I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials to resume consideration of Committee Stage of the International Criminal Court Bill 2003. It is proposed to adjourn this meeting by 11 a.m.
On the last occasion we adjourned having agreed section 25. We, therefore, turn to section 26, to which no amendments have been tabled.
Subsection (2) states, "A person so removed shall continue to be in lawful custody while in the hospital or other place". What happens if someone must be detained in hospital for a lengthy period?
The Bill states that where a person has been committed under a surrender order, he is in lawful custody while in hospital or any other place. Effectively, as long as he is there, it is on foot of the order, unless the time limit on it expires.
If he or she required medical treatment, necessitating detention in hospital on a continuing basis, say, for a month, would the situation still be covered?
I should have drawn the Deputy's attention to section 32(3), which states:
If the Court is satisfied—
(a) that the person’s state of health or other circumstances beyond the control of the Minister or the International Criminal Court or, as the case may be, the state of enforcement have prevented the person from being surrendered under this Part, and
(b) that it is likely that within a reasonable time those circumstances will no longer apply,
it may fix a period within which the person may be so surrendered, and the person shall be released if not surrendered within that period.
That is where somebody's health has deteriorated seriously. Deputy Costello has apparently tabled an amendment to that section which we are considering — to determine whether he is right or wrong in his amendment.
That is all right, so long as the issue is covered.
I move amendment No. 27:
In page 21, subsection (1), to delete lines 6 and 7 and substitute the following:
"30.—(1) The Minister shall postpone the making of an order under section 29 where the period referred to in section 26 has not expired, and may, on or following the conclusion of that period, postpone the making of such an order—”.
Paragraph (a) of section 30(1) provides that the Minister may postpone the making of a surrender order until the ICC has determined any challenge to the admissibility of the case or to its jurisdiction. The proposed amendment from Deputy Costello seeks to alter the wording of the first two lines of subsection (1). The effect would be that there would now be a specific reference to the Minister postponing the making of an order for the surrender of a person to the custody of the ICC or the state of enforcement, where the period of time referred to in section 26 had not expired. The suggested alternative wording is unnecessary as section 26 already provides for a mandatory time lapse before a person who is being committed under a surrender order made by the High Court, will be surrendered. That is section 26, for the Deputy’s reference.
The role of the Minister is to make the necessary arrangements for the transfer pursuant to an order made under section 29. Any such order is subject to the mandatory time lapse provision, already there in section 26. The Minister cannot direct that a person be surrendered until the requirements of the entire Part of the Act, including section 26, have been complied with. We therefore consider that the amendment is not necessary and we do not propose to accept it.
The wording of section 30 is that "The Minister may postpone the making of an order" until such time has been determined, yet in section 26 there is an assertion to the effect that 15 days will have elapsed before "a person who has been committed under a surrender order shall not be surrendered to the International Criminal Court". On the one hand, there is a categorical statement as regards a time period while, on the other, the Minister may postpone the making of an order. Surely that should read that "The Minister shall postpone". A period of 15 working days or whatever is being given and the Minister is being allowed to postpone the making of an order rather than the Bill stating that the "Minister shall postpone the making of an order". It seems the two sections need to be synchronised in the language used in order that it is clear what precisely is intended.
This is fundamentally a question of drafting, but the intention is clear. Section 29(1) states:
Subject to this Part, the Minister may by order direct that a person who has been committed under a surrender order shall be surrendered to the custody of another person who in the Minister's opinion has been duly authorised in that behalf by the International Criminal Court or the state of enforcement, as the case may be, and the person shall be surrendered accordingly.
This Part includes section 26 which states a person shall not be surrendered within the period——
A minimum of 15 days.
That is correct.
Yet the Minister may postpone the making of an order.
If the Deputy looks at his amendment, he is effectively saying the same thing. He is saying "The Minister shall postpone the making of an order under section 29 where the period referred to in section 26 has not expired, and may, on or following the conclusion of that period, postpone the make of such an order”. It is six of one and half a dozen of the other.
It refers to after the period has expired. At least the Minister is acknowledging and adhering to the 15-day period. Section 30, as it stands, is subverting the——
We are interpreting the phrase, "Subject to this Part" in section 29(1) as saying subject to section 26.
Where is that?
It is the first line of section 29, "Subject to this Part ...".
It is section 29, on the bottom of page 20.
What does "This Part" mean?
"This Part" includes section 26, which says he or she "shall not be surrendered" during the relevant period.
