I welcome the Minister to the House and also a former Member, Dan Kiely, to the Distinguished Visitors Gallery.
European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Bill 2011: Second Stage
I am pleased to introduce the Bill to the House. Its main objective is to apply the provisions of the European Arrest Warrant Act 2003 to states other than EU member states. It also makes procedural and technical amendments to the 2003 Act and the Extradition Acts 1965 to 2001, and gives effect to an EU framework decision on the mutual recognition of judgments rendered in the absence of the defendant.
Before dealing with the detail of the Bill, I have some general comments on the European Arrest Warrant Act which I would like to share with Senators. I am keenly aware that this is the third Bill to amend the Act since being passed in 2003. It is useful to recall the circumstances in which the EU framework decision on surrender, to which the Act gives effect, was negotiated. While negotiations on a simplified system of surrender between EU member states had been ongoing since 1999, they were given added impetus following the 9/11 terrorist attacks on the United States in 2001. The terrorist attacks not only highlighted the importance of effective EU measures on internal security, but also put enormous pressure on the European Union to produce substantial legislative action in a very short period of time. Thus the European arrest warrant framework decision was agreed to with unprecedented speed. The speed of negotiation and the compromises involved resulted in a somewhat less than perfect final text.
In transposing this instrument into Irish law, Ireland, like other member states, was faced with legislating for a totally new concept of an inter-court surrender process. The Bill was, because of the deadline for entry into force, drafted with some haste and rushed through the Oireachtas. In these circumstances, it is hardly surprising that practical experience of the operation of the European arrest warrant, combined with court interpretations of the Act, meant that from an early stage the need for amendment became clear. The Act was amended in 2005 and 2009 and is once again being amended. I consider this piecemeal approach to be most unsatisfactory. It is unfair to the courts, legal practitioners, our fellow member states and the subjects of European arrest warrants. I have already announced that I am initiating a fundamental review of the legislation which will thoroughly examine our European arrest warrant procedures to see how they can be simplified and streamlined. It is likely that the review will take some time and, in the interim, I am anxious to ensure Ireland is in a position to discharge its international obligations on extradition and surrender. For that reason, I am proceeding with the Bill to make amendments that cannot await the outcome of the review.
The Bill has three main parts. Part 2 allows the European arrest warrant system to be extended to non-EU member states. Part 3 makes a series of amendments to the European Arrest Warrant Act 2003. Part 4 makes a series of amendments to the Extradition Act 1965. I will now deal with Parts 2, 3 and 4 in turn.
Part 2 enables the provisions of the European Arrest Warrant Act 2003, referred to as the European Arrest Warrant Act, to be extended to non-EU countries. The European Arrest Warrant Act gave effect to the EU framework decision on the European arrest warrant. It replaced extradition arrangements between EU member states which were, by and large, conducted on a Government to Government basis with a system of surrender based on arrest warrants issued and executed by judicial authorities. The key element of Part 2 is section 2(1). It provides that the Minister for Foreign Affairs and Trade, following consultation with me as Minister for Justice and Equality, may, by order, apply all or any of the provisions of the European Arrest Warrant Act to a non-EU country where there is an agreement between the European Union and that country on surrender. Any extension of the European Arrest Warrant Act to non-EU countries is subject to some important limitations. Under section 2(3), an order applying the European arrest warrant arrangements to a third country may only be made where there is an EU agreement on surrender in force with that third country. I emphasise that the agreement must be one for surrender as opposed to extradition. I have explained that the European arrest warrant replaced extradition arrangements between EU member states with a system of surrender based on arrest warrants issued and executed by judicial authorities of member states.
For an order to be made under Part 2, the agreement with the third country must be one for a judicial system of surrender. I labour this point because, since the Bill was introduced, there has been much ill-informed comment on this provision, within the Oireachtas and beyond, including, I regret to say, by some members of the legal profession. Members of the House are unlikely to labour under the misapprehensions that have affected others on this provision. Nonetheless, I stress that this provision does not enable the European arrest warrant to be extended by ministerial order to, for example, the United States. There is an EU-US agreement on extradition which is very clearly entitled and worded as such and operates on a Government to Government basis. It is not a surrender agreement and, therefore, does not fulfil the requirement of this section. Similarly, the European arrest warrant cannot be applied under this provision to Albania, Zimbabwe or Thailand — to mention but a few of the countries it has been, somewhat fancifully and completely inaccurately, suggested might qualify.
A surrender agreement requires a high degree of mutual trust between the European Union and the country concerned. There is only one agreement that falls within this provision — the 2006 agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on surrender procedures. Ireland will be in a position to give effect to the agreement when the Bill is enacted. The terms of the agreement are almost identical to those of the framework decision on the European arrest warrant. Rather than repeat these provisions in detail in a separate statute, I have opted for the approach of enabling the provisions of the European Arrest Warrant Act to be extended by order to third countries. One advantage of this approach is that the provisions of the European Arrest Warrant Act are familiar to the courts and practitioners and have been clarified in numerous judgments during the years. Also, I understand agreements similar to the Norway and Iceland agreement are likely to be concluded by the European Union with other countries in the future.
The current approach will allow the terms of the European Arrest Warrant Act to be applied to such countries in the future without further primary legislation.
A further limitation on the operation of this Part is that, under section 2(4), an order applying the European Arrest Warrant Act to a third country must reflect the terms of the agreement to which it gives effect. Part 3 contains a number of amendments to the European Arrest Warrant Act 2003. Since the European arrest warrant system came into force in 2004, the number of European arrest warrants received in and issued by Ireland has increased year on year. I laid the annual report on the operation of the European arrest warrant for 2011 before the Houses recently. It shows that Ireland issued 71 warrants in 2011, up from 51 in 2010, and 36 persons were surrendered to Ireland during the year, up from 26 the previous year. Of these, 31 were surrendered by the UK, with the balance being surrendered by five other member states.
