Amendments Nos. 29 to 31, inclusive, may be discussed together by agreement.
Criminal Justice (Terrorist Offences) Bill 2002: Committee Stage (Resumed).
I move amendment No. 29:
In page 43, subsection (3)(b), to delete lines 33 to 36 and substitute the following:
"(i) a European arrest warrant has been received from an issuing state for the purpose of bringing proceedings against the person for an offence in respect of that act,".
These amendments arise following enactment of the European Arrest Warrant Act which provides for new extradition arrangements in the member states of the European Union. The Act also repealed Part III of the Extradition Act 1965 which provided for extradition arrangements with the United Kingdom. References in section 45 to Part III of the Act of 1965 are replaced by reference to the European Arrest Warrant Act and several consequential amendments are made to the text. They are technical amendments.
Now that the European Arrest Warrant Act is in place, could we have some idea of what other countries have passed the legislation, and its implications here for the definition of terrorism since there is mutuality and reciprocity between various states?
The answer to that question is that all member states of the European Union with the exception of Italy have now enacted and put into operation the European arrest warrant procedure.
Is this a completely new section? Are we amending some matter in the Bill?
No. This is simply removing the reference to Part III of the Act of 1965 and substituting a reference to the European arrest warrant.
That seems to be fine.
I move amendment No. 30:
In page 43, subsection (3)(b)(iii), lines 41 to 46, to delete all words from and including “(whether” in line 41 down to and including “or” in line 46 and substitute the following:
"that the European arrest warrant should not be endorsed for execution in the State under the European Arrest Warrant Act 2003 or that the person should not be surrendered to the issuing state concerned, or".
I move amendment No. 31:
In page 44, subsection (4), between lines 19 and 20, to insert the following:
"‘European arrest warrant' and ‘issuing state' have the meanings given by section 2 of the European Arrest Warrant Act 2003;".
I move amendment No. 32:
In page 45, subsection (2), lines 3 and 4, to delete all words from and including "he" in line 3 down to and including "offence," in line 4 and substitute the following:
"the offence is alleged to have been committed,".
This amendment to section 46(2) is designed to ensure that the section covers not only the citizenship of the accused but also that of the person against whom the offence is committed or directed, given that the Bill proposes to take jurisdiction over certain offences when they are committed outside the State and are committed or directed against a citizen of this State. I recommend the amendment to the committee. It makes the matter clear.
I move amendment No. 33:
In page 46, before section 50, but in Part 5, to insert the following new section:
"50.—The Minister shall keep under review the operation and effectiveness of this Act and from time to time, shall invite submissions from interested parties on the operation of the Act.".
This is important legislation. Our discussions over recent days at the committee have been particularly useful. It is obviously complex legislation and there are different views about it. We are not quite sure how it will work out in practice. In today's environment there is a need to keep this type of legislation under review so that we can regularly examine it for gaps or weaknesses and see where it might be strengthened.
The purpose of this amendment is to seek to have the Minister keep under review the operation and effectiveness of the Act and to invite submissions from interested parties on the operation of the Act from time to time.
This is in the same vein as the Offences against the State Act. It is a type of special emergency legislation related to terrorism. For that reason, it should be classed in that category in terms of the need to review it.
I acknowledge that this is complex new territory in some respects and that a process of review may well be appropriate, but it is a matter for this committee to carry out any reviews requested by the members. From the point of view of the Department, I will undertake for myself and my successors to participate in any reviews that the committee or its successor want to make of the legislation. It should be the Oireachtas rather than the Department which should seek interested parties to make submissions. In those circumstances, it is more appropriate for legislators to keep their legislation under review than for the Department to do so and to interpret the review process to the public at large.
On my own behalf and that of my successors, I undertake that we will participate in any review on the operation of the Act which this committee considers appropriate. It is appropriate in that circumstance that interested parties, including perhaps the Human Rights Commission, would be called in before the committee and make their views known on how the Act is operating or not operating.
I suggest that we consider highlighting that in our terms of reference in order that if future committees of future Dáils wish to review the legislation, that would be allowed for.
For the moment I will not press the amendment. I merely wanted to raise the matter for discussion. We can come to some kind of decision as to whether references to possible reviews should be inside or outside the scope of the Bill. I merely wanted to note that we should keep an eye on the operation of this legislation.
Perhaps the remarks of the Minister could be brought to the attention of the Human Rights Commission in order that it would be aware that the Minister is amenable to its participation in any review of the legislation in the future.
No doubt the Human Rights Commission avidly reads the reports of this committee.
If this could be a mechanism to keep the legislation under continuous review, it should be stated somewhere in the Act and also the Act with which sections 50 to 54 deal, the Offences against the State Act. If the committee is to undertake to review this type of legislation, it should similarly review the Offences against the State Act, which is also emergency legislation.
That would be another day's work.