Does that make sense?
It makes exactly the same sense as the Deputy's amendment, in fact. There "shall not be" a surrender during the period is referred to in section 26 and there may be a postponement thereafter.
We have to look at the language. What does section 26 state? It states "a person who has been committed under a surrender order shall not be surrendered to the International Criminal Court" before 15 days have elapsed. Section 30 states the Minister "may postpone" the making of an order under section 29, until the ICC has determined any challenge to the admissibility. Paragraph (b) of section 26 refers to “proceedings (including any appeal proceedings and any proceedings before that Court in relation to the admissibility of the case or to the Court’s jurisdiction) in connection with the request for arrest and surrender” must be finally determined. However, section 30 says the opposite, namely: “The Minister may postpone the making of an order under section 29 ...” until the ICC has determined any challenge.
On the one hand, the Minister is saying he has an absolute statement that there will be a minimum of 15 days before anything happens and, on the other, he is being given flexibility to postpone or to act as he or she may see fit. There is a contradiction between the two.
I will look at the matter again to see if I can marry them.
There is a contradiction.
I do not think there is but if someone as intelligent as the Deputy can see a contradiction, it is better to get rid of it.
We can only imagine what a court would do.
It is just as well the matter is not coming before the courts.
I move amendment No. 28:
In page 21, subsection (5), line 33, after "Acts" to insert "or the Act of 2003".
I move amendment No. 29:
In page 22, subsection (3), line 20, after "period" to insert the following:
"or any extension thereof which may be directed by the Court from time to time in accordance with this section".
This amendment would provide for an extension of time which may be directed by the court from time to time in accordance with the section. It is to provide for the unexpected.
I am disposed to accept the amendment.
Amendments Nos. 30 and 31 are related and may be discussed together.
I move amendment No. 30:
In page 22, line 22, to delete “section 21(3)(b)”and substitute “section 21(3)”.
These are technical amendments which correct an error in the text in a cross-reference between sections 21 and 33.
I move amendment No. 31:
In page 22, line 24, to delete “21(3),”.
I move amendment No. 32:
In page 22, subsection (3), between lines 32 and 33, to insert the following:
"(a) with the consent of the person and of the state of enforcement, that any sentence or balance of a sentence which the person is liable to serve in the State shall be served in the state of enforcement,”.
In the event of a problem arising for someone who might be subject to a domestic custodial sentence, the amendment would allow all sentences to be served together, rather than forcing the person to shuttle between jurisdictions.
The amendment proposes that the person and the state of enforcement may consent that any sentence which the person is liable to serve in this State will be served in the state of enforcement. It deals with sentence enforcement issues which are distinct from and broader than the sentence enforcement provisions in the Rome Statute. It seeks to bring together two discreet areas, namely, the enforcement of International Criminal Court sentences and existing arrangements for the transfer of persons pursuant to the Council of Europe Convention on the Transfer of Sentenced Persons. The two issues should be kept separate.
The purpose of the Bill is to ensure the State meets its obligations to give effect to the Rome Statute which specifically deals with the enforcement of sentences following the conviction of persons by the ICC for ICC offences. It provides that any such imprisonment will be subject to the supervision of the ICC which may decide at any time to transfer a sentenced person to a prison of another state. The Rome Statute does not address the enforcement of a domestic sentence which the person concerned is liable to serve.
I can see the point the Deputy is making but it might complicate matters if we were to give the ICC a supervisory role on the issue of domestic sentences being served abroad. There is a parallel system in place under the Council of Europe convention to deal with this. The idea is not wrong, in principle, but two separate procedures should achieve the aim desired by the Deputy.
It is a question of what is the most practical arrangement.
I move amendment No. 33:
In page 24, between lines 1 and 2, to insert the following:
"(i) an order under section 4 of the Proceeds of Crime Act 1996,".
This section deals with realisable property, the freezing of assets and the enforcement of orders. There are four subheadings on page 24 of the Bill and it seems strange that the heading contained in my amendment is not included. Why is the Proceeds of Crime Act 1996 not included in the definition?
I am sympathetic to the point made by the Deputy. There are ICC freezing orders but there are also interim and interlocutory orders made under other Acts. The Proceeds of Crime Act 1996 provides for the making of interim 21 day orders and interlocutory orders for seven years. I want to ensure that I am not doing something unintended. However, if I am satisfied on the issue, I will accept the amendment on Report Stage.
Amendments Nos. 34 and 36 are related and may be discussed together.
