I am pleased to have this opportunity to introduce the Criminal Justice (Miscellaneous Provisions) Bill 2009 to the Seanad. The Bill contains a range of different and distinct measures. The intention behind it is to further improve the overall criminal justice system and update existing statutes in some areas where we have identified a need to do so.
The Bill is divided into five Parts. Part 1 contains the standard preliminary features of all legislative proposals, including the Short Title, the interpretation section and the provision that the Exchequer will bear the costs of administering the Bill when enacted.
Part 2 contains amendments to the European Arrest Warrant Act 2003, as amended by the Criminal Justice (Terrorist Offences) Act 2005, which for the sake of clarity I will refer to hereafter as simply "the Act". The Act gave effect to the EU framework decision on the European arrest warrant and replaced extradition arrangements between member states with a system of surrender based on arrest warrants issued by judicial authorities of member states. The amendments proposed in this Part are necessary to deal with issues which have arisen in the administration and implementation of the Act. As the House will be aware, the Act has been in operation for over five years and there is a better understanding, both here and across all member states, of the European arrest warrant system. The amendments to the Act proposed in the Bill are timely and will enhance the operation of the European arrest warrant system, while at the same time safeguarding the rights of persons whose surrender is sought on foot of European arrest warrants.
Section 4 of the Criminal Justice (Miscellaneous Provisions) Bill 2009 amends section 2 of the Act by inserting a number of definitions used in the substantive sections of the Bill and deleting a couple that are no longer relevant because of other amendments to the Act by the Bill. Section 5 deletes subsections (2) and (3) of section 4 of the Act. These subsections were inserted originally to accommodate declarations made by Austria, Italy and France, pursuant to Article 32 of the framework decision, that requests for surrender sent to these states for offences committed before the dates specified in the declarations would be dealt with under the old extradition arrangements rather than the European arrest warrant system. An unintended effect of the subsections is that Ireland cannot accept European arrest warrants from these countries relating to acts committed before the dates specified in the declarations. The section is being amended in order to remedy this.
Section 6 amends section 10 of the Act by deleting the word "duly". The word "duly" can be interpreted as meaning that the validity of a European arrest warrant could be inquired into by an Irish court. This goes against the very principle of mutual recognition on which the European arrest warrant system is based. Section 10 is also amended by the deletion of text which limits the scope of European arrest warrants where a custodial sentence has been imposed and the offender has fled from the issuing state. This is not a formal requirement of the framework decision and is being deleted in order to simplify the procedure in such cases.
Section 7 amends section 11 of the Act. Section 7(a) clarifies that there is no requirement for domestic arrest warrants to recite each of the offences in respect of which surrender is sought. It is sufficient for an arrest warrant to have been issued, by a judicial authority in the issuing state, for just one of the offences to which the European arrest warrant relates. Section 7(b) is a purely technical amendment to correct the numbering of the subsections. Section 7(c) substitutes the text of subsection (2A). The substituted text removes the reference to “where it is not practicable” in the subsection, and in this way, permits information not included in the warrant to be specified in a separate document without further requirement for proof. This amendment will considerably ease the administrative burden in the processing of European arrest warrants.
Section 8 contains a number of amendments to section 12 of the Act, which deals with the transmission of documents. It provides that European arrest warrants, and any other documents required, may be transmitted by any means capable of producing a written record under conditions allowing the central authority in the State to establish its authenticity. It is intended to allow for the use of modern means of communication, including e-mail. The section also substitutes the text of section 12(7) of the Act which specifies how a document is to be deemed a ‘true copy' for the purposes of the Act. The purpose of the substituted text is to simplify the procedure for certification of true copies of documents for the purpose of the Act.
Section 9 amends section 13 of the Act by deleting the references to ‘facsimile copy'. Again this is consequential on the revised provisions on transmission of documents in subsection (8)(a).
Section 10 substitutes section 14 of the Act. The current text of section 14 was intended to give effect to Article 9(3) of the framework decision on the European arrest warrant which provides, in general terms, that an alert in the Schengen information system will be equivalent to a European arrest warrant. The Schengen information system is one of the elements of the Schengen acquis in which Ireland opted to participate. It consists of a database allowing designated authorities in participating states to have access to information on persons and property for specified purposes. However, to date, the technical, administrative and legal infrastructure necessary to participate in the system have not been in place and section 14 has, therefore, had no practical effect.