It also shows that Ireland received 384 warrants in 2011, up from 373 in 2010, and that 177 persons were surrendered to other member states in 2011, up from 161 in 2010. Of those surrendered, 113 were sent to Poland and 19 were sent to the UK, the balance being sent to 13 other member states. The offences cited in the warrants included murder, sexual offences, drugs offences, trafficking, assault, robbery and fraud.
As the volume of warrants increases, officials and practitioners gain greater practical experience of the operation of the European arrest warrant system. Also, the courts have had the opportunity to provide important interpretations of the law in their judgments. My Department monitors these developments continually and, in consultation with the Office of the Attorney General, identifies where amendments to the Act could be made to improve the operation of the European arrest warrant.
The amendments in this Part arise from that process. Many of the amendments are of a purely technical or linguistic nature and, rather than detailing all the changes, I will comment on the more substantive provisions.
Section 5 deletes a reference to the EU framework decision from the Act, the reason being to clarify that the framework decision does not have direct effect in Irish law. There are similar deletions in sections 9, 10, 15 and 16.
Section 6 amends the form of the European arrest warrant as part of the transposition into Irish law of the 2009 EU framework decision on judgments in absentia. The framework decision requires that, where the requested person was not present at his or her trial, the European arrest warrant must contain certain information concerning the proceedings. The amendment provides for this.
Sections 9 and 10 contain the most important changes made by this Bill to the European Arrest Warrant Act. These sections amend sections 15 and 16, respectively, of the Act. These sections are the heart of the Act and are critical to the operation of the surrender procedure. They set out the procedure the High Court is to follow in ordering the surrender of a requested person. Section 15 applies to cases where the requested person consents to surrender on foot of the European arrest warrant, and section 16 applies where the person has contested the European arrest warrant. The main purpose of the amendments is to provide a procedure which ensures at all stages in the surrender process the requested person is subject to the supervision of the High Court.
Within the new section 15, subsection (3) allows for the fast-track surrender, with the consent of the person sought, where this fast-tracking does not create operational difficulties. Under this subsection, the central authority, which deals with the administrative and logistical aspects of surrender, may request the court to order that an order for surrender take effect at a date earlier than normal where the requested person consents. The authority will only make such an application where it is satisfied that surrender can be carried out by the earlier date. This replaces an existing provision which allowed the person sought to request that the order for surrender take effect earlier than the ten day period specified. This had created operational difficulties in meeting the time limits specified for the carrying out of the surrender order.
The amended section 15(4)(c) will, I believe, bring greater clarity to the position of a person who is placed in custody on foot of an order for surrender. It provides that where the court orders the surrender of a person, it must also order that the person be detained for a period not exceeding 20 days, by the end of which period the person must normally be surrendered. The current text merely provides that the person be committed to prison pending the carrying out of the order. The amended section 15(4)(d) is important. It provides that if a person is not surrendered by the end of the 20 day period I have just mentioned, the person must be brought before the High Court again as soon as practicable after the deadline passes. Alternatively, if it appears to the central authority that it will not be possible to surrender the person by the deadline, the person must be brought before the High Court before the deadline expires.
The amended section 15(5) sets out the powers of the court in dealing with a person brought before it under the previous subsection. If the court is satisfied the person was not, or will not be, surrendered by the deadline due to circumstances beyond the control of Ireland or the issuing state, the court will, with the agreement of the issuing judicial authority, fix a new surrender date and order the detention of the person for up to ten days after the new date. The new provision will bring the Act closer to the relevant provisions of the framework decision.
A new section 15(5A) is inserted which provides that if the person is not surrendered within ten days of the new date fixed, he or she must be discharged. The new section 15(5B) provides that where the period for surrender has expired and the person has not been surrendered, the person will be deemed to be in lawful custody from the expiry of the period up to the appearance before the court. There will, therefore, be no period in the process in which the person's detention will be other than lawful.
Section 15(7) is new, and it clarifies that it is within the jurisdiction of the High Court to grant bail to a person where an appeal has been lodged to the Supreme Court against an order for surrender. This had been the subject of some doubt and I think it is best to bring legal certainty to the matter.
Section 10 makes a number of amendments to section 16 of the 2003 Act. This section deals with procedures where the person has contested the European arrest warrant. Most of the amended provisions are identical to those in the amended section 15 and I do not propose to take up the time of the House by repeating my comments on the previous section which apply equally to this section.
Sections 11 to 24, inclusive, make a range of changes to the 2003 Act, some which are technical in nature or consequential on changes referred to earlier. I will confine my comments to the more important changes.
Section 11 substitutes the text of section 18 of the European Arrest Warrant Act, which sets out the circumstances and procedure whereby the High Court may postpone the surrender of a person on humanitarian grounds or where the person is being prosecuted for an offence here or is serving a sentence in the State. In the substituted text these grounds are unchanged. However, the new text provides that, where the court has ordered postponement, it shall subsequently make an order ending the postponement when, in effect, it is satisfied the grounds on which it was ordered no longer exist. When postponement ends, the provisions of sections 15 or 16, as appropriate, will apply. Thus, from the making of the order ending postponement, the person is treated as if their surrender had been ordered on the date that postponement ended. I believe this is a simpler procedure than the present system. Most important, it ensures there is judicial supervision of the requested person at all stages of the process which I have highlighted as a key feature of my reform of the surrender process generally.