I move amendment No. 34:
In page 25, between lines 15 and 16, to insert the following subsection:
"(5) Where a freezing order is made, and proceedings are pending in the High Court or another court, in which relief referred to in the definition of "realisable property" in section 36 is claimed, the High Court shall, on the making of a freezing order under this section, order the discharge of those proceedings and any interim or interlocutory order in the nature of a freezing order made in those proceedings.”.
The amendment proposes to insert a new subsection (5) in section 37. The existing subsections (4) to (9), inclusive, provide that the High Court may issue a freezing order prohibiting any person from dealing with the property of the person to whom the request relates, provided it is satisfied that the International Criminal Court has imposed, or is likely to impose, a fine, forfeiture or reparation order against the person concerned. When making a freezing order and the proceedings are pending regarding the relief referred to in the definition of realisable property in section 36, the amendment proposes that the High Court must order the discharge of those proceedings on making the freezing order. I am not sure what the word "relief" refers to in the definition of realisable property. In effect, the Deputy's amendment proposes that ICC freezing orders would discharge interim or interlocutory orders under other enactments. If the ICC does not impose a fine or make a forfeiture order against the person concerned, the opportunity would be lost to freeze those assets for domestic purposes, as all the other orders would have been discharged. If the status of property on hold is subject to an interim or interlocutory order, it could be argued that the State should continue to have some hold over it until the ICC issue is resolved.
I will look at this matter in more detail and come back to it on Report Stage. However, I do not want to provide for a potential order of the ICC and wipe out actual proceedings by discharging them in our jurisdiction. The purpose of freezing is to make money available for a contingency, that is, that the ICC will seize the property or issue a fine. If there is no contingency, I do not want a situation where there will be nothing left.
I agree. I am proposing that, where the ICC intervenes and is intent on making an order, it take precedence over whatever action is taken in the domestic court. The third line of the amendment reads, "on the making of a freezing order". I actually meant to include the words "on the completion of a freezing order". In other words, the ICC would have its order and that order would no longer be in the process. Once the order has been obtained there would not be similar type applications and orders in regard to——
I can see the merit of the High Court stating, in the context of a final order being made by the ICC, that other orders in a set of the same type should be discharged. I do not want to go further than that. I will consider the matter.
I move amendment No. 35:
In page 25, subsection (7)(d), line 33, after “made” to insert the following:
"and for the purposes of this paragraph, proceedings shall not be deemed to have concluded until the International Criminal Court has decided whether or not to make an ICC order, and in the event that such an order is made, until such time as any application under section 39 is finally determined, or until the Minister certifies that no application under that section is likely to be made”.
This amendment proposes to add additional wording to section 37(7)(d). Section 37 deals with freezing orders and subsection (7)(d) provides that a freezing order must be discharged on the application of the ICC or on the conclusion of the proceedings in regard to the order. The amendment specifies that the proceedings in regard to the freezing order shall continue until enforcement or until the Minister certifies the ICC will not seek enforcement. This amendment allows some useful flexibility. I am prepared to accept the amendment in principle but having consulted the Parliamentary Counsel I want to consider whether the wording is exactly as required.
The Minister has accepted the amendment in principle, subject to the wording.
I will deal with it on Report Stage.
We move to amendment No. 37. As amendment No. 40 is cognate, amendments Nos. 37 and 40 may be discused together.
I move amendment No. 37:
In page 27, subsection (2)(c), line 22, to delete “2001” and substitute “2003”.
There is an obligation on the registrar of the High Court to send to the Registrar of Titles an order which then has the effect of freezing the title to the land. Is a time limit required in this regard? Should there be a reference to requiring the registrar of the High Court to send notice of the making of the order? Is it assumed that the order of the High Court will be transferred to the registrar post haste. The Bill might be improved in this regard.
I will consider a time limit or an urgency clause.
There should be some element of urgency.
I do not want it to be the case that if something is not done in a specific time, it cannot be done at all.
That is why a time limit is probably not appropriate. However, we should inject some element of urgency. The Minister is aware that if court orders are not transmitted quickly, unfortunate consequences can arise.
Introducing a statutory nudge of the elbow to do the job quickly is one thing. However, it would be worse if the result is that the Bill states that if something did not take place in seven days, it did not take place at all.
I accept that. However, the Minister should consider introducing some element of urgency.
With regard to section 38, we are proceeding with the legislation with regard to the Registry of Deeds and the Land Registry. I may have to act to ensure that the terminology in this section is compatible with the new provisions for the new property registration agency.