The original system is now in the process of being upgraded on foot of a Council decision of June 2007 to establish a second generation of the system. The new section 14 anticipates Ireland's participation in the upgraded system and provides for arrest on foot of an alert for arrest and surrender entered in the system. The section sets out the procedure to be followed following such an arrest and provides that a person will be released if a European arrest warrant is not received within the time specified by the High Court.
Section 11 amends section 15 of the Act which deals with consent to surrender. Paragraph (c) restricts the grounds of appeal to the Supreme Court to cases which the High Court certifies as involving a point of law of exceptional public importance and where it is desirable in the public interest that an appeal should be taken to the Supreme Court. This is an important restriction to prevent the lodging of frivolous or vexatious appeals whose only purpose is to delay surrender. Paragraph (e) clarifies that where a person has either lodged an appeal to the Supreme Court against an order for his or her surrender or has made a complaint under Article 40.4.2° of the Constitution — a habeas corpus application — he or she will not be surrendered while the appeal or the complaint is pending. Paragraph (f) provides that, where surrender does not take place within the period specified, the High Court may remand a person for a further period to enable surrender to take place, unless it considers that it would be unjust or oppressive to do so. Paragraph (g) inserts a new text at subsection 15(9) which provides that the High Court may remand the person in custody or on bail pending the hearing of an appeal to the Supreme Court. The provision for the withdrawal of consent to surrender in the original section 15(9) has been removed. I am satisfied, having regard to the requirements of the section, that the High Court must be satisfied that consent is both voluntary and informed and that the person has had an opportunity to receive legal advice before consenting that this is appropriate.
Section 12 amends section 16 of the Act, which deals with contested applications for surrender. Paragraph (c) restricts the grounds of appeal to the Supreme Court to cases which the High Court certifies as involving a point of law of exceptional public importance and where it is desirable in the public interest that an appeal should be taken to the Supreme Court. Paragraphs (d), (e) and (f) insert provisions which bar the surrender of a person while an appeal to the Supreme Court or a habeas corpus is pending and limit the right of appeal and provide for the extension of the period of remand, where necessary, in order for surrender to take place. Paragraph (g) enables the High Court to remand a person, in custody or on bail, where an appeal to the Supreme Court has been lodged. All of these amendments are similar to the amendments which I have just described for section 15.
Section 13 amends section 18 of the Act to provide that postponement of surrender where proceedings are pending in the State, will be "until the final determination of those proceedings" as the existing wording of the section does not reflect all possible outcomes of proceedings. Section 14 amends section 20 of the Act which deals with requests for additional documentation and information by the High Court. The purpose of the amendment is to align the provisions of the Act with those of the Extradition Acts regarding evidence in writing which are being revised in line with a recommendation from the Attorney General.
Section 15 amends section 29 of the Act. That section sets out the procedure for dealing with two or more European arrest warrants received in respect of the same person from different issuing states. This does not, however, cover the situation where two or more warrants are received from different judicial authorities in the same member state. The amended section applies where two or more warrants are received in respect of a person, whatever the source.
Section 16 amends section 33 of the Act, which deals with the issue of European arrest warrants by an Irish court. It allows a court to issue a European arrest warrant once satisfied that a domestic warrant is in existence for the person and that the person may not be in the State and provides for the admissibility of Garda evidence as to the whereabouts of the person. It also makes it clear that a European arrest warrant can be issued where a person has been or is liable to be sentenced to imprisonment or detention. This is in accordance with the framework decision and other provisions of the Act which provide for execution of European arrest warrants where the penalty is detention.
Section 17 amends section 38 of the Act, which deals with the offences in respect of which surrender may be granted. Section 38(1) allows surrender for an offence which is listed in Article 2.2 of the framework decision on the European arrest warrant or "is an offence that consists of conduct specified in the paragraph,". The Supreme Court, in a judgment, concluded that this phrase has no meaningful effect in the operation of the Act and, accordingly, it is being deleted.
Section 18 amends section 34 of the Act and provides that a European arrest warrant issued in the State may, rather than shall, be transmitted by the central authority, thus providing for transmission of warrants via the Schengen information system. Section 19 deletes section 40 of the Act, which was intended to apply, as a bar to surrender, in a narrow set of circumstances where delay in proceedings was an issue. As the question of delay is, however, a matter more appropriately dealt with by the courts in the issuing state, the provision has been removed.
