Seanad Éireann debate -
Wednesday, 5 Nov 2014

Vol. 235 No. 5

Criminal Justice (Mutual Assistance) (Amendment) Bill 2014: Committee and Remaining Stages

Sections 1 to 35, inclusive, agreed to.

NEW SECTION

Senator Trevor Ó Clochartaigh

I move amendment No. 1:

In page 29, between lines 32 and 33, to insert the following:

"36. Data may not be transferred to another jurisdiction for the purposes of it being used against an individual who has already stood trial and been acquitted in this jurisdiction."

Tá mé ag cur na leasaithe seo chun cinn ar an mbunús céanna leis an mBille a chuaigh roimhe maidir le cúrsaí fáisnéise agus cúrsaí eolais agus mar sin de, go bhfuil amhras orainne i Sinn Féin go mb'fhéidir go mbainfí mí-úsáid as an eolas seo, go háirithe i gcomhthéacs duine atá tar éis dul os comhar na gcúirteanna agus ar fuarthas neamhchiontach.

Again, it is a similar rationale to the amendment to the previous Bill and I wish to put it on the record again in the context of this Bill. Data collected under this legislation should have to comply with standards in the Twenty-six counties and not those in any other member state. We do not want to see a situation where data being shared in good faith leaves the hands of another member state when it is no longer under the same standard under which it left Ireland. We cannot afford to see an abuse of power by governments in this area. I cite the McBrearty case, in which he was refused entry to the US on the grounds that he had a conviction for an assault when, in fact, that conviction had been overturned and he was found to be innocent of the charges.

We have also seen problems with standards in various police forces. In England, it was disclosed that British files wrongly listed thousands of people as criminals, resulting in many of them being refused employment. It is the same rationale but the question is being put in a different way. What our amendment is actually highlighting here, and what it very specifically cites, is individuals who have already stood trial and been acquitted in this jurisdiction. Why would the Government not accept this amendment? What is the rationale of transferring the data on somebody who has already stood trial and been acquitted in this jurisdiction? We do not see the reason or the logic for that. Perhaps the Minister of State could come back to me on this point.

Minister of State at the Department of the Taoiseach (Deputy Dara Murphy)

As the Senator says, it is a very similar argument to the one he made before, so he will not be surprised to hear me make a similar reply. I am unable to accept this amendment because the grounds for refusal of mutual assistance applications, which are included in this Bill, already make such provisions. I refer the Senator to the provisions in section 14, "refusal to confiscate". For example, section 51B.(1)(c) states, "compliance with the external confiscation order in relation to the offence that resulted in the making of that order would infringe the ne bis in idem principle". "Ne bis in idem" means a person cannot be tried twice for the same crime.

Subsection (e) states, "the criminal conduct concerned was either committed outside the territory of the designated state or committed wholly or partly in the State" and each state only has jurisdiction of offences committed in their own state. This covers part of the Senator's argument. It goes on in section 60E, "Refusal to execute external financial penalty order". Subsection (a) states, "a financial penalty has been made in the State against the defendant in respect of the conduct which has resulted in the making of the external financial penalty order". Subsection (e) states, "the criminal conduct concerned was either committed outside the territory of the designated state or committed wholly or partly in the State". Similar provisions apply in the EU-Japan mutual assistance agreement which, as the Senator will be aware, is very recent.

I also point out that a general provision is already contained in section 6 of the Criminal Justice (Mutual Assistance) (Amendment) Bill, which provides that the relevant international instruments have effect in this State in relation to any requirements to the instrument relating to the protection, disclosure, use or transmission of information or evidence received under it.

It is the view of the Minister, with all due respect to the Senator's arguments, that mutual assistance and existing treaties do give the protections that he is seeking to achieve with both amendments.

Senator Trevor Ó Clochartaigh

I thank the Minister of State. I note that in the first part of his response he spoke about the double jeopardy syndrome. In the McBrearty case that I cited, the information that was given was used for other reasons, namely, to stop somebody from entering the US. We are trying to say that uses could be made of the data that would be unfair and not what the Minister has envisaged. Although I take on board the Minister of State's reassurances, we believe the amendment would copperfasten this right and therefore we will be pressing the amendment.

Deputy Dara Murphy

There is a difference between the legal provisions that would be put in place and instances such as those the Senator has referenced, where mistakes are made. There can and must be an acceptance that no matter what system or legal basis exists, an error can still be made and even the type of amendments he is proposing in both of these Bills would still not remove the possibility of an error occurring.

We have a new EU regulation that is under discussion at the moment. Given the degree to which our world is now shrinking and the ease with which data can be moved through clouds and other technological advances, the view of the Government is that it is within the international treaties and the mutual legal assistance treaties in this case that we must and will proceed.

Amendment put and declared lost.

Sections 36 and 37 agreed to.

Schedules 1 to 5, inclusive, agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.

Sitting suspended at 3 p.m. and resumed at 3.10 p.m.