I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials for the resumption of Committee Stage of the International Criminal Court Bill 2003. This meeting will be adjourned at 3.30 p.m., when the Sub-Committee on the Barron Report will meet in private. On the previous occasion, we adjourned after agreeing section 18, as amended.
International Criminal Court Bill 2003: Committee Stage (Resumed).
SECTION 19.
I move amendment No. 25:
In page 15, subsection (1), line 33, after "shall" to insert the following:
", on being satisfied as to the authenticity and sufficiency of the documents submitted to it,".
This amendment relates to section 19(1)(b), which refers to the production to the High Court of documents “purporting to be a certificate by the Minister” in regard to an International Criminal Court arrest warrant. It is a bleak way of presenting it that the High Court has no role — good, bad or indifferent — in this process, other than issuing the warrant. Given that the role of a court is to adjudicate, my amendment proposes that the High Court shall issue a warrant for a person’s arrest, addressed to the Garda Commissioner, only “on being satisfied as to the authenticity and sufficiency of the documents submitted to it”. As matters stand, it seems the High Court will simply rubber-stamp anything that comes before it without questioning its authenticity, validity or sufficiency. This subverts the role of that court, which has broader judicial and investigative functions in terms of the propriety of documents presented to it. In the context of the current wording, a document can purport to be many things but may not necessarily be so. It is a rather lax expression of what is required.
This is one of the most important aspects of the legislation, which provides for the steps to be taken by the Government to ensure that those who have committed atrocious acts against humanity are brought to justice. However, we are presenting lax procedures for doing so by providing that while the High Court is involved, it has no effective role. One might as well present the document to anybody because there is no duty of inspection or scrutiny and no obligation that the High Court must be satisfied that the document is what it purports it to be. The provision is not sufficiently presented to safeguard against abuse.
The issue I have with this section is different from that raised by Deputy Costello but, for the sake of expediency, the Minister might deal with both together. Why is the phrase "a document purporting to be a certificate by the Minister" used? It would make more sense and be more appropriate to say "a certificate by the Minister". It seems an odd way of phrasing the matter. I appreciate the point raised by Deputy Costello and await the Minister's response to it. However, I assume that the High Court has, at all stages, an inherent jurisdiction to be satisfied as to the authenticity of any document presented to it and would not act unless it is so satisfied. I ask the Minister to deal also with the point I have raised.
This is a technical issue and relates to a question of proof. Section 19 must be read in conjunction with section 18. The latter envisages the Minister certifying that a request has been duly made by the International Criminal Court, examining the documentation presented to him or her by that court and engaging in certain circumstances with the court in regard to that documentation. Section 19 provides that once the Minister has certified the request, the High Court shall issue a warrant for the person's arrest and that this shall be addressed to the Commissioner of the Garda Síochána.
Deputy Jim O'Keeffe inquired about the purpose of the phrase "purporting to be a certificate". This wording is designed to ensure that it is not necessary to prove the Minister's signature. In other words, it is not required for another person to say that the Minister signed the document and to produce evidence in that regard. I will consider an amendment for Report Stage that would replace the phrase "a document purporting to be a certificate by the Minister" with the wording "a certificate by the Minister". I will also include a subsection to the effect that in any proceedings before the court, a document "purporting" to be a certificate shall be presumed to be such until the contrary is shown.
I do not want to create the impression that if a barrister comes to court and hands up a document purporting to be signed by me, the court will be obliged to order an arrest. The court has an inherent jurisdiction to examine a document if it has any reason to doubt it. The court is not absolutely bound to assume, against its instincts, that a document which looks like a forgery is genuine.
If it makes the Deputies opposite happier, the formulation I propose — whereby a certificate will be produced along with copies of the request and accompanying documents — might deal better with the issue. I also propose in a later subsection that a document purporting to be a certificate from the Minister shall be presumed to be such a certificate until the contrary is shown.