Section 20 amends section 45 of the Act and inserts three new sections into the Act. Section 20(a) substitutes section 45. This is a technical amendment to correct duplication in the numbering of the subsections. Section 20(b) inserts new sections 45A, 45B and 45C into the Act which deal with identification procedures, transfer of persons to the state from which surrendered and technical flaws in applications for surrender respectively.
Section 45A provides for identification procedures. A key requirement under the European Arrest Warrant Act is that the court must be satisfied that the person before it is the person named in the European arrest warrant it is considering. I understand that fingerprints, palm prints and photographs of a requested person are often sent by requesting states to assist with identification. The Garda Síochána has no power to take similar material from the arrested person for comparison with the material received. The new section addresses this situation.
This section authorises the Garda Síochána to photograph, fingerprint and palm print persons arrested under the Act for the purpose of verifying the person's identity. Reasonable force may be used to take this material subject to appropriate authorisation and the other safeguards specified, which are in line with similar provisions in criminal justice legislation. The section also creates an offence of obstructing a Garda in the execution of powers under this section. It also provides for the admissibility in evidence of identification material sent with a European arrest warrant to Ireland.
Section 45B provides a mechanism for the transfer, after trial, of persons who have been surrendered to Ireland on foot of a European arrest warrant to the state which surrendered them in order to serve the sentence imposed by the Irish court. The background to this is that under Article 5.3 of the framework decision on the European arrest warrant, where a person whose surrender is sought is a national or resident of the executing state, surrender may be subject to the condition that the person is returned, after the trial, to the executing state to serve any sentence imposed. We had not previously legislated to give effect to this provision of the framework decision and, while this has not caused any problems to date, I am of the opinion that it is important we have a procedure in place. The procedure set out in the section is similar to that in the Transfer of Sentenced Persons Act 1995. It is a fundamental requirement of the section that the person consent to the transfer.
Section 45C is a new section providing that applications for surrender will not be refused owing to minor or technical defects in the European arrest warrant. It goes against the principle of mutual recognition that requests for surrender from our EU partners should be refused on purely technical grounds. An important safeguard for the requested person is that the section will not be applied where the court considers its application could lead to an injustice.
Section 24 amends section 27 of the Extradition Act 1965 which deals with provisional arrest. I have dealt with arrest without warrant on foot of an alert on the Schengen information system. This amendment reflects the fact that there are countries participating in the Schengen information system where the European arrest warrant does not apply. It is a requirement of states participating in the system that an alert for extradition entered on the system will be treated as a request for provisional arrest for extradition. The section also provides for definitions of certain terms related to the Schengen information system.
Part 3 contains several provisions relating to Ireland's participation in the Schengen Convention. The convention is an agreement between certain European states which allows for the abolition of border controls among the participating states. It also includes provisions on common policy on visa matters, the harmonisation of external border controls and cross-border police and judicial co-operation. Ireland will participate in the measures relating to police co-operation, mutual assistance in criminal matters, extradition, drugs co-operation and the Schengen information system. This is an increasingly important area of operation for the administration of justice given the increasingly international dimension of many criminal activities. The Schengen information system is an electronic alert system which facilitates the exchange of information between police and customs authorities within the Schengen system.
The relevant articles of the convention will come into effect in Ireland only after a range of technical and legislative measures have been put in place. This Bill provides for several of these measures and defines the principal Schengen terms. Specifically, it contains a provision enabling the Garda and the Revenue Commissioners to exchange information with other Schengen member states and a provision designating the Data Protection Commissioner as the supervisory authority for data held in the Schengen information system.
A substantial and important part of this Bill is devoted to the licensing of firearms and associated issues. For ease of reference and debate the 20 firearms and offensive weapons related sections can be grouped into the following categories: public safety and control issues, technical matters, efficiency and modernisation measures.