Therefore, the Minister may change the reference to the Registration of Title Act 1964.
I may have to do something like that. I will have to be careful.
I move amendment No. 38:
In page 28, subsection (9), line 33, after "order" to insert the following:
"which appeared to the High Court to be a sum which might be realised by the person to whom the order is directed".
The Bill refers to "any sum payable under the ICC order". The amendment relates to the circumstances in which somebody may be imprisoned for failure to pay a fine. With regard to the wording "a sum which might be realised by the person to whom the order is directed", there is not much sense in having a fine imposed which might only theoretically coincide with the assets of a person before the court. Recognition of the ability of the person to pay should be the common accepted practice in this matter. We should not unnecessarily put a person in custody if that person is not realistically in a position to pay.
The amendment proposes to insert additional wording in section 39(9). The subsection states: "if at any time after the making of the enforcement order it is reported to the High Court that any sum payable under the ICC order remains unpaid, the Court may... order that the person to whom the ICC order relates be imprisoned". The amendment proposes that this will only apply in the case of a sum payable under the ICC order which appeared to the High Court to be a sum which might be realised by the person to whom the order is directed. The amendment is not necessary because a court will not imprison a person if he or she cannot realise his or her assets.
Subsection (10) states: "An order under subsection (9) of this section shall not be made unless the person to whom the ICC order relates has been given a reasonable opportunity to make representations to the Court." I presume that a person in those circumstances would know that it was not possible to realise his or her assets or pay the fine. The amendment is not necessary.
Subsection (9) states: "if at any time after the making of the enforcement order it is reported to the High Court that any sum payable under the ICC order remains unpaid". This gives very little room for manoeuvre. I am concerned the section could be used as a mechanism to keep a person in prison.
That is true. However, the Deputy should remember that subsection (10) allows people to make contrary applications.
Even if €5 is involved, it will be necessary to go to court.
Subsection (9) is modelled on section 19(2) of the Criminal Justice Act 1994. The existing wording is quite flexible and has been in operation for a long time.
The Minister was not around at the time.
I was in opposition. I do not intend going back there — anything but that.
Any small sum of money could be a reason for keeping a person in custody. The only way a person could get out of custody is to have recourse to the court.
I do not know what sum of money will be involved. We are not talking about €5 or €10. If somebody wilfully refuses to co-operate in the realisation of a fine, he should be liable to be dealt with as a contemnor and put into jail until he gets his act together. If there is no threat of jail or the sanction of a garda at the door to tell people they will be taken to Mountjoy Prison, many would refuse to pay even motoring fines.
I move amendment No. 39:
In page 30, subsection (2), line 42, to delete "is adjudicated bankrupt" and substitute the following:
"was adjudicated bankrupt before the commencement of this section".
This Government amendment provides for the relationship between bankruptcy proceedings and International Criminal Court orders. Section 43(2) excludes the property of any person already adjudicated bankrupt from the powers of the High Court receiver in respect of freezing or enforcement orders under the International Criminal Court Bill. The amendment ensures clarity in the scope of subsection 43(2), which is intended to cover those persons adjudicated bankrupt before the commencement of this section of the Bill. I, therefore, recommend the amendment to the committee.
I move amendment No. 40:
In page 32, subsection (1), line 3, to delete "2001" and substitute "2003".
As amendment No. 42 is an alternative to amendment No. 41, the two will be discussed together.
I move amendment No. 41:
In page 33, subsection (4), lines 14 to 27, to delete all words from and including "means" in line 14 down to and including "business." in line 27 and substitute the following:
"means—
(a) a person who holds or has held a licence from the Central Bank and Financial Services Authority of Ireland under section 9 of the Central Bank Act 1971,
(b) a person referred to in section 7(4) of that Act, or
(c) a credit institution (within the meaning of the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992)) which has been authorised by that Authority to carry on the business of a credit institution in accordance with the supervisory enactments within the meaning of those Regulations.”.
Section 47 deals with the currency of the payments under an enforceable International Criminal Court order. The amendment substitutes a revised subsection for the existing section 47(4). It deals with institutions authorised to certify exchange rates. An authorised institution is defined as a person who holds or has held a licence from the Central Bank and Financial Services Authority of Ireland, a person referred to in section 7(4) of the Central Bank Act 1971 or an authorised credit institution.