Section 18 substitutes the text of section 30 of the European Arrest Warrant Act, which deals with cases where both an extradition request and a European arrest warrant are received in respect of a person. The substituted text sets out more clearly my role, as Minister, and that of the High Court, as executing judicial authority for the purposes of the European arrest warrant, in cases where both a European arrest warrant and an extradition request are received for a person. The text more accurately reflects the provisions of the framework decision on the European arrest warrant relating to such situations.
Section 19 amends section 33 of the European Arrest Warrant Act which deals with the issue of European arrest warrants by an Irish court. It simplifies the procedure considerably. The current provisions require that the court be satisfied the person in respect of whom a warrant is sought is not in the State. In practice, this can be difficult to state with absolute certainty and thus the revised provision omits this requirement. As applications for a European arrest warrant can only be made by, or on behalf of, the Director of Public Prosecutions, I believe the DPP should be in a position to request the issue of a European arrest warrant subject only to there being a domestic warrant in existence.
Section 22 amends section 42(b) of the European Arrest Warrant Act which deals with the position where there are proceedings in the State against a requested person. It is a linguistic change recommended to me by the Attorney General in the light of judicial comments on the current wording. The section now provides that a person shall not be surrendered if “proceedings are pending” against the person in the State rather than “proceedings have been brought”. I believe the substituted language is more accurate and precise.
Section 23 amends section 45 of the European Arrest Warrant Act, which sets out the grounds on which the State may refuse surrender if the person to whom the European arrest warrant refers was not present at the trial which led to the sentence being imposed. Again, the amendment is part of the transposition of the European arrest warrant decision on judgments in absentia to which I have referred. The new text provides that in an in absentia case a person will not be surrendered unless the European arrest warrant states the matters set out in the European arrest warrant form as amended by the framework decision. To be absolutely clear as to what is required, the substituted text sets out that part of the European arrest warrant form as a table to the section.
Section 24 substitutes the text of section 45C of the 2003 Act which provides that surrender shall not be refused on the grounds of a technical flaw in an application provided this would not cause an injustice to the requested person. In the substituted text I am further strengthening the protection for the requested person where the provision is applied. The revised text of subsection (b) now provides that where there is a variance between any document grounding an application, and the evidence adduced on the part of the applicant at the hearing of the application, the court cannot apply the provision unless it is satisfied that such variance is explained by the evidence.
I now turn to Part 4 which amends the Extradition Act 1965. The Act provides the statutory basis for our extradition arrangements with countries other than member states of the European Union. As with the amendments to the European Arrest Warrant Act, these arise from operational experience and court interpretations. The most important changes are in section 27, which substitutes sections 15 to 17, inclusive, of the 1965 Act. The existing section 15, which prohibits extradition where the offence is regarded as having been committed in the State, is not being re-enacted. I believe the transnational nature of crime nowadays means that a provision such as this is no longer appropriate. The revised text of section 15 clarifies the position regarding extradition where there are proceedings in contemplation or pending in the State for the same offence as that for which extradition is sought. The revised text of section 16 deals with persons who are convicted in their absence. I believe it is appropriate that we should have such a provision in our legislation. The revised text of section 17 clarifies the position on the refusal of extradition where the principle of ne bis in idem, or double jeopardy as it is commonly referred to, applies. It provides that the question of whether a judgment is final is to be determined by the law of the state where the judgment was handed down.
The other changes in Part 4 are mainly procedural or technical, including changes that should lead to more efficient handling of extradition applications. Section 26, for example, repeals a provision in the 1965 Act on evidence by affidavit and will thus address difficulties in practice in dealing with states whose legal systems do not embrace the concept of affidavits. A further change with a focus on efficiency is section 28, which deals with the documents to support a request for extradition. It provides that a reproduction or copy of the relevant documents will suffice and allows for the inclusion of identification material with a request for extradition, where it is available. In similar vein, section 33 extends the range of documents that can be received in evidence without further proof to include any evidence in writing received from a requesting country. It also enables documents to be authenticated by being signed or sealed by the appropriate authority.
Section 30 inserts a new provision in the 1965 Act which provides the High Court with a general power to adjourn proceedings under the Act and to remand the person sought in custody or on bail in the course of such proceedings. Section 31 inserts a new provision in section 29 of the Extradition Act which provides that a court may make an order for extradition even if there is a technical flaw in an application provided this would not cause an injustice to the requested person. This mirrors a provision in similar terms in the European Arrest Warrant Act.
Section 32 inserts a new section 36A in the 1965 Act which deals with identification material. It authorises the Garda Síochána to fingerprint, palm print or photograph persons arrested under the Act for the sole purpose of verifying the person's identity. Identification material of this type is often sent with extradition requests, and up to now the Garda Síochána had no power to take similar identification material for comparison purposes. The new section sets out the procedure for taking the identification material, including the use of reasonable force where necessary and authorised.
Before I conclude, I would like to say something about the Tobin case which was recently decided by the Supreme Court. As the House will be aware, the tragic case related to the death of two young children aged just two and five years in Hungary. It was an appalling case and I know that all Members will feel great sympathy for the children's parents who have suffered such immeasurable loss.
I will address the practicalities of the case. Ultimately, decisions in relation to surrender under the European arrest warrant system are a matter for the courts. This particular case has been before the Supreme Court twice. The Hungarian authorities issued a European arrest warrant in respect of Mr. Tobin in 2005. Surrender was refused in the High Court on the basis that Mr. Tobin had not fled the jurisdiction which was a requirement of the Act at that time. The State appealed the decision to the Supreme Court which affirmed the High Court decision.
