European Arrest Warrant (Amendment) Bill 2022: Second Stage

Question proposed: "That the Bill be now read a Second Time."

Minister of State at the Department of Justice (Deputy James Browne)

I am pleased to bring the European Arrest Warrant (Amendment) Bill 2022 before the House on Second Stage. The Bill aims to address issues raised by the European Commission in infringement proceedings with regard to the State’s transposition of Council Framework Decision 2002/584/JHA on European arrest warrants and the surrender procedures between member states. Enactment of the Bill will ensure that Ireland will not be referred to the European Court of Justice and it will allow for the closure of the European Union infringement case.

The Bill also makes a number of additional amendments to the existing European Arrest Warrant Act 2003 in order to ensure the continued efficient operation of the European arrest warrant system in this State.

By way of background, any EU member state may use the European arrest warrant system to seek the return of a person who is wanted in that member state in relation to a crime. The warrant may be used to seek the return of the person to stand trial, face sentencing after conviction, or serve a sentence already handed down by a court in that country.

The original European Arrest Warrant Act 2003 transposed EU Council Framework Decision 2002/584/JHA and came into effect on 1 January 2004. It replaced the previous extradition process between EU member states with a much faster and more simplified system that has been very successful and is regarded as vital in the fight against crime within the EU.

The 2020 report of the Irish central authority on the operation of the European arrest warrant, published by my Department earlier this year, noted that arrest warrants received and issued during 2020 cited a wide range of offences. Among the principal offences cited were murder, grievous bodily harm, sexual offences including rape and sexual abuse of children, drug offences, robbery, assault, fraud, and human trafficking. This shows the full scope of serious offences that can be subject to effective criminal law enforcement as a result of the arrest warrant system. The State executed 91 orders for surrender in 2019, involving 79 individuals. In addition, 47 individuals who were the subject of Irish-European arrest warrants were surrendered to the State in 2020.

Senators may wish to note, notwithstanding the departure of the United Kingdom from the EU in early 2020, there is still a European arrest warrant regime in place as a result of the EU-UK Trade and Cooperation agreement. The UK remains the state which is the source of both the highest number of European arrest warrants received and issued by the State by far. A total of 262 warrants were received from the UK in 2020, and a total of 105 warrants were issued by Ireland to the UK.

I will briefly mention some of the main provisions of the Bill. Section 4 amends section 10 of the 2003 Act setting down the general provisions on the obligation to surrender persons on foot of an arrest warrant. The aim is to reflect, as unambiguously as possible, the requirement that a person will be arrested and surrendered by the State to the state that sent the arrest warrant, known as the issuing state, where a criminal prosecution will be or is being brought against the person concerned.

Section 4 was drawn up in parallel with section 26(a) of the Bill, which provides for the repeal of section 21A of the 2003 Act. Section 21A, as it stands, requires the High Court to refuse a surrender request where a decision has not been made to "charge the person with, and try him or her for" an offence. The Commission’s view is that section 21A currently represents an additional mandatory ground for non-execution of a warrant that is not provided for in EU law. On legal advice, it is proposed to accept this approach and thus delete section 21A.

I am advised that the State will still be able to rely on section 10 of the 2003 Act to provide a similar safeguard, as the language used has a clear legal basis in Article 1 of the framework decision, which provides that a European arrest warrant is issued with a view to the arrest and surrender “of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”.

Section 7(a) provides that there is certainty with regard to the full release of individuals who are on bail where an arrest warrant is not produced in court on the required date. Section 7(b) provides that any such release does not prejudice any potential rearrest and surrender and provides that a standard notice is to be added to the Schengen information system to reflect the fact that release has taken place. The Schengen information system is the EU-wide system for security and border management which is administered in Ireland by An Garda Síochána.