It might be, but the sections we are discussing and section 50 relate to changes in the Offences against the State Act. While Deputy O'Keeffe is talking about reviewing the Bill when it is an Act in future, the two Acts should come under the same review. Both relate to emergency legislation and have much the same effect.
I withdraw the amendment. I am always ready to consider a review of the Offences against the State Act. There might be circumstances where it might need to be toughened or otherwise but it is a separate issue.
I move amendment No. 34:
In page 46, before section 50, but in Part 6, to insert the following new section:
"50.—Where the Director of Public Prosecutions certifies, pursuant to the Offences against the State Act 1939, that the ordinary courts are inadequate for the trial of an offence, the Director shall, if requested by the Defendant, give reasons for the making of such a certificate.".
This is an opportunity to insert a provision which I hope would improve the situation with regard to the Offences against the State Act. It has always surprised me that in the 1974 legislation regarding the post of Director of Public Prosecutions, the DPP did not have to give an account or explanation as to why or how he prosecuted. He is a servant of the State who is not answerable to anybody. When the DPP decides that the ordinary courts are inadequate for the trial of an offence and that offences under the Offences against the State Act go to the special courts, that matter is of a special nature and should be addressed.
An explanation should be required, but the DPP does not have to explain why he moves from the ordinary courts to the Special Criminal Court. That was criticised under international law in the case of Kavanagh v. Ireland 2001. The United Nations Human Rights Committee said that this exceptional power should not operate in that unfettered fashion. Accordingly, I seek to introduce an amendment because this is the section which deals with the interaction between this legislation dealing with terrorism and the Offences against the State Act.
This issue was the subject of examination by the Hederman committee with regard to the Offences against the State Act and in particular the case of Kavanagh v. Ireland. The applicant, Mr. Kavanagh, was charged with false imprisonment, robbery and firearms offences and the DPP gave the appropriate certificate in respect of those non-scheduled offences so that the applicant was charged directly before the Special Criminal Court. Mr. Kavanagh challenged the decision of the DPP to grant the appropriate certificate contending that the offences in respect of which he stood charged were ordinary crimes with no political or subversive connection. The Supreme Court rejected that application on the basis that the issue involved was not the nature of the offences but the adequacy, in the opinion of the Government or the Director of Public Prosecution, of the ordinary courts to secure the effective administration of justice with regard to them.
Mr. Kavanagh then applied to the UN Human Rights Committee and complained that the procedure adopted in the reference of his case to the Special Criminal Court violated his entitlement to equality before the law as guaranteed by Article 26 of the International Covenant on Civil and Political Rights. The judicial review of the DPP's position was effectively restricted to the most exceptional and virtually undemonstrable circumstances. The UN considered that the State had failed to demonstrate that its decision to try Mr. Kavanagh before the Special Criminal Court was based on reasonable and objective grounds. It was further noted by the Hederman committee that a decision by the DPP to direct a trial in the Special Criminal Court was effectively unreviewable, something that has been the subject of criticism from the Irish Council for Civil Liberties, Amnesty International and others.
In considering those matters, a majority of the Hederman committee recommended that, although the present arrangements have worked reasonably well in practice, review by a serving Supreme Court judge, perhaps in conjunction with an independent counsel, should be considered. The word is "should" rather than anything else. Such a review would involve the DPP within 28 days of the charging of an accused before the Special Criminal Court submitting to a serving member of the Supreme Court both the decision to refer the case to the Special Criminal Court and the reason that has given rise to that decision. If the judge were so satisfied, he or she could then issue a certificate indicating that the decision had been reviewed and that the Director of Public Prosecution's decision to try the accused before the Special Criminal Court was based on reasonable and objective grounds. The certificate would be produced in the Special Criminal Court for the date fixed for trial.
In making such a recommendation, the Hederman committee considered other options, including review by the High Court following an inter partes hearing. That option was rejected on the basis that such an approach might lead the prosecution into being coerced to reveal sensitive security information to the accused, his counsel and the wider public, and, moreover, many of the prosecution’s concerns might not be susceptible of exact legal proof. In light of the foregoing, it was recommended that the amendment tabled by Deputy Costello should not be accepted on the basis that the Hederman committee, which considered the issue, did not recommend that approach being advocated by the Deputy.
It would be correct to note that the recommendations of the Hederman committee are still being examined in the Department. It is not apposite to make such a decision now. However, I will draw Deputy Costello's proposed amendment to the attention of the Director of Public Prosecutions between now and Report Stage and elicit any comment as to whether he might consider it an advantage or disadvantage and what problems he might envisage in taking the approach suggested by the Deputy.
The DPP is not anxious to explain himself under any circumstances.
The DPP has to do so in certain circumstances. On that one, he should be given an opportunity, before I start accepting or rejecting amendments, to have an input.
Amendments Nos. 35 and 36 are related and may be discussed together, by leave. Is that agreed? Agreed.