As a consequence of the Supreme Court decision, the legislation was amended to remove the fled requirement in respect of persons sought to serve a sentence in the issuing state. The fled requirement was removed on legal advice as it was an elaboration in Irish law that was not mandated by the framework decision on the European arrest warrant. Once the Act was amended, it was open to the Hungarian authorities to issue another European arrest warrant in respect of Mr. Tobin. The High Court ordered the surrender of Mr. Tobin to Hungary based on the new warrant, but this was appealed to the Supreme Court. The Supreme Court reversed the findings of the High Court and refused to surrender Mr. Tobin, holding that to do so, following the previous proceedings in which he was successful, would amount to an abuse of process and that, under the Interpretation Act 2005, which limits the retrospective application of amended legislation, the amendment to the European Arrest Warrant Act 2003 did not apply to Mr. Tobin. The House will appreciate that in those circumstances, no further action is open to me in relation to securing the surrender of the person concerned.
In recent days the Hungarian Minister for Justice has written to me reiterating his concerns, and there has been some contact with the European Commission about the matter. There will be ongoing contacts in this regard but I would be doing a disservice to a family which has suffered so much if I were to hold out any hope that their wishes can be met. I greatly regret there is no further appropriate action that can be taken under Irish law.
That concludes my narrative on the Bill and I commend it to the House. I appreciate the Bill and its contents are matters of some complexity, particularly in the context of the trilogy of legislation that exists in this area. I hope Members of the House will support the principles behind the Bill and I look forward to hearing what they have to say.
As far as this side of the House is concerned, we broadly support the Minister's proposals and welcome him and the legislation to the House. I shall not say a lot about the legislation.
The Minister referred, in his concluding remarks, to the tragic Tobin case which has some important legal and jurisprudential implications as far as this country is concerned. I ask the Minister, perhaps not in his response today but at the next Stage, to consider the implications, if any, of the legislation for the extradition warrant applied for in the case of the unfortunate and unsolved murder in west Cork of Ms Sophie Toscan du Plantier. The High Court envisaged the extradition of Mr. Bailey but it was reversed in the Supreme Court. I am not quite sure how it fits into this legislation or if the case has implications for it. If there are implications or concerns, perhaps the Minister would be kind enough to address them at some stage during the passage of the Bill. I know extradition is a complex area of legislation and of law. On behalf of the Fianna Fáil group in the Seanad, I support the legislation and wish it a speedy passage.
I welcome the Minister to the House. He is becoming the most frequent ministerial visitor and is bringing forward a substantial amount of legislation. I expected a ten to 15 minute contribution from Senator Denis O'Donovan and would have had time to pause, think and, perhaps, write but I have been left in the lurch by the Senator.
The Minister concluded his contribution with a reference to the Tobin case. I appreciate the sensitivity of the case and that it is on the road from a legal perspective. If the case was in reverse and we were seeking to pursue a case about a Hungarian citizen in Dublin we would be disappointed if no further action was necessary. While we must respect the decision of the Supreme Court it would be appropriate to extend our sympathy to the family in Hungary.
The Minister has provided a thorough trawl of the intricacies of the various pieces of legislation. Perhaps his most interesting comment, arising from his general unhappiness with the complexities and workings of the European arrest warrant system, is that he will bring forward a more substantial Bill and in a sense the Bill is an interim measure. Presumably, in this term of government we will hear his more substantial response. We are dealing with important legislation. We must recognise, in so far as the Minister and the House are concerned, this is a work in progress and not the finished work.
Any legislation dealing with extradition can be emotive. The issue has always been emotive in this and the other House. It is also complicated and detailed. In his contribution the Minister mentioned the rush to action which occurred after 11 September 2001. That is not only in respect of extradition law but societies and governments all over the western world were pressed into action and various laws, judicial and financial, were put in place as part of what became known as the war on terrorism. Much of it was necessary but some of it may have been over the top. A decade later we must begin to examine some of the legislation which, of necessity, was introduced in haste and rushed legislation is not always perfect.
European arrest warrants have served their purpose. We are debating the legislation with its European flavour while simultaneously other Ministers are liaising with the EU in respect of financial and banking matters. With the broader coming together of the EU as a political entity there is also the judicial side. Obviously the final version of the legislation will show where we stand in our relationship from a judicial point of view with our fellow EU governments and the additional opportunities which the Bill offers.
In examining extradition cases, we must ensure citizens are treated fairly and in a transparent fashion, that there is significant evidence and no rush to judgment. On the other side of the equation, notwithstanding that September 2001 is more than a decade ago, we must recognise that with each passing year and decade, new and more vicious forms of criminality, terrorism and threats not only to citizens but to states are occurring and there must be a robust response. The European arrest warrant is part of the necessary response and we must be supportive of it. In that regard, the Minister has given an indication that he has issues with the legislation put in place ten years ago and will reflect on it and present a more comprehensive Bill. I support the Minister's intention to progress the issue and to move on. I am sure it will be the majority view of the House that the legislation be approved.
I welcome the Minister.
The purpose of the framework decision on the European arrest warrant is to create a common area of security, freedom and justice within the European Union. One of the corollaries of the free movement of persons within the EU is that there should also be free movement of judicial decisions whether they are in the form of sentences, convictions or decisions to institute criminal proceedings. It is important to avoid the creation of places within the EU where there is a perception that the country in question is a safe haven for fugitives from justice. I recognise that by enabling the provisions of the European Arrest Warrant Act 2003 to apply to states other than EU member states, we are reducing to some extent the chance of that happening. I also recognise that there are a number of criticisms and shortcomings around the legislative framework governing the European arrest warrant procedure. I welcome the Minister's acknowledgment in his opening remarks that the piecemeal approach to amending the European Arrest Warrant Act 2003 is unsatisfactory and I further welcome his commitment to initiate a fundamental review of the legislation and to thoroughly examine European arrest warrant procedures to determine how they can be streamlined and simplified.