The new text mirrors section 11 of the Criminal Justice (Mutual Assistance) Bill 2005. The amendment takes account of changes in banking regulations since the Bill was drafted. The Central Bank of Ireland was restructured and renamed as the Central Bank and Financial Services Authority of Ireland in 2003. This bank carries out all of the activities formerly carried out by the Central Bank of Ireland, with additional regulatory and consumer protection functions for the financial services sector. The Irish Financial Services Regulatory Authority, IFSRA, which is an autonomous entity within the Central Bank and Financial Services Authority of Ireland, has responsibility for financial sector regulation and consumer protection.
The amendment proposed by Deputy Costello will be subsumed if this amendment is passed.
In this section, all moneys to be paid must be paid in euro. If someone produces sterling, on what date will it be it converted at the applicable rate?
The date on which the order is made.
The date on which the order is made, whatever——
Hence, subsequent movements of exchange rates will be irrelevant. While that could go either in favour of or against the person, there must be some certainty. One cannot have continually moving goalposts.
Amendments Nos. 43 and 44 are related and will be discussed together.
I move amendment No. 43:
In page 33, before section 49, but in Part 5, to insert the following new section:
"49.—(1) In this section—
‘bodily sample' means any of the following—
(a) a sample of blood, hair, urine or saliva,
(b) a nail or any material found under a nail,
(c) a swab from any part of the body,
(d) a footprint or a similar impression of any part of the body, including a dental impression;
‘consent' means consent in writing and a reference to the consent of a person is a reference to—
(a) in the case of a person who has attained the age of 17 years, the consent of that person,
(b) in the case of a person who has not attained the age of 17 years but has attained the age of 14 years, the consent of that person and of his or her parent or guardian, and
(c) in the case of a person who has not attained the age of 14 years, the consent of his or her parent or guardian;
‘dentist' means a person whose name is entered for the time being in the Register of Dentists maintained under the Dentists Act 1985;
‘doctor' means a person whose name is entered for the time being in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act 1978;
‘identification evidence' means a fingerprint, palm print or photograph of, or bodily sample from, a person and any related records.
(2) Subject to section 4, the Minister may, in pursuance of a request from the International Criminal Court under Article 93.1(a) for assistance in obtaining identification evidence, send the request to the Commissioner of the Garda Síochána for necessary action, if satisfied as to the matters mentioned in subsection (3).
(3) The matters referred to in subsection (2) are—
(a) that any identification evidence provided will be used only for the investigation or prosecution of an ICC offence, and
(b) that the evidence—
(i) will be returned by the Court when no longer required for that purpose, unless the Minister indicates otherwise, or
(ii) will be dealt with in accordance with subsections (12) and (13).
(4) If or in so far as the identification evidence requested is not in the possession of the Garda Síochána, the Commissioner shall instruct a member of the Garda Síochána (a 'member") to inform the person who is to provide the evidence—
(a) of the nature of the evidence,
(b) that it has been requested by the International Criminal Court in connection with the investigation or prosecution of an offence within its jurisdiction,
(c) that he or she is not obliged to provide the evidence, and
(d) that, if he or she does consent to provide it, it may be given in evidence in proceedings before the Court.
(5) If the person consents to provide the evidence, the member may take the evidence, or cause it to be taken, in compliance with the request and any requirements specified in the request in relation to its taking.
(6) If a person who is to provide the identification evidence is in custody—
(a) evidence may be taken under this section only if it relates to an offence other than that for which the person is in custody, and
(b) any evidence provided may be taken where the person is in custody or at another place.
(7) A bodily sample consisting of blood, pubic hair or a swab from a body orifice (other than the mouth) or a genital region may be taken under this section only by a doctor, and a dental impression may be so taken only by a dentist or doctor.
(8) If required by the Court, the Commissioner may arrange for a forensic test to be performed on a swab from a body orifice or a genital region.
(9) A sample of hair other than pubic hair may be taken under this section by cutting hairs or by plucking hairs singly with their roots and, where hairs are plucked, no more shall be plucked than the person taking the sample reasonably considers to be necessary to constitute a sufficient sample for the purpose of forensic testing or comparison purposes.
(10) The following particulars shall be recorded by the member who takes identification evidence—
(a) the place, time and date at which it was taken,
(b) the result of any forensic test on the evidence,
(c) any other relevant particulars, including any specified by the Court,
and the record shall include a copy of the consent to the taking of the evidence.
(11) The Commissioner shall send to the Minister any identification evidence—
(a) in the possession of the Garda Síochána, or
(b) taken under subsection (5), together with a copy of the record made under subsection (10),
for transmission to the Court.
