European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Bill 2011: Committee Stage

This meeting has been convened to consider Committee Stage of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Bill 2011. Apologies have been received from Deputy John Paul Phelan. I welcome the Minister for Justice and Equality and his officials to the meeting.

For the information of members, in amendment No. 26 after the word "TABLE", checkboxes should have been put beside paragraphs Nos. 1, 2, 3.1a, 3.1b, 3.2 to 3.4, inclusive, but were omitted accidentally in the printing process.

Sections 1 to 7, inclusive, agreed to.
SECTION 8

I move amendment No.1:

In page 7, between lines 25 and 26, to insert the following subsection:

"(2) Section 13(3) of the Act of 2003 is amended by substituting "and the warrant or the true copy of the warrant, as the case may be, endorsed" for "and the warrant, the true copy of the warrant, as the case may be, endorsed".".

This is a technical amendment. In effect, it tidies up the language of the section where previous amendments had resulted in grammatical inconsistencies.

Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9

Amendments Nos. 2, 4, 5, 9, 11, 12 and 23 are related and may be discussed together by agreement.

I move amendment No. 2:

In page 7, line 39, to delete "shall take" and substitute "shall, subject to section 18, take".

Amendment No. 23 is a substantive amendment. It inserts a new section 11 which substitutes the provisions of section 18 of the European Arrest Warrant Act 2003 relating to persons for whom a surrender has been ordered but postponed. On Second Stage, I stated I had been made aware of operational difficulties in the working of this section.

This substantive amendment addresses those difficulties. In the substituted text, the grounds on which the power of the High Court to postpone surrender and the grounds on which it may make such an order are set out in section 18(1). The grounds are unchanged. Section 18(2) provides that where the court makes an order under section 18(1), it should continue in force until the court makes an order under section 18(4). Section 18(3) provides a general power to the court to remand a person in custody or on bail when it postpones surrender. Section 18(4) provides that the court shall order the ending of postponement when, in effect, it is satisfied that the grounds on which it was ordered no longer exist. Section 18(5) provides that 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 the postponement ended. The provisions of the relevant section regarding entry into force of the surrender order and detention, pending surrender, and the fixing of a new date for surrender will necessarily all apply. This is a simpler procedure than the present system and, most important, ensures that 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.

Amendments Nos. 2, 4, 5, 9, 11 and 12 are technical and consequential on the insertion of the new section 11.

In regard to postponing a person's surrender, are we talking about the same timeframe, which will not exceed 25 days? The timeframe is not defined in the amendment.

Once the postponement ends, the normal time under sections 15 or 16 applies. It is 20 days or 25 days, depending on the nature of it.

Amendment agreed to.

Amendments Nos. 3 and 10 are related and will be discussed.

I move amendment No. 3:

In page 7, line 41, to delete "order." and substitute the following:

"order or such earlier date as the High Court, on the application of the Central Authority in the State and with the consent of the person to whom the order applies, directs.".

Amendments Nos. 3 and 10 amend original provisions in the Bill, which substitute the text of section (15)(3) and (16)(3), respectively, of the 2003 Act. These sections deal with the date of entry into force of orders for surrender. The Bill, as presented, no longer provides that a person to whom an order for surrender relates may request that the order take effect earlier than the period specified in each section. This had created operational difficulties in meeting the time limit specified for the carrying out of the surrender order and was something I mentioned on Second Stage as an issue which required addressing.

On Second Stage, I indicated that I considered it desirable to allow for fast track surrender where this did not create operational difficulties and the requested person consented. These amendments will allow for that. Under the revised text proposed, the central authority may request the court to order that an order for surrender take effect at an earlier date than normal where - I emphasise - the requested person consents. The authority will only make such an application where the surrender can be carried out by the earlier date.

Amendment agreed to.

I move amendment No. 4

In page 7, line 42, to delete "and section 18".

Amendment agreed to.

I move amendment No. 5:

In page 8, line 11, to delete "it shall" and substitute the following:

"it shall, unless it orders postponement of surrender under section 18".