I will deal first with the sections which deal with matters of public safety and control. Section 30 addresses the licensing of handguns. For more than 30 years prior to 2004, all handguns effectively were banned in this jurisdiction. Following a series of judicial decisions that is no longer the case and almost 2,000 handguns have been licensed in the five years since. The Minister has been concerned that this situation did not come about as the result of a considered or deliberate public policy decision. The growth in the ownership of handguns, as a new trend, is in itself a source of concern. It would be disturbing if the assumption that a positive outcome for some shooting interest groups in some judicial review cases on licensing matters was seen as an accretion of rights. This is flawed logic and I want to dispel any notions that there is any inherent ‘right' to be considered here.
I am aware that some people have a strongly held view that once they are of good character and make the necessary secure arrangements for the storage of their firearms they should be free to have firearms of any kind licensed to them. I do not agree with this. This view would represent an unacceptable situation where our gun laws could mirror those of countries such as the United States. If the present situation continued unchecked, this would happen. We had no alternative but to call "Stop" and address the current specific and long-term strategic issues at the heart of this matter. We would never be happy if firearms were freely available or if, as happens in some jurisdictions, there were a notification system under which one purchases the firearm and informs the authorities afterwards.
The Minister was conscious of the remarks made in the High Court last July that a reasonable person is entitled to feel alarmed at the proliferation of handguns. I am aware, too, of calls made by members of the Oireachtas from several parties to address this situation. It was against this background that he directed the Department and the Garda Síochána to carry out an urgent and intensive review of the firearms law. Following from that review, the proposals for reform in this area include a ban on issuing new licences for handguns, although there will be limited exceptions for handguns designed for use in connection with competitions governed by International Olympic Committee regulations.
As the House may be aware the Department of Justice, Equality and Law Reform has liaised closely with the sports shooting groups, through the firearms consultative panel, FCP, over the past 18 months and there has been considerable discussion on many aspects of shooting sports. The Minister met the FCP on 9 June and following that and arising from it, he received a submission, which he has referred to his colleague, the Minister for Arts, Sport and Tourism, on target shooting for calibres above Olympic specification. I understand the Department of Arts, Sport and Tourism is examining the issue and will liaise with the Department of Justice, Equality and Law Reform on it in due course.
As the Minister announced at that time, those who already have licences can, when they are due for renewal, apply to have them renewed, albeit under the new licensing procedure where the safety of the community will be paramount. In the wake of the Minister's announcement last November, many public representatives received representations for and against the handgun ban, but I especially note the endorsement by the chief inspector of the Garda Síochána Inspectorate who drew on her own very considerable experience of policing in the United States. She was quoted as saying that many guns used in the commission of crime in the States are guns that have been stolen from their rightful owners. Several handguns here have been stolen from licence holders. Those guns, by definition, are immediately in criminal hands. I am concerned not only with the possibility of licensed firearms falling into the hands of criminals but the other issues involved and, in particular, the Government regards the growth of a handgun culture as simply unacceptable.
The International Action Network on Small Arms reported at the time of the announcement: "Unlike the UK, which imposed the ban in response to the Dunblane school shooting in 1996, the Irish government decided to act before a major tragedy involving handguns occurs." It is right that we take this action now rather than endure a tragedy at some point in the future when people would rightly ask us, as politicians, why we did nothing in advance to prevent it.
It is also intended, under section 33, to prohibit the form of target shooting known as practical or dynamic shooting. This type of shooting involves firearms being used in simulated combat or combat training and is anathema to most target shooters. In so far as it is akin to police and military tactical training it is an undesirable activity not rooted in any tradition in Ireland and one which should not have any place in our society. I am informed that most mainstream shooting organisations in Ireland have dissociated themselves from it, and this speaks volumes.
Section 36 brings under tighter control the importation of firearms and ammunition by specifying that such importation may be made only by a registered firearms dealer on foot of an importation licence having being granted by my Department. The intention of this section is to channel all imports through registered firearms dealers. It is simply not acceptable to let the present system continue whereby an issuing officer can in theory license a firearm which the Minister does not want licensed here. It is important that there be a national perspective and an ability to see trends in firearms importation and licensing. This measure is designed to provide that oversight.
While that is the intention, it is also important that the planned new restrictions on personal importation do not apply to Irish shooting tourists returning from abroad with their firearms. As they would have a firearm certificate for the firearm, this should not be considered an import and the new section 17 should not apply. With more than 220 registered firearms dealers in the country, I would question if this is necessary but perhaps we ought to permit the holder of an Irish firearms certificate to purchase a firearm within the EU from an authorised dealer. Any such transaction would have to be on a face to face rather than distance purchase, for example, over the Internet. For these reasons this Bill will not commence until my officials have clarified the operation of prohibitions with their counterparts in the Revenue Commissioners. This is the normal procedure.