I have received a lengthy submission in respect of the extraterritorial exception under section 44 of the 2003 Act. A concern has been raised about the manner in which section 44 is drafted — this may be what Senator O'Donovan mentioned — and its application to future cases, particularly in light of the recent Supreme Court decision in the Minister for Justice Equality and Law Reform v. Bailey, which was delivered on 1 March 2012. I do not purport to make any comment on the rightness or wrongness of the decision in the Bailey case nor do I purport to be an expert in international extradition law.
However, I am interested to explore the contention made in the submission that the very strict interpretation of extraterritoriality, based on the principle of reciprocity, whereby it is not open to the State to surrender a person for an extraterritorial offence unless the offence can also be prosecuted in Ireland on an extraterritorial basis, gives rise to the possibility of Ireland being a safe haven from prosecution or sentence in certain circumstances. I intend to give the submission further consideration in advance of Committee Stage and I considered it appropriate to mention it today. I will provide the Minister with a copy of the proposed amendment for his consideration because I trust his wisdom to ensure the Bill will strike the appropriate and right balance. This is my only concern.
I welcome the Minister and as Senator Bradford said he is a regular visitor. I also welcome the Bill. The only note of non-welcome is that the Bill commenced in the Dáil rather than in this House. It is much appreciated that the Minister has commenced many justice Bills in this House and we hope he will continue to do that.
Like Senator van Turnhout, I appreciate the Minister's comments on the piecemeal nature of legislation in the area of extradition and European arrest warrant procedures. It is a matter of concern that already there have been Bills on this issue. In that regard, I very much welcome the Minister's indication that a comprehensive legislative review is ongoing. I understand he was asked in the Dáil about a timeframe for that review. Is he in a position today to indicate when it is likely to be produced? I accept his point that he did not wish to await its completion before bringing forward this Bill.
The Minister has acknowledged criticism by interested parties, including lawyers, of certain provisions in the Bill. It is important to note that those critiques come out of a genuine concern to ensure the legislation includes adequate safeguards. This is particularly important given that the extension of the 2003 Act on foot of this Bill will be done by ministerial order rather than primary legislation. However, as the Minister observed, there is High Court supervision throughout the process and section 37 of the 2003 Act is not amended by the Bill.
I appreciate the Minister's reassurance as to the countries to which the 2003 Act will not be applicable, including Thailand and Zimbabwe. Will he indicate which countries are likely to be included? It is envisaged that similar agreements to that in place with Norway and Iceland are likely to be concluded by the European Union. I am conscious here of the important proviso that the European arrest warrant procedures will apply only to those countries where an agreement has been made with the Union. I understand that the Bill, once it comes into force, will apply only in respect of Iceland and Norway at this stage. In other words, it will initially allow for surrender procedures to take place only between EU states and Iceland or Norway.
I am also grateful for the Minister's clarification regarding the Tobin judgment, which, as he observed, is a deeply tragic case. We all feel great sympathy for the parents in Hungary who lost their two small children. It is an unbearable thought. However, the decision on 19 June 2012 was the second Supreme Court judgment in the case and it seems there is no further legal process available in this matter.
Like Senator Jillian van Turnhout, I wish to address the other recent decision in this area, namely, the Bailey decision by the Supreme Court on 1 March 2012. Was any consideration given to addressing aspects of that judgment in this Bill? Senator van Turnhout and I have copies of a submission which very usefully points to certain aspects of the judgment which might well be addressed by amending legislation, whether in this Bill or in the comprehensive review to which the Minister referred. On foot of the Bailey decision, the principle of reciprocity was found to preclude surrender where the executing state was in a position to or would have been in a position to arrest and prosecute for the offence but on a different jurisdictional basis. The reference to "different jurisdictional basis" was set out in the judgment as being, under Irish law, the existence of extraterritorial jurisdiction to prosecute an Irish citizen who commits a murder abroad. In contrast, French law was found to allow for the prosecution of a person who murdered an Irish citizen abroad. That difference essentially led to the outcome of the case.
The critique of the judgment suggests that the principle of reciprocity should have been bypassed on foot of the EU framework decision. It is not expressly included in the 2003 Act despite having heretofore been a general principle of diplomatic relations. Has the Supreme Court decision in the Bailey case effectively brought us back to a reciprocity position and, if so, should we now legislate to deal with the outcome? I accept this may not be the appropriate Bill in which to deal with that question, particularly as it is concerned with a much narrower issue. Will the Minister indicate whether it will be dealt with in more detail in the comprehensive review?
On the concept of the European arrest warrant more generally, we have had some very useful academic commentary on developments at EU level in criminal law. Professor Dermot Walsh, for example, has spoken about the origins and development of a European criminal process and the movement towards a more transnational approach to criminal processes. Much of this is to be welcomed given the transnational nature of criminality. As the Minister observed, it is very important that we recognise that just as people are seeking surrender from Ireland, we are equally seeking surrender to Ireland in order to pursue criminal proceedings in this State. There is a mutuality within the European arrest warrant procedure that is sometimes overlooked by its critics. Nevertheless, as Professor Walsh and others have set out, there always must be a concern to ensure adequate safeguards are in place where there is a move towards transnational criminal processes and transnational criminal jurisdiction. We must all remain conscious of that in debating legislation dealing with European-level arrest warrant procedures or procedures more generally. The developments in regard to Europol and Eurojust, for instance, demonstrate the huge changes in recent years at European level in what was always seen in the past as very much a domestic matter of jurisdiction. I welcome the developments at transnational level. They are inevitable given the increasingly transnational nature of crime, but we must always ensure there are adequate safeguards in place.