(12) When transmitting the identification evidence and record to the Court the Minister shall, if subsection (3)(b)(i) does not apply and subject to subsection (13), obtain an assurance that the evidence will be destroyed—
(a) if the person the subject of the investigation is not prosecuted, on the expiration of 12 months from the taking of the evidence, unless the failure to prosecute is due to the fact that the person has absconded or cannot be found, or
(b) if the person is prosecuted and is acquitted or discharged or the proceedings are discontinued, on the expiration of 21 days thereafter.
(13) The Minister may, at the request of the Court and having consulted the Director of Public Prosecutions, direct that any period mentioned in subsection (12) be extended for good reason.”.
This amendment substitutes a revised section for the existing section 49. The latter provides the mechanism whereby the International Criminal Court may request identification evidence to be provided so as to assist with the identification of a person. The section sets out the procedure to be followed when a request to obtain identification evidence is received and provides that identification evidence may be taken from a person only with his or her consent, if it is not already in the possession of the Garda. Intimate bodily samples may only be taken by doctors and dental impressions only by doctors or dentists. Provision is also made for the destruction of that identification evidence.
The purpose of the amendment is to align the provisions in the International Criminal Court Bill with those in the Criminal Justice (Mutual Assistance) Bill, which I recently introduced in the Seanad with a Second Stage contribution in Irish. In particular, it will be aligned with sections 61 and 64 of that Bill. The Criminal Justice (Mutual Assistance) Bill deals with mutual legal assistance in respect of criminal matters. It provides the legal basis for general mutual assistance, while the International Criminal Court Bill will provide, inter alia, for mutual assistance for the International Criminal Court. Accordingly, it makes sense to have the relevant provisions in both Bills closely aligned. Hence, the general law in respect of obtaining samples on the basis of mutual assistance will be the law for both the International Criminal Court and for foreign courts. I intend to align the two regimes.
That was part of the purpose of amendment No. 44, as there did not appear to be any definition of bodily samples or any clear alignment with the domestic position.
Amendment No. 43 deals with the matter covered by Deputy Costello's amendment.
As the Minister's amendment incorporates the thrust of my amendment, I am happy to agree to it.
I move amendment No. 45:
In page 36, subsection (5), line 34, after "satisfied" to insert "that there are reasonable grounds for believing".
This amendment inserts, after the word "satisfied", the phrase "that there are reasonable grounds for believing" into subsection (5). It is to clarify matters about which the District Court is to be satisfied. The latter must be satisfied that there are reasonable grounds for believing that the circumstances exist to justify the warrant.
I move amendment No. 46:
In page 37, subsection (7)(b), line 29, after “place” to insert “and any person found there”.
This amendment inserts, after the word "place", the phrase "and any person found there". This drafting amendment relates to section 50(7)(b). A named member of the Garda Síochána is authorised by warrant and on production thereof can search premises and any person found there. Otherwise, it might be argued that the clause relates purely to the property and not to people standing in the property.
People could be in a premises quite innocently. The Minister has used a broad brush in this respect.
While this is possible——
The warrant is to search the property and people could be there for any reason.
However, if one was to search a property while seeking something and people were present, one would be obliged to walk around them because one could not touch them. One would be obliged to continue searching the property——
What about the example of a shop? Consumers would be present.
I agree that there could be a completely innocent customer in a shop premises.
The customer would be obliged to let the Garda search them.
The Garda is reasonable in respect of such matters. However, if we distinguish between people who look shifty and those who do not, or between people who might or might not be party to some criminality, the warrant would be an extremely complicated document. Normally, gardaí do not search customers when searching a shop.
I understand the same phrase is used in the new Criminal Justice Bill.
Yes. However, if one is searching a premises, it is reasonable to make it clear that a person cannot exempt any documents simply by having them on his or her person. One could simply take the sought after document, put it in one's pocket and state that the warrant was ineffective as far as the document was concerned.
I move amendment No. 47:
In page 38, subsection (13), line 36, after "it" to insert the following:
", provided that where such material is to be transmitted out of the State, arrangements shall be made for the return of such material following the conclusion of proceedings before the International Criminal Court, and, where human remains are transmitted out of the State under this subsection, subject to arrangements for the reburial of such remains in the State or in such other place as is directed by the next of kin following the conclusion of such proceedings".