I move amendment No. 35:
In page 46, line 14, after "assistance" to insert ", financial or otherwise,".
This is an important section, covering the position on the offence of providing assistance to an unlawful organisation. Essentially it amends the 1939 Act. As drafted, one might think the section rather ambiguous, and I would like to strengthen it. The two proposals are along the following lines. The first concerns the person who knowingly renders assistance to an unlawful organisation. I am making it clear by saying "financial or otherwise". I also suggest that we include "directly or indirectly" there. The changes are of a drafting nature, but they clarify the section drafted. I put them forward for consideration.
I have some sympathy with such amendments but I would not like to accept them without consulting the parliamentary counsel. It seems to me that, since it is knowing assistance that is being rendered in this case, it should be clear to the courts that indirect assistance knowingly rendered is as culpable as direct assistance. I do not know whether it is necessary to specify "financial or otherwise", but if the term "financial" would strengthen the section, I would be disposed to accept the amendment. If the Deputy might allow me until Report Stage, I will reconsider that.
I agree to that.
I move Amendment No. 37:
In page 46, line 30, to delete "13” and substitute “12”.
It is a typographical error.
Regarding all these sections, a committee met to deal with the Offences Against the State Act. It made recommendations that I might like, but that the Minister probably does not. It is a pity that we are not using the opportunity to amend the Offences Against the State Act in line with the Hederman committee and the major recommendations that it made. There are quite a number, and some of these sections are contrary to the recommendations made by that committee. It is a pity at this stage that we have not taken them on board. It would also be in line with commitments given under the Good Friday Agreement not only that we review emergency legislation but that we consider alterations. That was what most people thought would happen with the Hederman committee. It is an opportunity, since the Minister is already amending the Offences Against the State Act. He is strengthening it by these sections rather than taking on board the concerns raised. The main sections of concern regarding the committee's report are 50 to 54, inclusive.
I do not want to get involved in a contentious debate at this hour of the morning, but if people had expectations under the Good Friday Agreement, they run both ways. I constantly point out that it is not a one-way street, particularly for those associated with the provisional republican movement. On the day that the international monitoring commission report is published, which shows exactly what is going on——
That was not in the Good Friday Agreement anyway.
All the activities that it mentions are breaches of the Good Friday Agreement, including major heists and ongoing criminal activity, including the destruction of young people's lives and limbs by paramilitary organisations posing as police and courts in their local communities. All those activities must end.
The sooner that they end, the better this community will be able to deal with the review of the emergency legislation that was enacted to counter terrorism. The underlying fact coming out of today's report is that the IRA is stated by the IMC to be a heavily armed, strong paramilitary organisation well capable of engaging in further paramilitary and terrorist activity. In those circumstances, today is not the right time to start reminding others of obligations arising under the Good Friday Agreement. Paramilitarism must end, and parties linked with paramilitaries must wind down those organisations emphatically and unambiguously. That is the situation at which we have now arrived.
Perhaps I might respond, since the Minister did not respond to the specific issues raised. He knows the work Sinn Féin has done in trying to reach that situation. We too want an end to paramilitarism, but as part of that we are working to our commitments. The Minister is obviously not working to his, some of which are included in the Hederman committee's recommendations. Those are changes that can take place.
The suggestions were made by esteemed people. While the circumstances here outlined were recognised by them, they also recognised that the workings of the Offences Against the State Act and the Special Criminal Court were wrong and that changes needed to be made. Not all the changes would weaken the legislation; some would strengthen it. However, we should have taken the opportunity not simply to strengthen the legislation as the Minister is doing in these circumstances but to address the other concerns raised by the Hederman committee, for example, in section 54, bringing back legislation which was allowed to lapse extremely quickly because it was unjust and should not have been enacted in the first place and bringing in and strengthening sections 52 and 53 of this Bill.
Is Deputy Ó Snodaigh giving notice that he is bringing forward Report Stage amendments?
Yes. The Human Rights Commission and the Hederman committee have identified these specific sections of the Offences Against the State Act for review. The Minister's attitude towards them is not helpful. We should have, and I will, take the opportunity to put the amendments, as suggested by the Hederman committee.
Amendment No. 38 has already been discussed with amendment No. 17. Is Deputy Costello withdrawing that amendment?
It is not being withdrawn. I move amendment No. 38:
In page 47, between lines 13 and 14, to insert the following subsection:
"(3) The Minister may authorise the Criminal Assets Bureau to perform functions under section 22B to 22I on his or her behalf.".
I move amendment No. 39:
In page 52, lines 42 to 47, to delete all words from and including "Article" in line 42 down to and including "2002” in line 47 and substitute the following:
"the United Nations convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on the 20th of December, 1988;
(c) an offence within the scope of the International Convention for the Suppression of Terrorist Bombings adopted by resolution 52/164 of the General Assembly of the United Nations on 15 December 1997;
(d) an offence within the scope of the International Convention for the Suppression of the Financing of Terrorism adopted by resolution 54/109 of the General Assembly of the United Nations on 9 December 1999”.