On the classifying of firearms, firearms are divided into two categories in Irish law, non-restricted and restricted. This Bill proposes a measure to increase the sophistication of our ability to categorise firearms. It introduces the concept of a prohibited firearm. Section 27 proposes that the Minister for Justice, Equality and Law Reform should have the residual powers to declare certain firearms and ammunition to be prohibited. The Minister will, in consultation with the Garda Commissioner, keep firearms licensing under review in the interests of public safety. This residual power will, in particular, allow the Minister to address any particular issues which arise threatening the safety of the community.
Prior to moving on, it is important to stress that our proposals will not impinge adversely on the activities of the majority of licensed firearms holders. I recognise that those firearms holders pursue their legitimate interests in a law-abiding way and I am anxious to have a well regulated sector in which those interests can be successfully pursued, in co-operation with the relevant authorities. Section 34 inserts a new section into the principal Act obliging certificate holders to report the loss or theft of a firearm and creates offences for failure to do so.
Section 40 regulates the sale and use of realistic imitation firearms, including devices known as airsoft. These items are practically indistinguishable from real firearms and have on occasion been used to intimidate and rob and in anti-social behaviour. There is also a real possibility of a tragic incident occurring should armed members of the Garda Síochána be called out in response to reports of a person carrying or brandishing one of these realistic imitation firearms. We will be making their possession in a public place a serious offence. Again, the relevant associations have been involved in dialogue with the Department and these proposals to regulate and control airsoft activities should come as no surprise. Some of the measures in this section were requested by those who play airsoft to protect their activity from irresponsible and casual purchasers.
There are also two sections relating to knives and bladed or sharply-pointed weapons. Though the number of murders, the most serious crime committed involving knives, fell from 37 to 15 last year, there is no room for complacency. The overall number of crimes committed using knives is a matter of great concern to all of us.
In any discussion about offensive weapons, there is one aspect of the problem we must confront. Items used as offensive weapons are often items which have legitimate everyday mundane uses. This makes it almost impossible to distinguish by legal definition between knives which have a legitimate use and those the sale of which might be undesirable. Even if this was to be attempted it would prove futile in practice as ordinary kitchen knives or tools, the sale of which is not prohibited, could be just as lethal in the wrong hands as anything which might be prohibited and are all too often the weapons used to cause death or serious injury. That is why the law has to concentrate on the circumstances in which these items are in a person's possession.
Last year, the Minister requested the Commissioner of the Garda Síochána to conduct a review of the provisions of the legislation in the context of the increased use of offensive weapons in assaults and murders. The purpose of the review was to identify aspects of the legislation that may require strengthening from an enforcement perspective. The Bill contains two sections on the control of weapons arising from these fatal stabbings. It is proposed to increase the maximum prison sentence for possessing a knife in a public place from one year to five years under section 39 and to extend the power of search without warrant in circumstances where a member of the Garda Síochána has reasonable grounds to suspect a person is carrying any article for unlawful purposes under section 41. We also intend to create a new firearms and offensive weapons order to deal with the issue of samurai swords.
Sections 25, 26, 32, 35, 37, 38, 42 and 43 involve purely technical amendments which themselves are of no great policy significance. These technical and practical amendments with the efficiency and modernisation measures contained in sections 28, 29 and 30 of the Bill will permit the transformation to a comprehensive and efficient firearms licensing regime, including making the changes necessary for the implementation of the final outstanding sections of the Criminal Justice Act 2006 to be commenced.
Section 28 of the Bill provides for the changeover from the current one-year system where all licences expire on 31 July to a new three-year system with phased expiry so that the work involved in applying the new regime can be spread out over a 12-month period. Section 30 provides for the outsourced collection of the more than 230,000 firearms certificate fees and will free up a significant amount of Garda time as a result.
The new three-year licence for firearms is a big and a welcome step forward in terms of efficiency and customer service. With this step-change come logical improvements in how we license firearms, including secure storage, taking up references for applicants and acquiring consent to make medical inquiries where that may be necessary.