The current wording in the section gives the Minister flexibility as to the conditions he or she wishes to attach to the transmission of evidence to the International Criminal Court. The Minister may require the return of such material following the conclusion of proceedings before the International Criminal Court. However, there may also be cases where there is no occasion to require the return of such material and the subsection provides that flexibility. In contrast, the amendment proposed by Deputy Costello would require the return of all material, irrespective of whether we wanted it back. It is better to leave the subsection in its present state.
I appreciate what Deputy Costello is attempting to achieve. The issue of human remains is very sensitive and I fully agree that the feelings and requirements of the next of kin should be respected at all times. However, there can be no question that the State would act honourably in such a situation and arrange for the reburial of the remains as required. It is very unlikely that human remains would ever be transmitted to the ICC from the State. The autopsy on the remains would take place in the State and if the ICC needed any further examination of the remains, it would be much more likely to send experts over to the State rather than request that the remains be sent to The Hague.
While, in principle, I do not object to what Deputy Costello is attempting to achieve, the current wording of the subsection gives the necessary flexibility and I do not propose to make the Bill less flexible.
Could a body be exhumed under an ICC order and taken out of the State with no provision for that body to be returned? Obviously, the intention is that the body would rest forever in the State. Would it not be considered that the fact that the body was originally buried in the State meant that it would be the body's final resting place and that provision should be made for the return of the body after any forensic requirements had been dealt with?
I will use a concrete example. If a person massacred a group of people and buried a container-load of bodies in shallow graves in Ireland, it would not strictly be necessary to bring all these bodies back to Ireland. We should not always assume that every body sent to The Hague should come back.
We are not making any provision for the return of that body.
The present phraseology is sufficiently flexible for the State to act decently and I do not want to introduce an inflexible arrangement.
There is no reference to it in the present phraseology.
That is correct.
If a body is exhumed and taken abroad, there is a surplus body following the conclusion of the case and there is no provision in law for its movement or disposal in any fashion. Should we not make some provision in this regard even if the amendment is not entirely adequate? The amendment proposes that arrangements be made for the return of such material, such as original documents or human remains transmitted under this subsection, following the conclusion of proceedings before the ICC. It appears that some arrangements for the return of these human remains should be made unless there is some good reason they should not be returned.
If the Deputy's amendment was to propose that arrangements may be made for the return of this material, I would have sympathy with it. I do not wish to introduce an inflexible arrangement.
I am happy with that.
I move amendment No. 48:
In page 39, subsection (2), lines 18 to 21, to delete all words from and including "section 4” in line 18 down to and including “documents.” in line 21 and substitute the following:
"section 4—
(a) request the President of the District Court to nominate a judge of that Court to receive the evidence to which the request relates, and
(b) send the judge a copy of the request and of any accompanying or related documents.”.
This amendment substitutes subsection (2) of section 51. The amendment provides that on receipt of an ICC request for the taking and production of evidence, the Minister may request the President of the District Court to nominate a judge of that court to receive the evidence and to send the judge a copy of the request and any accompanying documents. The net difference between this amendment and the text of the Bill as published is that the Bill allows the Minister to nominate the judge. The amendment shows deference to the Judiciary and provides that the President of the District Court shall nominate the judge. Under the principle of the separation of powers, it is generally considered undesirable for a Minister to nominate a specific judge to carry out a function.
What would happen if a vacancy arose for the post of President of the District Court?
Under law, the next most senior judge of the District Court would be acting President.
He or she would be acting President?
Yes.
Amendments Nos. 49 and 50 are related and may be discussed together.
I move amendment No. 49:
In page 39, subsection (3)(a)(i), line 27, after “oath” to insert “or affirmation”.
This amendment is self-explanatory. Amendment No. 50 is a standard provision which deals with other matters and the conduct generally of the proceedings for the taking of evidence.
I am informed that under section 12 and the Schedule to the Interpretation Act 1937, the term "oath" encompasses affirmations. I am not sure if it has recently been provided under the Interpretation Act 2005 but I presume it has if the Act has come into force. The fact that this term encompasses affirmations means that amendment No. 49 is unnecessary. It is a matter of interpretation.
Section 51 provides that in taking evidence, a District Court judge has the powers of the District Court in criminal proceedings, including the powers to secure the attendance of witnesses, take evidence on oath and compel witnesses to give evidence or produce documents, as well as powers in respect of other legislation protecting witnesses from intimidation. Amendment No. 50 extends the meaning of the term "documents" to include other things and adds the conduct generally of the proceedings for the taking of evidence to the powers listed in section 51. The amendment widens the powers of the District Court judge to ensure they are sufficiently ample to deal with the situation.