I took the liberty of consulting the Oxford English Dictionary on the meaning of the word "purporting". It defines it as professing to be, being intended to seem or appearing ostensibly to be——
I will take the last of those three definitions. A document which appears ostensibly to be a certificate from the Minister shall be presumed to be a certificate from the Minister until the contrary is shown. One does not want a judge to have to state that he or she recognises the signature of the Minister and that he or she was there when the document was signed. That would add another layer to the procedure.
That is fine. Regarding the other matter——
On the broader point of the court being satisfied, under this scheme, that is left to the Minister. It is easier for a Minister or his or her officials to phone the International Criminal Court in Rome to obtain information, rather than have a court engage in negotiation and verification. Our system is adversarial and it is better that a party before a court examine and present the documentation to the court rather than asking the court to engage in its own independent verification procedure.
Section 16(3) of the Bill provides for the Minister to request further information or documents if he or she is of the opinion that the information received is insufficient. The Minister's function should be viewed as executive in nature in that he or she will obtain as much material as is considered necessary to present an application to the court and will discuss with the International Criminal Court the adequacy of the material furnished. It is better to do it that way than have a court here enter direct negotiations with the International Criminal Court as to what should be before it. Our system is not designed to allow the courts to make inquiries of other courts on the adequacy or sufficiency of documents sent.
What is the purpose of referring the document to the High Court if it has no role in examining it? There is no connection between presenting the document and issuing a warrant. The two are not contingent, other than simply a procedural——
One could have a system where the Minister would simply hand a warrant to the Commissioner and instruct him or her to execute it. In order for somebody whose door is knocked upon and to whom a warrant is presented to decide whether he or she should comply, it is preferable that it should be a court document with the authority of the judicial arm of the State rather than an executive act.
I made reference to hearings in Rome. Those hearings will, of course, take place in The Hague.
Or down in Shannon.
It seems that the system of producing the document in court is intended for the transposition of the International Criminal Court conventions into legislation in other European countries rather than those with the common law system. We know——
That is the difference between that system and the common law system. Our courts are primarily arbitral chambers which do not have agendas of their own and which do not make telephone calls to other bodies to request further information. The function of a judge——
The investigating role——
The function of a judge under the common law system is arbitral. A judge examines the material before him or her and does not decide that more information is necessary to make a decision. He or she does not make a telephone call to obtain more information. In civil law jurisdictions, the courts may be more organic, executive-type institutions. We must remember the nature of our courts.
It seems in this case that all power rests with the Minister.
Yes. Well, not really because the court will issue the warrant——
The court will rubber-stamp it.
In this case, the court will issue the warrant but it will be done on the application of the Minister on a certificate. I have no doubt that a court possesses inherent jurisdiction to refuse to do so for constitutional reasons.
Is the Minister stating that a court could have a role in determining the sufficiency of the documentation?
No, I am not stating that it is a function of the court at that point. Under the Constitution, a court has an inherent power to prevent its jurisdiction being abused in any way if a judge is of the view that what he or she is asked to do is manifestly wrong. Judges are independent under the Constitution and cannot be directed by the Executive with regard to what they must do.
It seems likely that the Taoiseach and the Minister will direct them in the near future.
Amendment, by leave, withdrawn.
Section 19 agreed to.
Section 20 agreed to.
SECTION 21.
Question proposed: "That section 21 stand part of the Bill."
I wish to raise a point in respect of the terminology used in this section. We are seeking holes in the Bill in order that we will have an opportunity to close them at this stage. Is the wording of section 21(1)(b), “that the person is in, or on the way to, the State,” a clumsy form of expression? I presume it involves a person en route or thought to be en route to the State.
One could use the phrase "en route” but the Parliamentary Counsel prefers to use plain English such as the term “on the way to”.
I will put forward some suggestions because we are fine-combing the Bill. I thought perhaps another formulation would be, "that the person is in, or expected to be in, the State". I merely raise the matter for discussion. The Parliamentary Counsel and others responsible for drafting legislation can examine it.
