to be searched had not consented to entry. This would have allowed occupiers forewarning of a search and may have prejudiced compliance with a request.

Amendments Nos. 159 and 160 restate provisions in section 63(9) of the Criminal Justice Act 1994 for the sake of clarity. Amendment No. 168 inserts new subsections in section 61 relating to searches for particular evidence outside the State. The Parliamentary Counsel advised that further detail was required and the provisions are based on similar provisions in the Proceeds of Crime (Amendment) Act 2005. Amendment No. 166 is a purely technical amendment correcting a cross-reference.

Group 18 contains amendments Nos. 170 and 172 to 178, inclusive. These amendments relate to identification evidence provisions. Amendments Nos. 170 and 172 allow samples to be taken by a nurse, consistent with existing provisions in the Road Traffic and Transport Act 2006. Amendment No. 173 concerns the taking of hair samples and mirrors provisions of the Criminal Justice (Forensic Evidence) Act 1990, as amended.

Amendment No. 174 provides, in addition to the requirement to destroy evidence obtained under these provisions, for assurances to be given that any records or analysis of evidence also will be destroyed. Amendments Nos. 175, 176, 177 and 178 mirror provisions of the Children Act 2001, as amended, relating to the age of consent.

Group 19 contains amendments Nos. 179 to 181, inclusive. These amendments deal with service of documents. Amendment No. 179 provides that notice must be given to a person on whom a document is served on behalf of another state regarding their rights or obligations and that no measure of restraint or punishment may be enforced directly by a court in another state. Amendment No. 180 allows service of documents by post and amendment No. 181 requires that documents sent to Ireland must include a copy in Irish or English.

Group 20 contains amendment No. 182. The amendment gives effect to Article 46.3 of the UN Convention against Corruption and Article 18.3(d) of the UN Convention against Transnational Organised Crime, which provide that mutual assistance shall include the examination of objects and sites.

Group 21 contains amendment No. 185. This amendment extends existing provisions for service of members of the Garda to serve outside the State in making controlled delivery or as a member of a joint investigation team. The amendment substitutes the current text of section 76 of the Bill which amended sections of the Garda Síochána Act 1989. That Act was repealed when the relevant provisions of the 2005 Garda Síochána Act was commenced in May 2007.

Group 22 contains amendment No. 186. This amendment gives effect to Article 2(1) of the EU Council Decision and names the designated national unit under the Europol Act as the specialised service within the Garda Síochána.

Group 23 contains amendment No. 187. This amendment has the effect of extending participation in joint investigation teams to non-EU member states, in accordance with the UN Conventions against Organised Crime and Transnational Organised Crime.

Group 24 contains amendment No. 205. This amendment gives recognition to third party rights, as required by Article 32 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and the Financing of Terrorism.

Group 25 contains amendments Nos. 207 and 208. Amendment No. 207 was raised by Deputy Rabbitte on Committee Stage in the Dáil and deletes paragraph (e) of section 104, eliminating a contradiction with the terms of the Criminal Justice Act 2004. Amendment No. 208 modifies section 63 of the Criminal Justice Act 1994, on the advice of the Attorney General following recent cases, Yogesh Pala, where doubt was cast on applicability of that section to cover court orders to make material available in cases where no prosecution was intended, for example, for purposes of investigation.

Group 26 contains amendment No. 209. This amendment was sought by the Criminal Assets Bureau to clarify a discrepancy in the Criminal Assets Bureau Act and ensure there is no ambiguity about the bureau's entitlement to co-operate with authorities of other states in accordance with section 5 of that Act.

Group 27 contains amendments Nos. 211 to 226, inclusive. These involve adding the relevant international instruments to the Schedules to the legislation.

Question put and agreed to.

When is it proposed to take Fifth Stage?

Question proposed: "That the Bill do now pass."

When the Bill was first introduced in the Seanad in 2005, little did I think it would not be passed until 2008. I accept the Minister's point that a number of Schedules, etc., had to be included. Fine Gael has pointed out on numerous occasions that co-operation in respect of policing and criminal law matters is imperative at EU level, particularly if organised crime, drug trafficking and human trafficking are to be combatted in an effective manner. In respect of the forthcoming referendum on the Lisbon treaty, we should stress the co-operation that exists in respect of mutual assistance.

I compliment everyone involved in the preparation of this legislation. It has been a hard slog. I congratulate the officials in the Department with regard to the work they did on the Bill. I also congratulate the Minister and his staff.

The country will be a better place as a result of the implementation of this legislation. I hope it will have the desired effect in the context of bringing to book criminals, fraudsters and others and that we will have a safer society as a result.

I welcome the passage of the Bill. On a daily basis we become aware of criminal issues that transcend national borders. As a result, anything that can help to bring about improvements in the position is welcome. I congratulate the Minister and his staff on the work they have done to ensure the Bill would be passed.

I welcome the passage of the Bill through both Houses. I congratulate the Minister, his staff and the officials in his Department on the major work done in respect of this legislation. There are a number of areas of the Bill that are quite technical in nature and in respect of which serious consideration was required. The drafting process relating to the legislation has been excellent.

We need to ensure there are no boundaries in the European Union in respect of the freezing, confiscation or forfeiture of materials. The service of documents will become easier as a result of the passage of this legislation, which also will be of assistance in combating serious crime in the EU.

I thank Senators for the speedy way in which today's business was dispatched. Some Members have a good understanding of the legislation because it was, of course, also considered by the previous Seanad, where it was first introduced.

I acknowledge the kind remarks made about my staff. There is no doubt the Department was obliged to invest a phenomenal amount of work into the legislation. The revisions and changes required were valuable and have left us with an instrument that will, as Senator Cummins pointed out, assist us in dealing with the international gangs, fraudsters and other personalities in collision with our criminal law.

The intention is to commence the legislation during the next three months. There is a variable commencement section in the Bill and different provisions will be commenced at different stages. My officials have set a three-month timescale for the completion of that commencement.

Question put and agreed to.

When is it proposed to sit again?

At 2.30 p.m. on Tuesday, 22 April 2008.