Section 57 amends section 3(1) of the Extradition Act 1965, in order to exclude an offence under section 10 of terrorist bombing or financing terrorism under section 13, from the definition of political offence as contained in the 1965 Act. In effect, extradition cannot be refused on the basis that the offence is political or is connected with a political offence. The purpose of this amendment is to put beyond doubt that the political offence exception will not apply to an offence under sections 10 or 13 no matter where it is committed.
Amendments Nos. 40 and 41 are related and will be discussed together. Is that agreed? Agreed.
I move amendment No. 40:
In page 53, paragraph (a), to delete lines 9 to 12 and substitute the following:
"‘the offence of killing or attempted killing under paragraph (h) or (i) of section 2(1) of the Maritime Security Act 2004 or an attempt to commit such offence’ (inserted by section 10 of the Maritime Security Act 2004);”.
This amendment amends the Criminal Procedure Act 1967 to provide that a person charged with the offence of murder or attempted murder contrary to sections 6 or 11, may not be dealt with summarily in the District Court on a plea of guilty. The amendment is necessary to take account of the amendment of the Criminal Procedure Act 1967, which was inserted by the Maritime Security Act 2004 after the initial drafting of this Bill. I recommend the amendment to the committee.
I move amendment No. 41:
In page 53, paragraph (b), to delete lines 14 to 16 and substitute the following:
"(j) (inserted by section 10 of the Maritime Security Act 2004):
‘(k) the offence of murder under section 6 or 11 of”.
I move amendment No. 42:
In page 53, after line 22, to insert the following new section:
European Arrest Warrant
61.—In this Part ‘Act of 2003' means the European Arrest Warrant Act 2003.".
I will make a few introductory remarks about amendments Nos. 42 to 49, inclusive. They amend the European Arrest Warrant Act 2003. Each of the amendments will be taken separately, with the Chairman's leave, thus giving an opportunity for the issues involved in each case to be set out. I propose that a new Part 7 should be added to this Bill to accommodate these amendments. The amendments I now propose are necessary to deal with issues that have arisen in the administration and implementation of the European Arrest Warrant 2003, since its passage. They do not alter the basic features of the arrangements as set out in the European Arrest Warrant Act.
The committee may wish to know that I await the advice of the Attorney General on a number of matters not covered in the amendments now being discussed. That advice, which is due shortly, may result in further amendments being proposed. In the event that amendments are considered necessary these will be presented on Report Stage. The additional issues being examined relate primarily to when certain undertakings may be sought from the issuing state and may entail amendments to sections 22 to 24, inclusive, in particular. I will deal more fully with those amendments on Report Stage if that necessity arises.
As indicated, I propose that the new amendments to the European Arrest Warrant Act 2003 should be in a new part, Part 7 of this Bill. Amendment No. 42 introduces a new section 61. The new section is for definition purposes only. It is simply defining what the Act of 2003 means in the proposed Part 7.
Are we just dealing with the definition proposal at this stage?
The Minister might outline the collective list of amendments?
If members got a flavour of the Minister's proposals we would be able to handle them better.
This can be done quickly. I will deal with amendment No. 43 and its purpose and then the committee will understand what I am doing. It is for the purpose of substituting a new and revised section 10 to the European Arrest Warrant Act 2003. Section 10 of the 2003 Act establishes a general obligation to surrender persons who come within certain categories. These categories include a person against whom theissuing state intends to bring proceedings or who has been sentenced and convicted for an offence in the issuing state to which the Act applies. This general obligation to surrender wanted persons is made, subject to compliance with the Act and the framework decision, including all of its safeguards. Amendment No. 43 is for the purpose of clarifying who may be subject to surrender under a European arrest warrant. In particular, it makes it clear that persons who have been convicted but not yet sentenced in respect of an offence to which the European arrest warrant relates, can be subject to surrender. The present section 10 did not include an explicit provision, although we would have thought it was implicit, in respect of that category for people who have been convicted but have not yet been sentenced. The proposed changes are designed to overcome any doubt that might arise from the present wording of section 10.
The only change is to clarify that it covers people who are convicted but not sentenced.
Amendment No. 44 introduces new section 63, with a view to amending section 11 of the European Arrest Warrant Act. Section 11 of the Act reflects the detail specified in Article 8 of the framework decision and sets out the information that the arrest warrant must contain such as the name and nationality of the wanted persons, details of the judicial authority that issued the warrant, the offence to which it relates, details of the offence and the like. The present subsection (1) deals with both the form and content of a European arrest warrant. The amendment separates these two issues. As a result, the new subsection (1) deals with the form of the European arrest warrant and provides that in so far as is practicable, it must be set out as per the form laid down in the annex to the framework decision. That ensures that a European arrest warrant that does not follow the form in every detail may still be accepted. There is therefore some minor departure from the form of the warrant and it can still be accepted.