Section 21(3) states:
Where, at any time before the execution of the warrant, it appears to the Minister that a request for the surrender of the person named in it will not be received from the International Criminal Court or that proceedings will not be instituted by it against the person, the Minister may by order cancel the warrant and shall forthwith cause the High Court to be notified accordingly.
A warrant might be sought by the International Criminal Court and the Minister might be asked to process it but, for whatever reason, the former might decide not to proceed to finality. If the person who is the subject of the warrant has been identified as having committed a crime against humanity, does a domestic issue not arise in that the International Criminal Court has determined that he or she committed atrocious crimes and is either in this jurisdiction or on the way here? Does a responsibility not lie with the State to ensure that the citizens of this jurisdiction are protected, even if the International Criminal Court is not prepared to proceed to finality with the matters for which it initially issued the warrant, for whatever reason, technical or otherwise?
Section 21(1) states:
The High Court may issue a warrant (in this Part referred to as a "provisional arrest warrant") for the arrest of a person on the sworn information of a member of the Garda Síochána not below the rank of inspector that he or she has reason to believe—
(a) that the International Criminal Court has made a request under Article 92 for the provisional arrest of the person on grounds of urgency,
(b) that the person is in, or on the way to, the State,
The first thing that must happen is that an inspector or superior Garda officer must swear in court that he believes the International Criminal Court has requested the issue of a provisional arrest warrant on the grounds of urgency because the International Criminal Court does not yet have its own documentation available. A provisional warrant, about which the Minister is informed immediately, is then issued. If, at any time before the warrant — which would require the person to be brought before the court — is executed, it appears to the Minister that the International Criminal Court will not send the underlying warrant necessary to ground the proceedings or that it will not proceed against the person, the Minister, by executive order, will cancel the warrant and inform the High Court about what happened.
This process is designed to safeguard, to the greatest possible extent, the rights of an individual who is the subject of the application for a provisional arrest warrant. If, on second thoughts, the International Criminal Court indicated to the Minister that, although it contacted the authorities in Ireland and asked them to obtain an arrest warrant for somebody who was either in this country or on his way here, we had the wrong person in custody and would not proceed against him, that individual will not be reduced into captivity and brought before the courts. Instead, the process will be immediately terminated.
I accept that position, which is correct, but my question relates to a different matter. It might be the case that a person is no longer in the jurisdiction and, therefore, that the warrant is not relevant. However, proceedings against the person might not be instituted by the International Criminal Court for some other technical reason, despite that person having committed a crime against humanity. Should the Bill contain a mechanism to protect our citizens from somebody who may have been involved in pillage, plunder, rape or murder but against whom there may not be sufficient evidence or who may, on foot of some technical point, escape prosecution?
Assuming that this fugitive was not an Irish citizen, he or she would, by definition, be a non-national. If he or she was a threat to public order or security, the Minister has powers under the relevant legislation to exclude him or her from the State on ordre public grounds. Therefore, if the Minister heard that, for example, Adolf Eichmann was on his way to Ireland and the Irish people had to be protected from him but the court in the Hague had, for some reason, stayed its hand in regard to him, that would not subtract from the Minister’s right under the ordinary law of the land to exclude such a person on public safety and security grounds.
This relates to a matter we discussed previously with regard to one or two well known criminals from the Czech Republic who moved to this country, the extradition of whom the Czech Government is seeking. However, due to the manner in which the extradition legislation was transposed——
It is not just that they are unsavoury characters or that they are accused of having breached the law in their home country; there would have to be a serious security threat to the Irish people. As the Deputy is aware, the problem with the transposition of Czech European arrest warrants is that we have completely scrapped — because we believe we are obliged to do so under the European arrest warrant — the capacity to take pre-European arrest warrant documents from member states. We believe that the Czech interpretation of the European arrest warrant framework decision is defective, that the Czechs have incapacitated themselves and that the problem lies at their end of the transaction.