Section 8 inserts a new section 14A into the 2003 Act, providing for the temporary transfer of the person who is the subject of an arrest warrant to the issuing state, under conditions agreed by the High Court and the judicial authority in the issuing state. Subsections (4) to (6) provide for an alternative to that temporary transfer where the person who is the subject of an arrest warrant can be heard by a court in the State on the basis of a request made by the issuing state. Senators may wish to note that my Department is currently in contact with the European Commission to confirm the exact nature of the legal changes required in this regard. Accordingly, this section is likely to be the subject of amendment on Committee Stage.

The purpose of sections 9 and 10 is to align the timelines in the 2003 Act for the making of the High Court decision on the arrest warrant and the surrender of the requested person with the relevant provisions in the EU framework decision. The effect of the changes is that there will be a need for more expeditious processing of arrest warrant cases in this jurisdiction, based on the requirements of the EU framework decision.

A consequential amendment is made in section 11, providing that failure to adhere to the revised timelines for processing an arrest warrant for any reason does not constitute a ground to refuse to surrender a person and does not preclude the continued detention of the person under the 2003 Act. This reflects the case law of the European Court of Justice, which requires that the deciding court must always retain the capacity to process arrest warrant cases to finality.

Section 15 relates to the operation of the “rule of specialty” in the 2003 Act. This rule is codified in international extradition treaties and states that an extradited person shall not be proceeded against, sentenced, detained or reextradited in the requesting state for any offence committed before surrender other than the offence for which extradition was granted. At present, this rule may be waived by the High Court where certain criteria are met. Section 15 provides that the High Court "shall", not “may”, waive the rule of specialty where the criteria are met, as provided for by EU law. The section also provides a time limit for the High Court’s decision in this area.

Section 21 amends section 39 of the 2003 Act, which deals with the prohibition on surrender on foot of an arrest warrant due to the person being immune from prosecution or punishment due to any amnesty or pardon. The amendment consolidates the existing provision into one paragraph dealing with all forms of legal amnesty or pardon. In addition, the amendment clarifies that the State must have jurisdiction to prosecute the offence concerned if a person is not to be surrendered due to amnesty or pardon.

Section 24 amends section 45 of the 2003 Act, changing from mandatory to discretionary the power of the High Court to refuse to order the surrender of the person where he or she did not appear at the original proceedings in the issuing state that gave rise to the arrest warrant. The section also provides that the High Court shall arrange for the issuing state to be informed of any request from a person for a copy of the judgment which was the basis for the arrest warrant.

Section 26 provides for repeals, including the proposed repeal of section 37(1)(b) of the 2003 Act. At present, section 37 of the 2003 Act provides that a person shall not be surrendered if doing so would be incompatible with the European Convention on Human Rights, would contravene any provision of the Constitution or would be otherwise discriminatory or against human rights. It is proposed to repeal section 37(1)(b), deleting the reference to a contravention of the Constitution, as this is not provided for in the EU framework decision. I am advised that this is required to align Irish law with the EU framework decision and that the remaining references will still ensure that there is no overall change in the level of human rights protection provided by this section.

Apart from the issue of temporary transfers under an arrest warrant, which I mentioned earlier, I wish to advise that I will be tabling a limited number of amendments to the Bill on Committee stage. These will include amendments regarding procedural rights, such as the right to translation of documents and to be advised of the right to legal assistance.

I look forward to Senators’ contributions on this Bill, which will underpin a more efficient system for the European arrest warrant in Ireland, a system that is central to the fight against crime. I am pleased to commend it to the House and look forward to continuing to work constructively with Senators.

Senator Gerry Horkan

I thank the Minister of State for his comprehensive opening statement in regard to the European Arrest Warrant (Amendment) Bill 2022, which, to be fair, is very much a technical Bill. As was referred to recently by Deputy Catherine Murphy in the Dáil, it is not something that most of us are ever going to have to experience or deal with. Nonetheless, some examples of where it has been used include the cases of a person involved in the Paris terrorist attacks who was caught in Belgium, an attacker of the Brussels Jewish museum who was arrested in France, a failed London bomber who was caught in Italy, a German serial killer tracked down in Spain, a suspected drug smuggler from Malta who was surrendered by the UK, and a gang of armed robbers sought by Italy whose members were arrested in six different EU countries. Therefore, it is a very effective and useful tool in dealing with crime. Certainly, given my perspective and that of Fianna Fáil, it is no great surprise that we are supporting this legislation.