I welcome the Bill and look forward to supporting it through the House.
Cuirim céad fáilte roimh an Aire. Maraon le daoine eile, ba cheart dom é a mholadh as chomh flaithiúil is atá sé lena chuid ama ag teacht go dtí an Teach. B'fhéidir go gcuirfeadh sé focal isteach i gcluas an Taoisigh agus an bealach anall a thaispeáint dó ceann des na laethanta.
The purpose of this legislation, as I understand it, is to extend the provisions of the European Arrest Warrant Act 2003 to states other than designated EU member states. While the Minister claims this is a mere technical provision, he is aware of our concerns regarding the 2003 Act. Put simply, our position is that while that legislation is necessary, the safeguards in place in terms of human rights and the right to due process are not adequate. Therefore, in the absence of reform of the arrest warrant legislation generally, we cannot support this Bill.
We are far from alone in having such concerns, with reservations also being expressed by the Human Rights Commission, which provided a submission on the original legislation; Fair Trials International; the Council of Europe's Commissioner for Human Rights; and by Irish MEPs at a recent plenary session of the European Parliament on the subject. The cause of concern in all cases is the view that the original Act diminished some of the protections for individuals regarding extradition or surrender and, in some cases, could violate their human rights. As the Human Rights Commission has noted, the EU framework decision which gave rise to the European arrest warrant was based on a flawed presumption of effective and equivalent protections of accused persons' rights between EU member states. For the system to be effective, we must place full trust in the standards and procedures of other EU states and, if this Bill is passed, in third-party states.
We are in favour of working with other states. As things stand, however, the European arrest warrant system is neither robust enough nor human rights centred. It is worth noting the comments of Mr. Thomas Hammarberg, the Council of Europe's Commissioner for Human Rights, when he discussed the application of European arrest warrants last year. He stated:
There has, however, been repeated criticism of the manner in which the EAW has functioned in a number of concrete cases. This criticism must be taken seriously. Human rights organisations have expressed concerns about the imprisonment of innocent persons, disproportionate arrests, violations of procedural rights and the impossibility in some countries for an innocent person to appeal against a decision to be surrendered . . .
The EAW has been used in some cases for which it was not intended, sometimes with harsh consequences on the lives of the person concerned. It is thus high time to reform a system that affects thousands of persons every year.
I entirely concur with his assessment, particularly when one considers that some 50,000 arrest warrants have been issued.
Closer to home, and more recently, we had observations on this issue by one of our most senior judges, Mr. Justice Hardiman. In the case of the Minister for Justice and Equality v. Tobin, which judgment was delivered on 19 June, Mr. Justice Hardiman noted that the origins of the European arrest warrant are a long way from what we now have. He stated:
This confusion is not surprising because when the European Arrest Warrant "Framework Document" was first drawn up in 2001 it related exclusively to Terrorist offences. It was subsequently, in the ten day period immediately after the 9/11 outrage in New York, extended to a great number of other offences many of which are not offences of specific intent at all. Again, I do not think that this aspect of the European Arrest Warrant arrangements are widely known, or were widely or clearly explained at the time.
I would also note his comments on the application of the European arrest warrant in Irish courts generally. Of the authorities, he said:
I cannot acquit them of a desire to be seen to be almost slavish in conforming with the obligations of a subscriber to the Framework Document, and a member of the European Union, as they conceive them to be. It is this attitude, it appears to me, that has rendered them willing to extradite or deliver Irish people, or people who happen to be in Ireland, to other countries who would not deliver their own citizens if the positions were reversed. It has also rendered them gravely insensitive to the human rights of a person in the position of Mr. Tobin and his family.
I believe this should give us pause before we contemplate extending this legislation. The reforms that are needed are clear. We need to allow states to refuse a surrender when it is felt that the fundamental rights of the individual are not guaranteed. The surrender of a person subject to a European arrest warrant can be deferred until the state seeking extradition is trial-ready. Lengthy periods of pre-trial detention are not satisfactory. The misuse of European arrest warrants for minor offences needs to be curbed and there must be a proportionality test for assessing the warrants to prevent the possibility of an infringement of the human rights of the individual being sought. Proportionality is rightly recognised as a fundamental principle of EU law and it must be applied to the European arrest warrant system.
As I stated at the outset, a system such as this is needed to provide for extradition or surrender from one country to another, particularly with regard to serious crime. However, such a system must be robust and human-rights compliant. In the absence of such safeguards for the European arrest warrant, we cannot possibly support the extension of the 2003 Act.
I welcome the Minister to the House. I also welcome this legislation because it is important that we provide support to the system, not only in our own jurisdiction but in other jurisdictions where offences have been committed and where there is clear evidence of same. The Minister gave a very comprehensive overview of the Bill this evening. We received 284 warrant requests last year and sought 71 warrants ourselves. At a time when people can travel so freely, it is important that where someone has committed an offence, procedures are in place to ensure that he or she cannot escape by crossing the border into another country, particularly as borders have virtually been abolished within the European Union. One can now travel from the Dingle Peninsula to the border with Russia without any restrictions. Therefore, if we have that freedom, there must also be checks and balances to ensure co-operation among member states, which is what this legislation is about. The legislation provides those checks and balances and ensures that proper procedures are followed by the country seeking the transfer of an individual as well as the country that is asked to execute the warrant and see that the individual is brought to account for any offence he or she may have committed.