I agree with the Minister. He is quite right that the fault, in so far as there is one, lies with the Czech transposition of the document. Has the Minister brought to the attention of the Council of Ministers that the mechanism used by some EU member states to transpose the new European arrest warrant arrangements——
I understand that the Czech Republic has been made aware of this difficulty and that it is considering amending its law to address it.
Very good.
Question put and agreed to.
SECTION 22.
Question proposed: "That section 22 stand part of the Bill."
With regard to the reference to showing the warrant and giving a copy, do I take it that, under subsection (2), the 24-hour period applies to both the warrant and the copy and that the member arresting has 24 hours to produce the originals and show the copy?
Section 22 states:
(2) The member executing the warrant shall show the warrant to the arrested person and give him or her a copy of it—
(a) at the time of the arrest, or
(b) if the warrant is not then in the member’s possession, within 24 hours after the arrest.
The purpose of this subsection is to enable a person to be telephoned and informed that a warrant exists and for the arresting member to be able to execute without the warrant and then to show that warrant and give a copy of it to the person within 24 hours. In other words, there is 24 hours in which to produce the warrant——
To do both.
Yes, to do both.
That seems sensible, as long as the Minister believes the section is sufficiently clear.
Section 22(1) states, "even if the warrant is not in the member's possession." Should the Bill reflect that this eventuality would only arise in exceptional circumstances and that, normally, it would be the case that the warrant is available and is executed by showing it to the arrested person?
Yes. However, if I try to address the issue now referred to by Deputy Costello, I will be obliged to include a clause to the effect that the member shall, where practicable, produce the warrant. We would then have an argument as to whether it was practicable to bring the warrant to County Mayo or wherever, or whether the person should have been arrested immediately and shown the warrant later. While it is a case of six of one and half a dozen of the other, if one inserts a "where practicable" arrangement, one will find that people will argue about it. They will ask why it was not complied with and will assert that it would have been practicable to bring the warrant or whatever.
These are extremely grave crimes. If a well-known international genocidist managed to evade Irish jurisdiction while a warrant for his or her arrest existed in Dublin by hopping on an aeroplane from Shannon Airport because a judge felt it would be practicable to send the warrant to Shannon in a squad car, and that he or she would be caught before taking his or her six o' clock flight to wherever, the embarrassment would be huge. Bearing in mind the extremely narrow range of these offences, we are better off ensuring that fugitive offenders are made amenable to our courts.
I am sympathetic to the Minister's thinking in this respect. As I want to ensure that all possible loopholes are closed, I will present a scenario in respect of the issue which I raised. Given the manner in which this is currently framed, if one was trying to find a "get out" clause on technical grounds, could one possibly argue that at the time of the arrest, while the arresting member had the original in his or her possession, he or she did not have a copy available to hand to the suspect? On that basis, the 24 hour period would not be available or could not be extended, because from the perspective of giving a copy, at present this is only applicable where the warrant is not in the member's possession. Does the Minister take my point?
Yes.
There could be a half-way situation which could provide a loophole.
I have a degree of sympathy for the Deputy's point. The notion of executing a warrant, even though it is not in the member's possession, and being obliged afterwards to produce the original, although one always had possession of a copy which could have been shown to the person, is slightly odd.
I am worried that this might constitute a technical loophole.
I will reconsider this matter as I do not want a loophole to exist.
Subsection 22(6) states, "On the making of such an order the arrested person shall be entitled to free legal aid in the proceedings." Will this be subject to income and normal procedures for free legal aid, or is this supposed to be an automatic entitlement?
An automatic entitlement is envisaged in this respect. The phrase "as if he or she had been granted a legal aid certificate" means that it will be automatic.
Will this be irrespective of whether such a person is——
A multimillionaire.
——found with a stash of jewels or whatever he or she might have taken from a poor country?
If such items are suspected as being proceeds of crime or whatever, they should not be applied to the payment of Irish lawyers.
That would be a new use for the proceeds of crimes, or perhaps not so new.
