I move amendment No. 1:
In page 16, before section 23, to insert the following new section:
"23.—The following is substituted for section 44 of the Act of 2003—
"44.—(1) A person shall not be surrendered under this Act if:
(a) the offence specified in the European arrest warrant issued in respect of him or her was committed or is alleged to have been committed in a place other than the issuing state, and
(b) the act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State;
(2) In deciding whether the act or omission of which the offence consists constitutes an offence under the law of the State, the Court shall not have regard to the nationality of the respondent or any other person nor to the particular basis upon which jurisdiction is asserted by the issuing state".".
As I noted on Second Stage of the Bill, I welcome the acknowledgement by the Minister for Justice and Equality that the piecemeal approach to amending the European Arrest Warrant Act 2003 is most unsatisfactory. I also welcome his commitment to initiate a fundamental review of the legislation underpinning our arrest warrant procedures. He acknowledged that certain specific issues arising out of the Supreme Court judgment in the Bailey case have implications for European arrest warrant legislation and stated these will be considered in the context of the overall review. However, we have not been given an indication of the date or timeframe for this fundamental review. Furthermore, the flaw I am endeavouring to address by means of amendment No. 1 is equally urgent to the procedural and technical amendments contained in the Bill.
The ultimate goal of our extradition procedures is to establish a system of surrender based on mutual recognition and respect for the judicial processes and decisions of fellow EU member states, while also ensuring that Ireland is not a safe haven for fugitives from justice. However, having considered the implications of the Supreme Court's interpretation of extra-territorial jurisdiction under section 44 of the European Arrest Warrant Act 2003, I believe Ireland is exposed to that very risk. In discussing the Supreme Court decision in Bailey I do not purport to express a view on the rightness or wrongness of the outcome. The problem that arose in the Bailey case, and which is likely to arise again with the potential for real embarrassment on the part of the State, was that the Supreme Court was tasked with interpreting section 44 and the underlying provision of the framework decision with little or no guidance. In identifying the specific test to be applied in the circumstances of Bailey, which the majority ultimately decided must be informed by the principle of reciprocity, dissenting Mr. Justice Hardiman and Mr. Justice O'Donnell were candid in their criticism of the difficult and obscure drafting of section 44.
As I stated on Second Stage, I do not purport to be an expert in international extradition law which, I am reliably informed, is conceptually the most difficult part of criminal law. I have done a significant amount of research since Second Stage, however, and I understand there are four categories under which extra-territorial jurisdiction dealing with criminal cases generally fall. They are dealt with in some detail in the submission I made to the Minister prior to the debate on Second Stage. For the benefit of my colleagues in the House, I will summarise them as follows: First, the active personality principle whereby prosecution is based on the nationality of the accused; second, the passive personality principle whereby prosecution is based on the nationality of the victim; third, the protective principle whereby prosecution is based on the protection of national interests; and fourth, universal jurisdiction generally where the crime is considered as being one against the international community or international law. Typically, this involves crimes against humanity and piracy on the high seas.
Following the decision in the Bailey case, with a strict interpretation applied to section 44 and the specific statutory provisions that granted the power to prosecute on an extra-territorial basis, the decision to surrender by Ireland will be made solely on the basis of active personality. Therefore when dealing with a requesting state that asserts jurisdiction on the basis of one of the other principles and where Ireland could not prosecute the crime in analogous factual circumstances, surrender would be refused.
The danger therein in terms of Ireland offering a safe haven from justice, is possibly best demonstrated by following a hypothetical case that I put forward today to share with my colleagues. The fugitive is a German national married to a Spanish woman. They live in France and have a ten-year-old daughter who has Spanish citizenship. While on holiday in South Africa, the fugitive sexually abuses his daughter and the offences come to light when the family return to France. The mother takes the child and moves to Spain, while the fugitive then flees to Ireland. Spain purports to exercise extra-territorial jurisdiction in any sexual offences against a minor. This is on the basis of a universal jurisdiction set out in Ley Orgánica del Poder Judicial. The Spanish authorities obviously have a legitimate interest in prosecuting the offence as it was committed against a Spanish citizen. Moreover, there is no reality to the fugitive being extradited from Spain to South Africa to face trial as the prison conditions in the latter country fall well below the basic norms. A European arrest warrant is issued by the Spanish authorities for the fugitive for the extra-territorial child sex offences that occurred in South Africa. The fugitive is arrested in Ireland and contests his surrender. In light of the decision in Bailey, the courts would have to refuse surrender. The only basis upon which the Irish courts can exercise extra-territorial criminal jurisdiction is section 2(1) of the Sexual Offences (Jurisdiction) Act 1996 which bases jurisdiction on the suspect being either an Irish citizen or ordinarily resident here. As Spain bases its jurisdiction on a form of universal jurisdiction and the fugitive is neither a Spanish citizen nor ordinarily resident in Spain, the highly abstract test of reciprocity contemplated by the Bailey case cannot be satisfied.
I put it to the Minister, therefore, that it is open to the Oireachtas to take a view of the extra-territoriality exception other than one based on reciprocity. I believe that the amendment tabled provides the appropriate legislative intervention to do so. The amendment would give much needed guidance to the Supreme Court. It would make the test simpler — one based on the underlying facts of the offence in question, rather than the jurisdiction upon which the extra-territorial jurisdiction is asserted.