The European Commission launched EU infringement proceedings against Ireland in 2020. It is calling on Ireland to comply with the requirements of the European arrest warrant, in particular the mandatory time limits. In the past, we have failed to comply with the mandatory time limits to execute a European arrest warrant. The Bill provides additional grounds for refusal of a European arrest warrant, which affects judicial cross-border co-operation on criminal matters. It is important legislation and it is timely that the Minister of State is bringing it to us. We need to deal with this. We need to give the authorities across Europe every tool they need to deal with transnational crime and with people who are fleeing one jurisdiction within the EU to another.

As the Minister of State noted, the UK is still involved through the British agreement with the EU on its departure from the EU. From our perspective, that is very important because, as the Minister of State said, the source of most European arrest warrants that we get is the UK and vice versa. This makes sense as the UK is our closest neighbour and we are more likely to have interaction with our closest neighbour than with others. It is useful for both jurisdictions that the United Kingdom is still part of the arrangement. For all of us who want to reduce and be able to deal with crime properly, it is a very important Bill. I commend it to the House.

Senator Tom Clonan

I thank the Minister of State for coming to the House. I commend this legislation. I have an abiding interest in transnational crime within the European space. The Garda Síochána is the primary intelligence agency within the State, although we have new emerging structures. The discussion of this legislation prompts me to comment that we, as a House and a Legislature, need to be apprised of the development of that new intelligence entity within the Department of Justice and the Department of the Taoiseach, in particular any powers that might be assigned to the individual who heads up that new entity. However, that is for another day.

Most of us in this House are old enough to remember the advent of heroin with the Dunnes in Dublin. That was the beginning of transnational crime and it is what the Garda Síochána referred to as “crime ordinary”. Back in the day, crime ordinary was criminal activity that involved traditional housebreaking, public order offences and so on, whereas “crime special” referred to the activities of paramilitaries, subversives and other groups on this island. There was a clear distinction identified within the Garda Síochána between crime ordinary and crime special. However, over the years, as the drugs trade has become more and more entrenched in the Republic and throughout the island, people who would formerly have engaged in activities that were categorised as “crime ordinary” have come to be engaged in tactics and strategies that would be consistent with crime special. Hence the extension of some of our legislation to cover organised crime gangs.

There is a very blurred distinction and, in fact, there is no distinction whatsoever. The United Nations report on international terrorism states that organised crime and terrorism go hand in hand, and that is particularly so on this island. Paramilitaries from the loyalist community, dissident republicans and so on cross over into the activities of organised crime gangs, including drug smuggling and people smuggling, and they will mobilise nationalist and loyalist rhetoric in order to screen their criminal activities.

Something they are interested in is us not having a seamless jurisdiction on this island or the type of interagency co-operation that would be supported by this legislation. It suits them to have a hard border on the island, although that is not something that anyone is contemplating.

They remain a serious and persistent threat to the security of the State. We have seen recent successes by the Garda and its partners in Spain and elsewhere in the arrests of senior figures in the Hutch and Kinahan extended gangs and their repatriation to Ireland. This legislation is important.

I have been in this space since 1989. Due to the rupture between me and the military authorities in 2000 following the publication of my research on the treatment of women within the Defence Forces, I have had to rely as a security analyst on international contacts to inform me about the defence intelligence and security situation, which I have been writing and publishing about for the past 22 years. It is an interesting picture they paint. It differs to a certain extent from the concerns being raised in traditional Irish media, by which I mean the mainstream print and broadcast media. My principal concern about transnational crime, which is integrated both vertically and horizontally throughout the EU and far beyond its borders, is that the main threat to the security of this State resides in elements that are active across the island. For example, the gang responsible for the shooting of Lyra McKee, which rightly attracted a great deal of international attention, was, according to my sources, also involved with the sourcing of a weapon that was used in the murder of a garda in County Louth. These people operate on both sides of the Border and internationally.