As regards this legislation and how it will impact on the shooting sports community, there has been an unprecedented level of consultation with shooting groups during the development of the Bill and these consultations have been intensive and productive. The previous Minister for Justice, Equality and Law Reform established a firearms consultative panel comprising the shooting interest groups, the Garda Síochána and members of the Department to assist with the introduction of the firearms licensing regime provided for under the Criminal Justice Act 2006 and this panel has met on a regular basis for the past 18 months.
The Department of Justice, Equality and Law Reform held a firearms conference in May 2008 with more than 100 delegates from shooting interest groups, Departments and the Garda Síochána in attendance. In February 2009, the Department, in conjunction with Countryside Alliance Ireland as sponsor, held a further seminar focused on forthcoming legislation regulating shooting clubs and ranges. As a result of this inclusive and active participation, I believe that the proposals in this Bill will not come as a surprise to the legitimate and responsible hunters and target shooters of the country and that they will be accepted and even welcomed by many of them.
Section 29 allows the Commissioner of the Garda Síochána or the Minister to issue guidelines on the practical application of the Firearms Acts. I understand that the Garda Commissioner, as head of the licensing authority, proposes to introduce guidelines which will be publicly available. These guidelines will attempt to address one of the main criticisms of the current licensing system, namely, a lack of uniformity in the application of the Firearms Acts and the processing of applications.
In addition to these guidelines, in 2008 the Garda Síochána established the firearms policy unit. This has helped to ensure that the Commissioner's policies on firearms licensing are clearly understood and standardised throughout the force and has been invaluable in resolving problems and complaints about applications.
The firearms legislation, which stretches back over 80 years and across five main Acts, has been criticised by some commentators as being difficult to interpret. The Law Reform Commission has scheduled a restatement of the Firearms Act which I welcome and which I hope will help to alleviate this problem.
Part 5 of the Bill deals with a range of miscellaneous matters which have been identified as requiring amendment for a variety of reasons. Section 40, for example, amends the Summary Jurisdiction Act 1857 to allow a District Court a longer period of time to state a case following a request to do so. Section 41 also provides for a change to the Summary Jurisdiction Act 1857. It sets out the procedures to be followed in serving relevant documents to other parties involved in an appeal by way of case stated.
Section 43 amends sections 5 and 9 of the Bail Act 1997. The amendments are of a technical nature. Section 5 deals with the payment into court of bail money. The amendment clarifies that, for instance, in cases where the person who has been granted bail is remanded in custody until the bail money is raised, payment of the money to the prison governor may be regarded as a payment into court. This avoids the need to hold the person until the court is sitting and avoids having to bring the person to the court to pay the money.
Section 9 is concerned with the estreatment of recognisances and the forfeiture of money into court. The amendments aim to improve the drafting by amalgamating section 9(1) and 9(2). Section 9(12) now makes clear that the order for committal to prison for non-payment of an estreated amount may be made in respect of the surety as well as against the person who was granted the bail.
Section 44 amends section 15 of the Criminal Justice (Theft and Fraud Offences) Act 2001, by inserting an additional offence. It is proposed that a person commits an offence if he or she is in possession without lawful authority or reasonable excuse of any article made or adapted for use in the course of or in connection with the commission of a number of offences under the 2001 Act, including theft and burglary. An example would be the possession, even in a person's home, of devices to attach to ATMs. A defence to the new offence is also provided.
Section 45, the final section in the Bill, proposes a minor technical amendment to the 2001 Act. We made an amendment on Committee Stage that would further clarify the operation of section 99 of the Criminal Justice Act 2006 on suspended sentences.
To sum up, the Criminal Justice (Miscellaneous Provisions) Bill 2009 will complete the process of reform in firearms licensing which began with the Criminal Justice Act 2006. We are also taking the opportunity to introduce some further necessary changes to ban the widespread licensing of handguns and the development of undesirable shooting practices. The Bill will improve in practical terms the operation of the European arrest warrant system. It also gives powers to the Garda Síochána and to the staff of the Revenue Commissioners to exchange information with other states who are party to the Schengen information system.
Some of the other changes envisaged in this Bill are technical in nature, but it is important none the less for the criminal justice system that they are legislated for and that the proposed amendments are dealt with to the satisfaction of the Oireachtas. I welcome the contribution of all sides on this matter and I commend the Bill to the House.