While the High Court has primary responsibility for dealing with European arrest warrant cases, there is a right of appeal to the Supreme Court. This concerns me, given the volume of work that is required in these cases. The Court of Criminal Appeal deals with criminal appeals but the Supreme Court currently deals with appeals in civil, commercial and family law cases. The volume of appeals going to the Supreme Court is already enormous. Under the legislation before us, the Supreme Court is the ultimate court of appeal in these matters. This issue must be dealt with. Recently, a colleague told me about a person who was waiting quite a while for a family law matter to come up for hearing in the Supreme Court. The court eventually dealt with the matter but reserved judgment on costs, and 12 months later, the issue of costs has still not been decided. This gives us an idea of the extent of the delays. It is not that the Supreme Court wants to avoid dealing with the matter but rather that it has not done so because of the volume of work it is dealing with. The Minister made reference in his speech to the number of European arrest warrant cases being dealt with at present and it is clear that quite a number of such cases will end up before the Supreme Court, which is a cause for concern. However, on a general level, I believe the legislation is the correct way forward.
The Minister stated that this is just one step in the process of bringing forward more comprehensive legislation. This legislation is important in assisting us when we seek co-operation from other countries in bringing people to trial for offences committed here and also when other countries seek our assistance. The Minister has incorporated the necessary checks and balances into the Bill.
I disagree with the last speaker, as we have seen clear evidence that where our courts are not satisfied that all proper procedures have been followed, they will not issue the appropriate order. The Minister referred to a case in which amending legislation was enacted but the court decided it would not follow through because the matter had already been dealt with. All of the necessary checks and balances are in this legislation and it is correct that we go forward with it. However, we must deal with the issue of European arrest warrant appeals from the High Court to the Supreme Court to determine whether they can be dealt with in a different manner from other appeals. I note that the current Chief Justice has raised the possibility of establishing a court of appeal before cases are sent to the Supreme Court so that only matters of real importance end up in the highest court. I am not sure whether that could be done in this case. It probably cannot, but the issue must be examined because of the volume of work the Supreme Court is required to do. I ask that this matter be taken into account in the drafting of legislation in future.
I thank all the Senators who contributed to the debate and thank those in particular who are supportive of the Bill. I will come shortly to Senator Ó Clochartaigh's contribution, as he is the only member of the Seanad who is opposed to this measure. Senators raised a number of issues which I will address in no particular order. Mention was made of the Tobin case, to which I made reference in my speech. This case was a great tragedy for the family concerned in Hungary. I can absolutely understand how they are very distressed at the manner in which matters turned out within this jurisdiction. There are no words of consolation or sympathy that can be expressed that could relieve the pain and heartache they have experienced as a consequence of what happened. Tragically and sadly, nothing further can be done within this State to address the matter. As I said in my speech, I am happy to engage with my colleague, the Hungarian Minister of Administration and Justice, in any discussions he wishes to have with me, but we operate under the rule of law and under a constitutional system in which our courts make final decisions in these areas. It is my judgment and understanding that now that the matter has been dealt with in the Supreme Court it cannot be reopened. However, I very much share and understand the concerns and the pain that must be felt by the family who were so tragically and appallingly bereaved.
The issue of the Bailey case — or the du Plantier case, as it was also referred to — was also raised. A number of issues arise out of the Supreme Court judgment in that case. This legislation was at an advanced stage when the more recent judgment was delivered. The implications of that judgment on the European arrest warrant legislation will be considered in the context of the overall review that is being conducted. It is urgent that this legislation be enacted in its current form so that we can meet our international obligations. I was anxious to ensure, as far as possible, that the legislation be enacted before the summer recess. More complex issues arise out of that case in respect of which consideration is required. We will return to those issues when we have completed our deliberations on the review.
Senator van Turnhout provided me with an analysis of some aspects of the legislation. I have engaged in a preliminary examination of that and, again, some of the matters to which it refers relate to the review. I will certainly examine her analysis further prior to Committee Stage.
There is an ultimate issue of concern here which most Senators understand. It is clear, however, that it is beyond Senator Ó Clochartaigh's comprehension. The essence of that issue is that those who engage in criminality can travel freely from one part of Europe to another and from one side of the world to the other. It is very important that the State should ensure those who commit criminal offences in this country and then flee to other jurisdictions should be capable of being returned here and brought before the courts. Freedom of movement is guaranteed within the European Union but there is a co-operative architecture in place among member states which ensures those who flee from one jurisdiction to another to avoid criminal prosecution can — through a proper system — be surrendered and returned to the jurisdictions from which they came.
I listened to the contribution of Senator Ó Clochartaigh and to those of his colleagues in the Dáil. It appears Sinn Féin believes the legislation to purely be about our surrendering individuals who have committed crimes in other states. Some very serious crimes have been committed in this State. Without this legislation working properly, those who engage in serious crime would not be brought to justice. In circumstances where we expect our European Union colleagues to return to this jurisdiction those individuals who have engaged in criminality here and then fled abroad, we must reciprocate and return to their jurisdictions people who have engaged in criminality there.
I wish to revert to my speech to note the fact that the offences cited in warrants issued under the existing legislation included "murder, sexual offences, drugs offences, trafficking, assault, robbery and fraud". It is not possible to state that one is in favour of ensuring those who engage in criminality are brought to justice while also claiming that one is opposed to them being surrendered and returned to this State from another European Union member state or vice versa. The approach in that regard seems to be that we will have a little bit of law and order but not too much. Based on Sinn Féin’s philosophy, safe havens would be created in every other European Union member state for individuals who engage in criminality in this country. In essence, this would facilitate such people in avoiding being brought to justice. It is time Sinn Féin got its act together, moved away from ideological and anachronistic perceptions and understood the reality that exists.