Whatever happens on this island in the next ten to 15 years, we must have seamless co-operation across the jurisdictions. We need to plan for the administration of justice, police intelligence and defence intelligence gathering on the island. The Bill covers the European Arrest Warrant and agreements that have been agreed over the years within the EU, but we must be careful that, post Brexit, we do not lose the cohesion and close co-operation that we need with those agencies and services in the UK to ensure that we can guarantee the security of our citizens, particularly in light of what may happen on this island in the next ten to 15 years.

Ireland has not been a net contributor of intelligence for quite some time. One could call that a part of the peace dividend from the peace process. We are net recipients of intelligence and, therefore, we need to be careful that, as we bring forward our newly emerging intelligence structures, they are amenable to oversight by the Houses. That will be crucial.

Senator Barry Ward

I welcome this important Bill. It is also important that we keep up with our obligations to transpose this legislation under our partnerships with other states across the EU.

I will comment on the Bill's structure. As other Senators have acknowledged, it is not a Bill that is likely to be read by ordinary people on the street. I hope that the vast majority of ordinary citizens will never have to interact with extradition procedures. Notwithstanding that, there have been a number of amendments to the European Arrest Warrant Act 2013. This is just another one in that sequence, and to read and understand it, one needs to have a few other Acts in one's hand. A point I have made a number of times in the House in respect of various legislation is that consolidation is an important tool that we have. Without the benefit of the Acts that precede this Bill, it is unreadable. I would favour a situation in which we repealed the preceding versions and re-enacted a consolidated version. That would be more helpful for practitioners as well as anyone else who, for whatever reason, had to interpret the legislation.

It is necessary to recognise the importance of extradition. Reference has been made to how effective extradition is now. For those who are not familiar with it, the European Arrest Warrant framework that was put in place in the EU more than 20 years ago is an incredibly effective and streamlined administrative process now. It has brought together many aspects of the criminal justice elements of member states so that it is now very easy to have someone extradited within the EU from one state to another. That is exactly the way it should be. For this reason, there is nowhere for criminals to hide within the EU. It is an effective administrative tool that allows us to ensure that there are no hiding places for people who seek to evade justice.

I believe the Minister of State mentioned that there had been 105 requests from Ireland to the UK for extradition of people from there to here. We have sent more than 400 requests to other European countries. It is interesting that, in the post-Brexit era, this is one of the instruments that the UK thought to be so valuable as to retain, which is why its provisions continue to exist there. Under the Extradition Act 1965, extraditing people was clunky and difficult, so we can see how much the situation has changed and how much the European Arrest Warrant benefits us. This is not to say that it is appropriate for Poland, which has been criticised by the Supreme Court in this regard, to seek to extradite a Polish citizen in Ireland for having a very small amount of cannabis on the street in Warsaw 15 years ago or something like that. That is not what the European arrest warrant should be used for, yet some states are doing so. However, when we talk about the real criminals who have committed offences against the person, drugs offences, people trafficking, murder and rape - serious-level criminal activity - it is a fantastic tool that the State can use to bring those people to justice.

I recognise what has been said about Ireland being a net recipient of intelligence. That is undoubtedly the case. Of perhaps all member states, we have the most to gain from further engaging in international co-operation with our colleagues across the EU, specifically their policing organisations. The European Arrest Warrant is a powerful tool that allows us to link into our colleagues throughout the EU.