Amendment agreed to.

Amendments Nos. 6 and 14 are related and will be discussed together.

I move amendment No. 6:

In page 8, line 30, after "Authority" to insert "in the State".

Amendments Nos. 6 and 14 amend original provisions in sections 9 and 10, respectively. The purpose of the amendment in each case is to put beyond doubt that the reference in each section to the central authority is a reference to the central authority in the State. This is also consistent with the language of the 2003 Act. Effectively, these are technical amendments.

Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10

Amendments Nos. 7 and 8 are related and will be discussed together.

I move amendment No. 7:

In page 9, lines 40 and 41, to delete "required by section 45(d)” and substitute “required by section 45”.

These amendments correct minor drafting errors in section 10. In each case, there is a reference to section 45(d) which is amended to section 45. Again, these are technical amendments.

Amendment agreed to.

I move amendment No. 8:

In page 10, lines 6 and 7, to delete "section 45(d)” and substitute “section 45”.

Amendment agreed to.

I move amendment No. 9:

In page 10, line 17, to delete "shall take" and substitute "shall, subject to section 18, take".

Amendment agreed to.

I move amendment No. 10:

In page 10, line 19, to delete "order." and substitute the following:

"order or such earlier date as the High Court, on the application of the Central Authority in the State and with the consent of the person to whom the order applies, directs.".

Amendment agreed to.

I move amendment No. 11:

In page 10, line 20, to delete "and section 18".

Amendment agreed to.

I move amendment No. 12:

In page 10, line 26, to delete "it shall" and substitute the following:

"it shall, unless it orders postponement of surrender under section 18".

Amendment agreed to.

Amendments Nos. 13 and 15 to 18, inclusive, are related and will be discussed together.

I move amendment No. 13:

In page 10, to delete lines 31 to 41 and substitute the following:

"(b) order that that person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) for a period not exceeding 25 days pending the carrying out of the terms of the order, and (c) direct that the person be again brought before the High Court—”.

These amendments refer to section 10 which substantially substitutes the text of section 16 of the 2003 Act and deal with procedures for the surrender hearing in the case of persons who are not consenting to surrender. The text of section 10, as it stands, reinserts subsection (16)(4)(b) which requires the High Court when ordering surrender to inform the person that he or she will not be surrendered before the expiration of the ten-day period when the surrender order enters into force without his or her consent. I signalled on Second Stage that I considered in the overall context of the amendments being made by the Bill that this provision would no longer be necessary. Members will recall that earlier we discussed amendment No. 10 which amends section 16 of the 2003 to provide a form of fast track surrender where it is logistically possible and the requested person consents. This further strengthens the case for deleting the existing provision.

Amendment No. 13 proposes to delete this subsection. Amendments Nos. 15 to 18, inclusive, are consequential on the deletion and involve renumbering of other subsections and amending references to the renumbered subsections.

Amendment agreed to.

I move amendment No. 14:

In page 11, line 1, after "Authority" to insert "in the State".

Amendment agreed to.

I move amendment No. 15:

In page 11, line 8, to delete "subsection (4)(d)” and substitute “subsection (4)(c)”.

Amendment agreed to.

I move amendment No. 16:

In page 11, lines 34 and 35, to delete "subsection (4)(c)” and substitute “subsection (4)(b)”.

Amendment agreed to.

I move amendment No. 17:

In page 11, lines 37 and 38, to delete "subsection (4)(d)” and substitute “subsection (4)(c)”.

Amendment agreed to.

I move amendment No. 18:

In page 11, line 40, to delete "subsection (4)(c)” and substitute “subsection (4)(b)”.

Amendment agreed to.

Amendments Nos. 19 to 22, inclusive, are related and will be discussed together.

I move amendment No. 19:

In page 12, line 6, to delete "Subsection (7) shall" and substitute "Subsection (7)(b) shall”.