The new subsection (1)(a) deals with the content and sets out the information to be provided in the European arrest warrant. It addresses in particular the issue arising from Article 8 of the framework decision. That article appears to provide that the inclusion of details such as the e-mail address is mandatory and must have the same status as other details, say, relating to the identity of the wanted person or the offence. It is possible that some judicial authorities may not have an e-mail address and if Article 8 were to be applied strictly, that could result in the arrest warrant being rejected on that relatively minor ground. The amendment seeks to alleviate that potential problem. The new subsection identifiesthe matters about which details must be provided, while also providing that details about e-mail addresses and the like may be given where they are available. A new subsection (2)(a) is being added to provide that information required by subsection (1)(a) may be supplied in an additional document. That will avoid the need to ask the issuing state to reissue European arrest warrants every time it requests additional information.
We have had a few court cases in which some of these issues have been signalled. Rather than allow the Irish State to come up against adverse court decisions that trip us and require us to introduce separate legislation, my advisers consulted me and I decided we should get this right before matters began to go wrong. If there are ambiguities in the legislation, they should be tidied up. One court case, which we are coming to just now, has caused significant difficulty.
Amendment No. 45 inserts a new section 64 in the Bill. Its purpose is to amend section 12 of the 2003 Act. Section 12 deals with arrangements for the transmission of European arrest warrants and related undertakings. I propose to deal with the amendments according to their subject matter. Dealing first with subsections (2), (5), (6) and (8)(b), the words “or issuing state” are being added after “judicial authority”. This will allow the issuing judicial authority or other relevant authority in the issuing state, that is a prosecutor or the executive of that state, to supply any undertakings required. Why did this happen? It derives from the fact that in some countries all prosecutions are carried out by judicial figures. Judicial figures are, therefore, given the function in civil law countries of giving requisite undertakings. In common law countries, in particular the United Kingdom and Ireland, the request is made by a judge, but a judge is not in a position to start issuing undertakings. We came across a case where there was considerable doubt about whether a UK judge was in a position to give the Irish State undertakings. It is much more appropriate that the UK Executive or Director of Public Prosecutions gives such undertakings rather than a judge who is not in a position to do so.
Why do we have this provision in the legislation?
One of the reasons I am required to bring forward this legislation is the post-Madrid decision made by the Justice and Home Affairs Council which required all member states to get on with meeting all of their outstanding international obligations under EU and international law relating to terrorism. Every member state should make sure the European arrest warrant is operating well in its territory.
When the framework decision was devised by civil law system lawyers, they tended to think of investigating magistrates who co-operate between themselves. They never seem to understand there is a different system in at least four or five jurisdictions of the European Union where the judges are arbitral and not investigating magistrates. The arrest warrant procedure implied that the judge issuing the warrant was in a position to give undertakings on behalf of the requesting state. Irish and English judges are not in a position to issue undertakings on behalf of the state. Their function is independent of the state and they do not give undertakings. In the common law system judges are arbitral and independent of the state. They are not bound to do anything except administer justice. They do not give undertakings to other systems. That is where the problem arose. We are doing it now in order that we can say——
Why we are doing it here.
I could have done it in a separate Bill to amend the European Arrest Warrant Act 2003. Time constraints at this committee and in the Oireachtas would have left another item on the list. Since my constituency colleague, Deputy Gormley, has accused me of being a serial legislator, I am anxious not to keep throwing Bill after Bill at the House. The arrest warrant procedure and international terrorism are cognate subjects.
This is not the appropriate place, especially since the Minister has indicated there will be additional amendments on Report Stage. We all know what happens to amendments on Report Stage. In the run up to Christmas we usually do not get to them because of the use of the guillotine. I hope the Minister will be able to persuade the Chief Whip that there will be no guillotine on Report Stage. We can then reach this section which should have been the subject of a stand-alone Bill. It is a source of concern that only one year after passing the European Arrest Warrant Bill 2003 we are back substantially changing it with seven pages of amendments. Most spokespersons have shown a willingness to work with the Minister when required on Bills, even though we may not necessarily agree with him.
My feeling is we should be prepared to facilitate the Minister where we make international commitments to make the European arrest warrant as watertight as possible. If we had oodles of time, it would be great to spend hours dealing with a fresh Bill. However, it is appropriate in the circumstances that the opportunity should be availed of, especially since the issue under debate is related.
I have reservations, especially since we will have something new under the heading of "Miscellaneous Provisions". The least the Minister should do in the circumstances is present us with an explanatory memorandum on the new items forming a package of proposals. I have a difficulty with the European arrest warrant being incorporated into terrorist legislation, with which it is out of kilter, even though there is a common element. However, that is not what the European arrest warrant is all about. It is about the pursuit of offences across territories, not specifically terrorist offences. Where the Minister is seeking to be facilitated with a miscellaneous provisions element, it is appropriate that we should have an explanatory memorandum.