I will raise a number of small issues. Some of them are semantic, but I wish to flag them at this stage because they are matters that should be considered for amendment. Section 7 inserts in section 14 new subsections (6) and (7). The proposed section 14(6) states: "The release of a person under subsection (5) shall not prevent his or her re-arrest and surrender if a European arrest warrant for his or her surrender is received by the Central Authority and subsequently endorsed by the High Court for execution." My understanding is that this is a saving provision to allow the State to rearrest and reprocess a person where the High Court has not surrendered him or her because an administrative or other mistake had been made or for some other reason. The way it is phrased suggests to me that the person could only be rearrested where the arrest warrant for surrender was received and subsequently endorsed. I do not know if that is the intent. My understanding of the section is that it tries to reapply an extant warrant. Perhaps the Minister of State could re-examine the new subsection to see whether it should be amended to say that, where there is an extant warrant, there is an opportunity to re-execute it and the warrant does not necessarily fall simply because the surrender was not possible.

Will the Minister of State also examine the proposed new section 15(6A) in section 9(l) of the Bill? Section 15 allows a person to surrender voluntarily to the country seeking him or her. The new subsection seems to suggest that, where the person has consented to his or her return but 40 days have passed, the court is prevented from remanding that person on bail. I have concerns about this provision. Maybe I have misread it and that is not the intent, but it would be a negative provision if the person could not be remanded on bail.

I will raise a semantic issue relating to section 4(a)(i), which amends the 2003 Act by changing the terminology from a person "against whom" proceedings are to be issued to a person "who" is going to be prosecuted by a state. I believe this should still read "whom". We have removed the construction, but the indirect object pronoun still exists.

Again, a very semantic matter to raise but it might just be worth looking at in advance of Committee Stage. On behalf of the Fine Gael group, I welcome the legislation and I wish it good passage through the House.

Senator Niall Ó Donnghaile

Ba mhaith liom fáilte a chur roimh an Aire Stáit fosta. Cé go dtacaíonn Sinn Féin leis an Bhille seo, cosúil le mo chomhghleacaí, an Seanadóir Ward, tá cúpla rud gur mhaith liom a lua ag an Chéim seo. I welcome the Minister of State to the House. In supporting this legislation, similar to my colleague, Senator Ward, I have some observations which I will relay in due course. As the Minister of State knows, the broad purpose of the European arrest warrant is to legally unify the EU in relation to the extradition cases and to enable free movement of judicial decisions in certain criminal matters across the European Union and to do so on a basis of mutual recognition and respect for the judicial processes of member states. It further requires each state's judicial authority to recognise and act on requests made by the judicial authority of another.

In practice, if passed, this Bill will result in the European arrest warrant, EAW, replacing the extradition system that existed between member states previously. The arrest warrant permits a state to request the arrest and surrender of a named person for the purpose of prosecuting or to put into fact a custodial sentence within a specific deadline. Extraditing citizens of one state to another raises human rights issues so it is not a matter that has been entered into lightly. The warrant must be used properly and take into account the gravity of the offence, the sentence likely to be imposed, and whether there are other less coercive measures available. The warrant seeks a criminal prosecution and the imprisonment of the person. It applies in cases where an offence is punishable by imprisonment for a period of at least one year and where a custodial sentence had been passed for sentences of at least four months.

There are circumstances where a member state can refuse to act on a warrant such as if the person concerned has already been convicted for the same offence in a member state; if the offence is covered by an amnesty in the member state asked to act on the warrant; or if the person concerned is a minor who could not be held criminally responsible by the member state asked to act on that warrant. It is unclear where the appeals court will stand in relation to EAWs if this Bill is enacted as a suspect refusing surrender could potentially appeal the enforcement of the warrant. We are in favour of the ability of a member state to make a judgment on the enforcement of a warrant. We are concerned about the extradition of an individual to serve a custodial sentence of at least four months. This seems punitive and Sinn Féin will table amendments in that regard.