Amendments Nos. 19 to 21, inclusive, amend section 10(8) which in turn amends subsection (16)(8) of the Act. This deals with the position where the High Court does not make an order for the surrender of a requested person. Amendment No. 19 corrects a minor drafting error. It replaces an erroneous reference in line 6 to subsection (7) and replaces it with subsection (7)(b). Amendments Nos. 20 and 21 amend the text of the subsection to clarify that the references to a term of imprisonment to mean a term of imprisonment which the person is required to serve in the State. This ensures that the provision applies to persons who are serving a sentence here under transfer of prisoners arrangement. Amendment No. 22 corrects a typographical error in subsection (10)(10).

Amendment agreed to.

I move amendment No. 20:

In page 12, lines 8 and 9, to delete all words from and including "for" in line 8 down to and including "State" in line 9.

Amendment agreed to.

I move amendment No. 21:

In page 12, to delete line 17 and substitute "imprisonment in the State,".

Amendment agreed to

I move amendment No. 22:

In page 12, line 42, to delete "subsection (1) or (2) section 15" and substitute "subsection (1) or (2) of section 15".

Amendment agreed to.
Section 10, as amended, agreed to.
NEW SECTION

I move amendment No. 23:

In page 13, before section 11, to insert the following new section:

11.—The following is substituted for section 18 of the Act of 2003:

"18.—(1) The High Court may direct that the surrender of a person to whom an order under subsection (1) or (2) of section 15 or subsection (1) or (2) of section 16 applies be postponed in accordance with this section where -

(a) the High Court is satisfied that circumstances exist that would warrant that postponement, on humanitarian grounds, including that a manifest danger to the life or health of the person concerned would likely be occasioned by his or her surrender to the issuing state,

(b) the person is being proceeded against for an offence in the State, or

(c) the person has been sentenced to a term of imprisonment for an offence and is required to serve all or part of that term of imprisonment in the State.

(2) The postponement shall continue until the High Court makes an order under subsection (4).

(3) Where the High Court decides to postpone a person's surrender under this section, it shall remand the person in custody or on bail and, for that

purpose, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable

offence.

(4) The High Court shall make an order ending the postponement of

surrender -

(a) where paragraph (a) of subsection (1) applies, when the High Court is satisfied that the circumstances referred to in that paragraph no longer exist,

(b) where paragraph (b) of subsection (1) applies, when the High Court is satisfied that the proceedings in respect of the offence concerned have been finally determined (where the person concerned is not required to serve a term of imprisonment), or

(c) where paragraph (c) of subsection (1) applies, when the High Court is satisfied that the person concerned is no longer required to serve any part of the term of imprisonment concerned.

(5) Section 15 or 16, as the case may be, shall apply to the person concerned as of the date of the order under subsection (4) as though that order were an order made under subsection (1) or (2) of section 15 or (1) or (2) of section 16, as the case may be.".".

Amendment agreed to.
Section 11 deleted.
Sections 12 to 17, inclusive, agreed to.
NEW SECTION

I move amendment No. 24:

In page 15, before section 18, to insert the following new section:

18.—The following is substituted for section 30 of the Act of 2003:

"30.—(1) If the Central Authority in the State receives a European arrest warrant in respect of a person and the State receives a request from a third country for the extradition of that person, the Central Authority in the State shall, where an order has not yet been made under subsection (1) or (2) of section 15, or subsection (1) or (2) of section 16, in relation to the person, so inform the High Court, and the High Court shall not perform functions under this Act in relation to the European arrest warrant, unless the Minister has informed the High Court that—

(a) the request for extradition is not being proceeded with, or

(b) the European arrest warrant is to have precedence over the request for extradition.

(2) If the Central Authority in the State receives a European arrest warrant in respect of a person and the State receives a request from the International Criminal Court for the arrest and surrender of the same person, the Central Authority in the State shall, where an order has not yet been made under subsection (1) or (2) of section 15, or subsection (1) or (2) of section 16, in relation to that person, so inform the High Court, and the High Court shall not perform functions under this Act in relation to the European arrest warrant, unless the arrest and surrender of that person pursuant to such a request is prohibited, or not provided for, under the law of the State.".".

Section 18, as it stands, contains a purely technical amendment to section 30 of the European Arrest Warrant Act.