I will supply a full explanatory memorandum. I thought that the European arrest warrant had been put in absolute apple pie order. When we have a number of systems, matters begin to fray at the edges very quickly. I have no doubt that other countries will find that they are in the same position.
Will the Minister continue and explain the new sections?
Section 46 provides for arrest on the grounds of urgency based on an alert on the Schengen information system. Subsection (10) defines what is a Schengen alert. It is being reorganised to overcome certain discrepancies in the drafting of the section. However, the main issue being addressed arises in the context of the new paragraph (a)(ii) of subsection (10) which refers to a statement being made in writing under section 11(3) by the judicial authority. Like previous amendments to section 11, it will now be possible to request such statements from either the issuing judicial authority or another agency of the issuing state. In the case of the United Kingdom, in particular, the judicial authority will not have to provide this material.
Section 66 deals with section 15 of the European Arrest Warrant Act 2003, cases where the person consents to being surrendered. In such cases the High Court makes a surrender order, but subsection (3) provides that execution of the order must be delayed for ten days. This provision was inserted to allow for the possibility of revocation of consent by the requested person. However, a recent case demonstrated that some persons who consent to surrender may wish to return to the issuing state immediately without having to wait ten days in custody in the State. Effectively, we want to allow people to waive the mandatory waiting period provided for, where they are so advised.
Section 48 concerns section 16 of the European Arrest Warrant Act 2003. Subsections (1) and (2) of section 16 provide for the making of an order by the High Court that the person be surrendered on such date as is fixed by section 13 or section 14, as the case may be. The reference to the fixingof a date was intended to refer to the provisions of section 13(5)(b) and section 14(7)(b). These subsections provide that, on his or her first court appearance after arrest, the High Court must fix a date for the surrender hearing. This date must be not later than 21 days after the date of the person’s arrest. While the hearing should begin by that date, it may not necessarily be concluded on that day. However, it is felt that the references to the hearing date in subsections (1) and (2) of section 16 could be construed as meaning that the hearing must be concluded on day 21. It is, therefore, proposed to remove any doubt about the powers of the court to adjourn a hearing. This effectively allows the High Court to adjourn a surrender hearing in order to take its time on the issue, as appropriate, and to remove the possibility that someone will state it must do so on the day or not at all. Amendment No. 49 relates to section 20, which provides that the High Court or the central authority if they are of the opinion that documentation is not provided by the requesting state or is not sufficient, may require the issuing judicial authority to provide it with additional information within specified time frames.
The same problem arises in Britain, whereby the issuing judicial authority, for example a magistrate in Bermondsey, might not be in a position to provide additional material. In that case, it must be the prosecuting authority. Either the British Government or the DPP in Britain, or whoever, appoints the competent authority. This also applies to Scotland, Malta, Cyprus and other countries with gradations of common law judiciary. We must bear these in mind.
Deputy's Costello proposal is wise, and I support it. Can the Minister undertake to give a full outline in support of the sections now proposed and any new sections he might propose on Report Stage? I am prepared to take on trust that these amendments are an improvement on the present situation and are necessary.
We are dealing with an earlier section with regard to re-entering it on Committee Stage. Can we do the same with this amendment?
I have no problem undertaking a more thorough investigation of the matter, if necessary, on Committee or Report Stage. I have agreed to recommit to a full committee-style hearing in the House on any of the new material.
There may be no delay, but we may not have time if the investigation takes place only on Report Stage.
I move amendment No. 43:
In page 53, after line 22, to insert the following new section:
62.—The Act of 2003 is amended by the substitution of the following section for section 10:
10.—Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person—
(a) against whom that state intends to bring proceeding for an offence to which the European arrest warrant relates,
(b) who is the subject of proceedings in that state for an offence to which the European arrest warrant relates.
(c) who has been convicted of, but not yet sentenced in respect of, an offence to which the European arrest warrant relates, or
(d) on whom a sentence of imprisonment or detention has been imposed in respect of an offence to which the European arrest warrant relates, and who fled from the issuing state before he or she—
(i) commenced serving that sentence, or
(ii) completed serving that sentence,
that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state.'.".
I move amendment No. 44:
In page 53, after line 22, to insert the following new section:
63—Section 11 of the Act of 2003 is amended by—
(a) the substitution of the following subsections for subsection (1):
‘(1) A European arrest warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision.