In the context of Sinn Féin's historical past, there has always been visceral dislike of anything to do with surrender or, to use the phrase which used to apply in all of these areas, extradition. Sinn Féin sees what is proposed here as a threatening concept. However, it does not relate to threatening anybody. Rather, it is about protecting the victims of crime, bringing to justice those who engage in serious criminality and doing this on the basis of partnership and co-operation — under the rule of law — with supervision by our courts in a European Union context.
Sinn Féin cannot have it both ways. Its representatives cannot stand up in this House or the Lower House and shout about giving the Garda more resources and getting the criminals off our streets and then on other occasions state that the latter should be allowed to run free around Europe and should not be surrendered and returned to this jurisdiction.
In fairness, that is a misrepresentation.
We cannot allow this country to become a safe haven for every murderer, bank robber, fraudster and drug overlord from other states throughout Europe.
On a point of order——
That is the reality of the Senator's statement.
Senator Ó Clochartaigh, on a point of order.
The Minister is completely misrepresenting what I said and I ask him to retract his statement.
That is not a point of order.
I still ask that the Minister retract his statement because it misrepresents what was said.
It is not a point of order.
It is unfortunate that when one cuts through the rhetoric and talks about the reality of the implications of what Sinn Féin has to say in this House and in the Lower House, people do not like it. It is grand when one is talking about theory. The reality is exactly as I have explained it. If Sinn Féin wishes to vote against this measure, as it did in the Lower House, it is basically saying it favours this State becoming a safe haven for those who engage in murder, fraud——
That is absolute rubbish and the Minister knows it.
——robbery and assault right across Europe——
The Minister is talking rubbish.
——and for the drug gangs which operate there. That is the reality.
This is absolute rubbish.
In the context of human rights, there is an important provision for which our Human Rights Commission expressed support and which is contained in the European Arrest Warrant Act 2003. Obviously, the Senator is not familiar with that particular provision. The provision to which I refer is contained in section 37 of the Act. It states:
(1) A person shall not be surrendered under this Act if—
(a) his or her surrender would be incompatible with the State’s obligations under—
(i) the Convention [namely, the European Convention for the Protection of Human Rights and Fundamental Freedoms], or
(ii) the Protocols to the Convention,
(b) his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38(1)(b) applies) [this is a technical issue on which I will not comment],
(c) there are reasonable grounds for believing that—
(i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his or her prosecution or punishment in the issuing state for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or
(ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less favourably than a person who—
(I) is not of his or her sex, race, religion, nationality or ethnic origin,
(II) does not hold the same political opinions as him or her,
(III) speaks a different language than he or she does, or
(IV) does not have the same sexual orientation as he or she does,
(iii) were the person to be surrendered to the issuing state—
(I) he or she would be sentenced to death, or a death sentence imposed on him or her would be carried out, or
(II) he or she would be tortured or subjected to other inhuman or degrading treatment.
There is, therefore, an express provision in the 2003 Act of which the Senator appears to have absolutely no knowledge. In the context of the case he cited — the Tobin case — and the very tragic consequences for a family in Hungary following the death of their two children, it was the oversight of our courts which resulted in the individual concerned not being surrendered to the Hungarian authorities. Whatever one's view of that matter, it confirms the importance of court oversight based on constitutional provisions, the rule of law and human rights. Effectively, the section of the 2003 Act to which I refer clearly sets out where matters stand.
Senator Bacik raised the very interesting question of the other countries with which the European Union may conclude agreements and to which, consequently, the European arrest warrant may apply in the way it already applies to Norway and Iceland. As I understand it, discussions are taking place on this matter at European level. The countries to which it may very well be extended include Andorra, Liechtenstein and Switzerland. It is not possible to be conclusive in respect of this matter because I cannot predict how matters might develop or what agreements may be entered into in the future. However, a double-lock protection exists in that there must be a European Union agreement based on certain principles to which the European Convention on Human Rights would apply. Subsequent to the making of such an agreement, the arrest warrant provisions would apply through the making of ministerial orders. There is no major issue or difficulty with regard to that aspect of the matter.
This is very important legislation. It is important that we ensure we can meet our international obligations in the manner in which we apply the measure in the context of the issue raised by Senator Colm Burke. There are concerns about the extent of the backlog of cases in the Supreme Court and there is enormous pressure on the court as a result of the proliferation of litigation and the number of appeals coming from the High Court. In recent years there has been a substantial increase in numbers within the High Court, but there has not been a proportionate increase in numbers within the Supreme Court. It is part of the programme for Government that legislation will be enacted to provide for a civil court of appeal and constitutional issues will have to be addressed in that context, with, possibly, a unified and separate system of family courts. Work is being done on that issue, on which, ultimately, a referendum will be required. The intention is that work will be completed to facilitate the holding of a referendum in 2013. It is more likely to take place in the second half of 2013 because of the burden and privilege that will arise from our holding the Presidency of the European Union for the first six months of the year. Clearly, it would not be a good idea to hold a referendum in the middle of the Presidency. My intention is to address the issue in the autumn of 2013 and that a substantial amount of work will be done in advance. Serious work has commenced and it may be that some issues arising from it may be the subject of a conference later in the year to ensure maximum consultation on the referendum that may need to be held and the structure of the new courts system.
I thank Members for their interesting, constructive and supportive contributions. I look forward to taking Committee and Report Stages and would appreciate the co-operation of the House in that regard. I hope to achieve the objective of enacting the Bill before the summer vacation commences.
When is it proposed to take Committee Stage?
When is it proposed to sit again.
Tomorrow at 10.30 a.m.