This deals with cases where extradition and European arrest warrant requests are received in respect of a person. On Second Stage I indicated that it had been brought to my attention that the substantive text of the section could lead to difficulties. The substituted text sets out 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 such an arrest warrant and an extradition request are received in respect of a person. The text in question more accurately reflects the provisions of the framework decision on the European arrest warrant relating to such situations.

Amendment agreed to.
Section 18 deleted.
Sections 19 to 21, inclusive, agreed to.
NEW SECTION

Amendments Nos. 25 and 28 are related and will be discussed together.

I move amendment No. 25:

In page 16, before section 22, to insert the following new section:

22.—Section 42(b) (inserted by section 83 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003 is amended by substituting “proceedings are pending” for “proceedings have been brought”.”.

Amendment No. 25 inserts a new provision into the Bill which will amend section 42(b) of the European Arrest Warrant Act. The latter deals with the position where there are proceedings in the State against a requested person. What is proposed is a linguistic change recommended by the Attorney General in light of judicial comments on the current wording. The section now provides that a person shall not be surrendered if “proceedings are pending” against him or her in the State rather than” have been brought” against him or her. The new wording that is being inserted is more precise and will ensure that no difficulties will arise.

Amendment No. 28 is similar and amends the equivalent provision in the Extradition Act. I am of the view that there should be consistency, in so far as is possible, in the language used in the relevant legislation.

Will amendment No. 25 deal with the concerns expressed by Mr. Justice Hardiman last week in respect of the Tobin case?

Those are separate concerns. The issue in the Tobin case was different to that with which we are dealing here.

What is the position with regard to someone against whom charges have been brought in this State?

We are referring here to charges pending in the State which have yet to be resolved and dealt with. The real issue that arose related to the use of the word "brought", which creates a certain degree of ambiguity.

I welcome the Minister's intention to clarify the position with regard to the Tobin case. Mr. Tobin is one of my constituents and I raised this matter with the Minister.

There are aspects of the judgment in the Tobin case on which I am still awaiting advice. I am not sure that I will be able to provide an immediate clarification. The difficulties that arose in the Tobin case relate to a separate issue. I do not know whether we will be able to address any matters arising out of that case during the course of our deliberations on this legislation. As already stated, I am awaiting detailed advice in respect of certain aspects of the judgment handed down.

Will the Minister be in a position to clarify matters prior to Report Stage?

I hope it would be possible to do so. If an issue arises which relates to this legislation prior to Report Stage, then we may be obliged to recommit the Bill to Committee Stage in order to deal with it. However, that can be done in the Dáil.

Amendment agreed to.
SECTION 22

I move amendment No. 26:

In page 16, to delete lines 4 to 39 and substitute the following:

"45.—A person shall not be surrendered under this Act if he or she did not appear in person at the proceedings resulting in the sentence or detention order in respect of which the European arrest warrant was issued, unless the European arrest warrant indicates the matters required by points 2, 3 and 4 of point (d) of the form of warrant in the Annex to the Framework Decision as amended by Council Framework Decision 2009/299/JHA, as set out in the table to this section.

TABLE

(d) Indicate if the person appeared in person at the trial resulting in the decision:

1. Yes, the person appeared in person at the trial resulting in the decision.

2. No, the person did not appear in person at the trial resulting in the decision.

3. If you have ticked the box under point 2, please confirm the existence of one of the following:

3.1a. The person was summoned in person on (day/month/year) and thereby informed of the scheduled date and place of the trial which resulted in the decision and was informed that a decision may be handed down if he or she does not appear for the trial;

OR

3.1b. the person was not summoned in person but by other means actually received official information of the scheduled date and place of the trial which resulted in the decision, in such a manner that it was unequivocally established that he or she was aware of the scheduled trial, and was informed that a decision may be handed down if he or she does not appear for the trial;

OR

3.2. being aware of the scheduled trial, the person had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the State, to defend him or her at the trial, and was indeed defended by that counsellor at the trial;

OR

3.3. the person was served with the decision on (day/month/year) and was expressly informed about the right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and

the person expressly stated that he or she does not contest this decision,

OR

the person did not request a retrial or appeal within the applicable time frame;

OR

3.4. the person was not personally served with the decision, but

— the person will be personally served with this decision without delay after the surrender, and

— when served with the decision, the person will be expressly informed of his or her right to a retrial or appeal, in which he or she has the right to participate and which allows the merits of the case, including fresh evidence, to be re-examined, and which may lead to the original decision being reversed, and

— the person will be informed of the time frame within which he or she has to request a retrial or appeal, which will be days.