(1A) Subject to subsection (2A), a European arrest warrant shall specify—
(a) the name and nationality of the person in respect of whom it is issued,
(b) the name of the judicial authority that issued the European arrest warrant, and the address of its principal office,
(c) the telephone number, fax number and e-mail address (if any) of that judicial authority,
(d) the offence to which the European arrest warrant relates, including the nature and classification under the law of the issuing state of the offence concerned,
(e) that a conviction, sentence or detention order is immediately enforceable against the person, or that a warrant for his or her arrest, or other order of a judicial authority in the issuing state having the same effect, has been issued in respect of the offence,
(f) the circumstances in which the offence was committed or is alleged to have been committed, including the time and place of its commission or alleged commission, and the degree of involvement or alleged degree of involvement of the person in the commission of the offence, and
(g)(i) the penalties to which that person would, if convicted of the offence specified in the European arrest warrant, be liable,
(ii) where that person has been convicted of the offence specified in the European arrest warrant but has not yet been sentenced, the penalties to which he or she is liable in respect of the offence, or
(iii) where that person has been convicted of the offence specified in the European arrest warrant and a sentence has been imposed in respect thereof, the penalties of which that sentence consists.',
(b) the insertion of the following subsection:
‘(2A) If it not practicable for any of the information to which subsection (1A) (inserted by section 63(a) of the Criminal Justice (Terrorist Offences) Act 2004) applies to be specified in the European arrest warrant, it may be specified in a separate document.’.”.
I move amendment No. 45:
In page 53, after line 22, to insert the following new section:
64.—Section 12 of the Act of 2003 is amended by—
(a) the substitution, in subsection (2), of ‘issuing judicial authority or the issuing state, as may be appropriate,’ for ‘issuing judicial authority’,
(b) the insertion of the following subsection:
‘(3A) An undertaking required under this Act may be sent out in the European arrest warrant or in a separate document.',
(c) the substitution, in subsection (4), of ‘any such regulations’ for ‘such regulations’,
(d) the substitution, in subsection (5), of—
(i) ‘issuing judicial authority or the issuing state, as may be appropriate,' for ‘issuing judicial authority' in each place that it occurs,
(ii) ‘regulations (if any) under subsection (10)' for ‘regulations under subsection (10)',
(iii) ‘any such regulations' for ‘such regulations',
(e) the substitution, in subsection (6), of ‘issuing judicial authority or the issuing state, as may be appropriate,’ for ‘issuing judicial authority’ in each place that it occurs,
(f) the substitution, in paragraph (b) of subsection (8), of ‘an issuing judicial authority or the issuing state, as may be appropriate,’ for ‘a judicial authority in the issuing state’,
(g) the insertion, in subsection (8), of the following new paragraph:
‘(c) a document referred to in section 11(2A) (inserted by section 63(b) of the Criminal Justice (Terrorist Offences) Act 2004),’
(h) the substitution of the following subsection for subsection (11):
‘(11) In this section—
"European arrest warrant" includes a document referred to in section 11(2A) (inserted by section 63(b) of the Criminal Justice (Terrorist Offences) Act 2004);
"undertaking" includes a statement under section 11(3);'.".
I move amendment No. 46:
In page 53, after line 22, to insert the following new section:
65.—Section 14 of the Act of 2003 is amended by—
(a) the substitution, in subsection (6), of ‘issuing judicial authority or issuing state, as may be appropriate,’ for ‘issuing state’, and
(b) the substitution, in subsection (10), of the following definition for the definition of ‘Schengen alert’:
‘"Schengen alert" means a document that—
(a) indicates that—
(i) a European arrest warrant has been issued by a judicial authority in a Member State in respect of that person named in the document on such date as is specified in the document, and
(ii) where appropriate, a statement has been provided under section 11(3) by the issuing judicial authority or the issuing state, as may be appropriate, in respect of that person on such date as is specified in the document,
(b) has been transmitted by electronic means by or on behalf of the judicial authority concerned or the issuing state concerned, as may be appropriate, to the Garda Síochána, using equipment designed, or intended for use, for the purposes of the Schengen Information System, and
(c) is capable of being viewed by the Garda Síochána by means of equipment designed, or intended for use, for those purposes;’.”
I move amendment No. 47:
In page 53, after line 22, to insert the following new section:
66.—Section 15 of the Act of 2003 is amended by—
(a) the substitution of the following subsection for subsection (3):
‘(3) An order under this section shall take effect upon the explanation of 10 days beginning on the date of the making of the order or such earlier date as the High Court, upon the request of the person to whom the order applies, directs.',
(b) the substitution, in subsection (5), of the following paragraph for paragraph (a):
‘(a) the order takes effect in accordance with subsection (3) (inserted by section66(a) of the Criminal Justice (Terrorist Offences) Act 2004), or’.”.