We will also table amendments on the Bill's failure to allow for minor sentences to be served within the Irish prison system in this State. This legislation may have a significant effect on the Ian Bailey case. Mr. Bailey was convicted in absentia in France of murder. However in 2003, the courts here refused the EAW request to extradite him. While there are concerns from some civil liberties groups regarding the use of a standardised system of warrants across the EU, it is important to note that each member state can potentially refuse the warrant.

There are potential flaws in this Bill and, as I have said, Sinn Féin will be tabling amendments to correct these. Nonetheless, we will support the Bill and I hope due consideration will be given to the amendments we bring at a later stage.

Senator Mark Wall

I too welcome the Minister of State to the House. The European Arrest Warrant (Amendment) Bill 2022 amends the European Arrest Warrant Act 2003, thus ensuring, as the Minister of State said, Irish law is fully consistent with the Council framework decision of 13 June 2002. It adds timeframes for making certain decisions and makes certain actions obligatory rather than discretionary. The changes will result in a more accurate transposition of the Council framework decision of 13 June, as required by the European Commission. The Bill also makes other technical changes to the 2003 Act. This follows the initiation in 2020 of the EU infringement proceedings by the European Commission against Ireland.

The Minister of State outlined in his contribution the largely technical nature of this Bill and the fact that most of the changes being brought about are procedural and technical in nature. As he set out, the issues within the Bill include confirmation of time limits, the ability to make decisions and for the surrender of a person on foot of arrest warrants, which seem to be reasonable and acceptable.

The Bill, as presented, allows for greater and closer co-operation with other states involved, which is necessary and much-needed. As other colleagues mentioned, given the growing international aspect of crime and its total disrespect of country borders, it is essential we have robust and workable mechanisms in place in every EU state so that those intent on committing serious crime can be pursued across these country borders. We seem to be seeing a growing custom of the leaders of these crime gangs living in other jurisdictions while living off the criminal proceeds in other state. The laws and enforcement that will allow us to apprehend such criminals must also be border-free, in the same way many of these criminals seem to be able to ignore and exploit these same state borders.

As I have already said, the Bill is quite technical. It deals with updating and simplifying the procedures we have surrounding the application of extradition right now. As colleagues said, the extradition system has come a long way in this country over the last number of years and this legislation will improve the process for the betterment of our own security and that of our neighbours. On behalf of the Labour Party, we wish to support the Bill and we look forward to the amendments to be debated as it passes through the House in the coming weeks.

Acting Chairperson (Senator Pauline O'Reilly)

I ask the Minister of State, Deputy Browne, to respond.

Minister of State at the Department of Justice (Deputy James Browne)

I thank the Senators for their contributions. I reiterate that the changes provided for in this Bill will enable the State to effectively respond to the issues that have been presented by the European Commission in formal legal infringement proceedings against this State. It is in our collective interests that there is consistent and effective operation of a European arrest warrant system. This remains one of our obligations as an EU member state, a status that is very much valued by our citizens and aspired to by many other nations.

I welcome Senator Horkan's positive comments on the Bill. In response to a number of the other comments, I would say that the transnational element of crime is becoming more and more of concern. Criminals are becoming more technical and more savvy and we have to move at pace with those criminals to be able to get ahead of them. I assure the House that there is extensive co-operation with the United Kingdom. The importance of this legislation on the European arrest warrant is reflected in the fact that, as Senator Ward pointed out, it was one of the key areas on which the United Kingdom moved to ensure its continuation.

In response to Senator Ward, I will certainly have another look at sections 7, 15 and 4 and I note his comments. I agree with the Senator that we have to ensure there is nowhere to hide. In response to Senator Ó Donnghaile, I look forward to seeing the Sinn Féin amendments and will give them due consideration. I acknowledge the Senator's general welcome for the Bill. I also welcome Senator Wall's general welcome for the Bill and the acknowledgement that it is largely technical. Nonetheless, the security of this State and that of our neighbours is absolutely crucial.

Question put and agreed to.

Seanad Éireann debate -
Tuesday, 25 Oct 2022