4. If you have ticked the box under points 3.1b, 3.2 or 3.3 above, please provide information about how the relevant condition has been met:

...................................................................................................

................................................................................................".

Amendment agreed to.
Section 22, as amended, agreed to.
NEW SECTION

I move amendment No. 27:

In page 16, before section 23, but in Part 3, to insert the following new section:

23.—The following is substituted for section 45C (inserted by section 20(b) of the Criminal Justice (Miscellaneous Provisions) Act 2009) of the Act of 2003:

"45C.—For the avoidance of doubt, an application for surrender under section 16 shall not be refused if the Court is satisfied that—

(a) there is a defect in, or an omission of, a non-substantial detail in the European arrest warrant or any accompanying document grounding the application,

(b) there is a variance between any such document and the evidence adduced on the part of the applicant at the hearing of the application, so long as the Court is satisfied that the variance is explained by the evidence, or

(c) there has been a technical failure to comply with a provision of this Act, so long as the Court is satisfied that the failure does not impinge on the merits of the application.”.”.

Section 45C of the 2002 Act provides that surrender shall not be refused on the grounds of a technical flaw in an application on condition that this would not cause an injustice to the requested person. In this amendment, I was intending to further strengthen the protection for the requested person where this provision is applied. The new paragraph (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 a variance is explained by the evidence. However, due to an unfortunate drafting error, subsection (2), which provides that the provision may only be applied if this would not cause an injustice to the requested person, has been omitted from the amendment. I will, therefore, bring forward a further amendment on Report Stage in order to rectify the situation.

Amendment agreed to.
Sections 23 and 24 agreed to.
SECTION 25

I move amendment No. 28:

28. In page 17, to delete lines 11 to 13 and substitute the following:

"(b) proceedings for the offence are pending in the State against the person claimed.”.

Amendment agreed to.
Section 25, as amended, agreed to.
Sections 26 to 28, inclusive, agreed to.
SECTION 29

I move amendment No. 29:

In page 18, to delete lines 35 to 42 and substitute the following:

"(a) there is a defect in, or an omission of, a non-substantial detail in the request for extradition or any document supporting the request,

(b) there is a variance between any such document and the evidence adduced before the Court, so long as the Court is satisfied that the variance is explained by the evidence, or

(c) there has been a technical failure to comply with a provision of this Act, so long as the Court is satisfied that the failure does not”.

Section 29 inserts a new provision in the Extradition Act which provides that a court may make an order for extradition even if there is a technical flaw in an application on condition that this would not cause an injustice to the requested person. This mirrors the provision we just discussed in the context of the European Arrest Warrant Act. In an earlier amendment which facilitated the insertion into the Bill of a new section 23 and in a further amendment that will be tabled for Report Stage, I am further strengthening the protection for the requested person where the provision in the European Arrest Warrant Act is applied. It is appropriate, in the interests of consistency, that the same protection be afforded to persons who are the subject of extradition requests. The revised text of paragraph (b) now provides that where there is a variance between any document supporting an extradition request and the evidence adduced before the court, the latter cannot apply the provision unless it is satisfied that such a variance is explained by the evidence. As with the similar amendment to the European Arrest Warrant Act, I am of the view that this strikes an appropriate balance between the rights of the person and the international obligations the State is required to meet.

Amendment agreed to.
Section 29, as amended, agreed to.
Sections 30 to 33, inclusive agreed to.
Title agreed to.
Bill reported with amendments.