I move amendment No. 48:
In page 53, after line 22, to insert the following new section:
67.—Section 16 of the Act of 2003 is amended by—
(a) the substitution of the following subsection for subsection (1):
‘(1) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9) the High Court may, upon such date as is fixed under section 13 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that—
(a) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,
(b) the European arrest warrant, or a facsimile or true copy thereof, has been endorsed in accordance with section 13 for execution of the warrant,
(c) a statement under section 11(3) and such undertakings as are required under this Act, or facsimile or true copies thereof, are provided to the court,
(d) the surrender of the person is not prohibited by section 22, 23 or 24, and
(e) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).’,
(b) the substitution of the following subsection for subsection (2):
‘(2) Where a person does not consent to his or her surrender to the issuing state or has withdrawn his or her consent under section 15(9), the High Court may, upon such date as is fixed under section 14 or such later date as it considers appropriate, make an order directing that the person as is duly authorised by the issuing state to receive him or her, provided that—
(a) the European arrest warrant and, where appropriate, a statement under section 11(3), and such other undertakings as are required under this Act, or facsimile copies or true copies thereof are provided to the court,
(b) the High Court is satisfied that the person before it is the person in respect of whom the European arrest warrant was issued,
(c) the surrender of the person is not prohibited by section 22, 23 or 24, and
(d) the surrender of the person is not prohibited by Part 3 or the Framework Decision (including the recitals thereto).’,
(c) the insertion of the following subsection:
‘(2A) Where the High Court does not—
(a) make an order under subsection (1) on the date fixed under section 13, or
(b) make an order under subsection (2) on the date fixed under section 14,
it may remand the person before it in custody or on bail and, for those purposes, 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.',
(d) the substitution of the following subsection for subsection (3):
‘(3) An order under this section shall take effect upon the expiration of 15 days beginning on the date of the making of the order or such earlier date as the High Court, upon the request of the person to whom the order applies, directs.',
(e) the substitution, in subsection (5), of the following paragraph for paragraph (a):
‘(a) the order takes effect in accordance with subsection (3) (inserted by section 67(a) of the Criminal Justice (Terrorist Offences) Act 2004), or’.”.
I move amendment No. 49:
In page 53, after line 22, to insert the following new section:
68.—Section 20 of the Act 2003 is amended—
(a) in subsection (1), by the substitution of ‘issuing judicial authority or the issuing state, as may be appropriate,’ for ‘issuing judicial authority’, and
(b) in subsection (2), by the substitution of ‘issuing judicial authority or the issuing state, as may be appropriate,’ for ‘issuing judicial authority’.”
I move amendment No. 50:
In page 70, paragraph 2, to delete line 14.
This is a short amendment, and relates to the first of the non-fatal offences against the person included in the list of terrorist activities. Line 14(a) refers to "assault causing harm". This is not a terrorist type of offence. Line 15(b) refers to "assault causing serious harm." Everything is thrown into the pot with regard to what constitutes a terrorist offence.
I agree with the Deputy's point. A bruise or welt, or a slap in the face that leaves a mark might all constitute assault causing harm.
I will tell Eamon Dunphy about this.
I will look into the matter between now and Report Stage to see whether it should refer to serious harm.
I move amendment No. 51:
In page 70, paragraph 5, line 32, after "1991" to insert the following:
"which causes significant or widespread damage"
This is similar to the previous amendment. It refers to "Any offence under section 2 (damaging property) of the Criminal Damage Act, 1991." I propose to insert "which causes significant or widespread damage" to indicate the offence to be of such a serious nature it could come under the heading. Normal damage of property is not necessarily a terrorist offence.
I asked the Attorney General to consider whether we could qualify some of the offences in Schedule 2 by reference to their potential outcomes. I suggested that in keeping with the aims and provenance of the Bill, it might be appropriate to include a provision to ensure that relatively minor offences against property should not be deemed terrorist offences, namely those which did not endanger human life or cause extensive destruction resulting in major economic loss. The office of the Attorney General doubted whether minor acts would be prosecuted as a terrorist offence. For an act to be offence under the Bill, terrorist intent must be involved. The view was that it was not worth the effort trying to create gradations of seriousness, because in reality such prosecutions would not happen. The Attorney General will have a function in respect of offences.
The phrase "significant or widespread damage" is vague. What constitutes significant damage? Is breaking a window significant? Is breaking a plate glass window in a shop significant? Is breaking all the windows in an office block significant?
The paragraph refers to any offence under section 2, which is criminal damage. The wording leaves the definition totally open. There is no restriction on the seriousness of the offence. Terrorist activity does not refer to minor offences, but to more serious acts.
We have already raised this point with the Attorney General. We will look at it again to see if we can improve the Bill and make it more focused.
I move amendment No. 52:
In page 71, paragraph 9, to delete lines 28 to 30.
I am proposing to change the reference to the Firearms Act 1925. The purpose of the amendment is to remove this offence from the Schedule, because section 14 of the Firearms Act 1925, was repealed by section 28(1) of the Firearms Act 1964. That section no longer exists. It was an error in the Bill.
Is it still prohibited to manufacture weapons which discharge noxious liquids?
Prohibition of these weapons ceased in 1964.