They would probably need it. I simply find it strange that the Minister wishes to provide anyone who is charged with the greatest and most serious crimes on the face of the earth with an automatic entitlement to free legal aid. This jurisdiction does not owe any international criminal an automatic right to free legal aid any more than it owes it to those charged with domestic crimes.
In these cases, it would probably save time to grant legal aid. It would be an entitlement and the person in question would not be obliged to take a legal aid lawyer. This would probably save time rather than having a hearing as to his or her means and arguing whether the stash of jewels was his or her property. Instead, a legal aid lawyer would be offered. These cases will occur rarely and it probably makes sense not to have a special hearing as to the means of the person.
I had in mind the scenario whereby such a case arose while the Minister for Justice, Equality and Law Reform was still in office and the public saw such people in receipt of free legal aid. Despite credible crimes of genocide or whatever, the taxpayer would foot the bill, while such individuals might well have bank accounts all over the world.
Would it outrage the public more to know that this happened or that the money from the accounts all over the world had been put into the hands of Irish lawyers?
I have no doubt as to the answer to that question.
The provision of free legal aid would cause greater outrage as Irish lawyers would also be providing it.
Thus far, it was thought that this would save time and bother, rather than having separate hearings on entitlement to legal aid in these rare cases which are for extremely serious crimes, not to have arguments as to whether such individuals could afford to retain counsel and solicitors.
I will oppose this section.
I will report the Deputy to the Law Society and the Bar Council.
Before we leave this section, I suggest that the Minister should ask the draftsman to consider the inclusion of two words in section 22(2)(b), namely, “if the warrant [or copy] is not then”. This may deal with the point I raised. I bring it to the draftsman’s attention as a possible solution and will be satisfied if the matter is considered.
Question put and agreed to.
Sections 23 and 24 agreed to.
SECTION 25.
I move amendment No. 26:
In page 19, subsection (2)(a)(ii)(II), line 23, to delete “full”.
This is a technicality. There is an anomaly in respect of section 25(2)(a)(ii)(I) and section 25(2)(a)(ii)(II). The first clause states that the High Court shall, in reaching a decision of the application, “have regard to the principles set out in paragraph 4, first sentence of Article 59”. The second will “give full consideration to any recommendations made by the Chamber in relation to the application”. As for the phrase “full consideration”, I believe that the two clauses should reflect each other. In other words, section 25(2)(a)(ii)(I) should “have full regard to the principles set out in paragraph 4, first sentence” to match the phrase “give full consideration to any recommendations”. The normal phraseology is “due consideration”. Does one give full, fuller and fullest consideration?
Scant consideration.
Due consideration would seem to——
Unfortunately, the statute uses the word "full". This is where the phrase came from, rather than from the Department's parliamentary draftsman. If the Deputy examines Article 59.5, which appears on page——
Yes. Article 59.5 states "the competent authority in the custodial State shall give full consideration to such recommendations" and appears on page 85.
It is true to the wording of the statute.
Where is that stated?
Page 85, Article 59.5, line 13.
If the Minister gives full consideration to any recommendations made and adheres to the terminology used in that article, would it also be appropriate in subsection (1) to have full regard to the principles set out in paragraph 4? Is it consideration to a lesser degree? He need only have mere regard to the principles set out but must give full consideration to the recommendations made.
If one looks at the top of page 85, one will see that the word "consider" is used, not "fully consider".
The Minister need not slavishly follow——
No, but when in doubt, stick to the original text would be the draftsman's instinct. If one departs from the text of a convention, somebody will say that was a deliberate decision which must have some meaning. There is then a discussion as to whether it will be right for the court in three or five years' time to have regard to what Deputy Costello and I are now saying.
I will bow to the Minister's wisdom in the matter.
Amendment, by leave, withdrawn.
Section 25 agreed to.
As it is now 3.30 p.m., I suggest we adjourn until 9.30 a.m. on Thursday, 9 March 2006. Is that agreed? Agreed.
Progress reported; Committee to sit again.
The select committee adjourned at 3.30 p.m. until 9.30 a.m. on Thursday, 9 March 2006.