I move amendment No. 50:
In page 39, subsection (3)(a)(i), line 29, after “documents” to insert the following:
"or other things and the conduct generally of the proceedings for the taking of evidence".
I move amendment No. 51:
In page 39, subsection (3)(a)(ii), line 31, after “intimidation” to insert the following:
"or to the prohibition of publication of information tending to identify an injured party".
I understand the Minister agreed to accept something with regard to amendment No. 51, which concerns the prohibition of publication of information tending to identify an injured party. The protection afforded in the Bill is very narrow and only extends to the protection of witnesses against intimidation. I understand the Minister agreed to examine it with a view to broadening the scope of protection.
I will examine the matter.
I move amendment No. 52:
In page 41, subsection (1), lines 17 and 18, to delete "under Article 93.1(d)”.
This amendment removes a reference to Article 93.1(d) which is not appropriate.
I move amendment No. 53:
In page 44, subsection (2), line 18, after "detention" to insert the following:
", and whether such orders were made by the Court before or after it commenced sitting in the State".
This amendment would appear to give orders of the ICC direct application this country with uncertain results. The suggested new material is being added after "detention" in line 18 on page 44 but before the closing brackets. It appears that orders for imprisonment or detention made by the ICC before or after sitting in the State would have direct effect in the State. The proposal is unnecessary because requests made by the ICC for the arrest of persons will be processed in accordance with Part 3 of the Bill. Under the provisions of Part 3, only the High Court can issue a warrant for a person. I do not want to give direct effect to imprisonment orders because we have our own arrangements and the High Court is responsible for the liberty of people while they are in Ireland.
If the Minister says the amendment is unnecessary, I will take his word for it.
Can I take it this section and this provision has been constitutionally proofed, that we will not run into any difficulties by making a provision that any judgment of the court, while so sitting, is not subject to review by a court?
The Deputy gave me a slight fright there, but I recall that we went to the country to amend the Constitution to make provision for this matter.
Are we constitutionally covered?
Completely.
I move amendment No. 54:
In page 45, subsection (1), line 6, to delete "a state party to the Statute" and substitute "the State or another state".
This amendment proposes to broaden the scope of section 60(1). Section 60 lifts the right to diplomatic immunity of any person sought by the International Criminal Court if the person's diplomatic status is by reason of a connection to a state party to the Rome Statute. The proposed amendment seeks to lift the immunity of persons connected with states that are not party to the Rome Statute, such as——
The United States of America.
Well said. Such a change in the scope of the court's remit is not achievable in this way. Generally, the ICC can only act in relation to crimes committed in the territory of a state party or by a national of a state party. However, there is the possibility of a non-state party accepting the court's jurisdiction in accordance with paragraph 3 of Article 12 of the Rome Statute. This situation must be provided for. I will consider the matter further. While I cannot directly do what the Deputy is asking of me, the Bill is overly narrow as currently drafted.
We need to examine this matter and I appreciate the Minister's commitment.
I move amendment No. 55:
In page 47, before section 64, to insert the following new section:
"64.—Section 7 (request for extradition of same person) of the International War Crimes Tribunals Act 1998 is amended by the substitution of the following paragraph for paragraph (b):
‘(b) proceedings relating to a European arrest warrant within the meaning of the European Arrest Warrant Act 2003, unless the High Court has made an order under section 15 or subsection (1) or (2) of section 16 of that Act for the person’s surrender,’.”.
This amendment seeks to amend the International War Crimes Tribunals Act 1998 by addressing a potential conflict between applications under the European arrest warrant and the tribunals. The amendment also takes account of the fact that section 50 of the European Arrest Warrant Act 2003 repealed Part III of the Extradition Act 1965. Section 7 of the 1998 Act, as it stands, gives primacy over extradition requests to requests from an international war crimes tribunal. The present amendment maintains that primacy, which is possible because the framework decision on the European arrest warrant is silent on the priority to be given to the international war crimes tribunal requests, as is the Rome Statute of the ICC.
Amendment No. 56 was discussed with amendment No. 12.
I move amendment No. 56:
In page 123, before Schedule 2, to insert the following new Schedule:
"SCHEDULE 2
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE. ADOPTED BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS ON 9 DECEMBER 1948
THE CONTRACTING PARTIES,
HAVING CONSIDERED the declaration made by the General Assembly of the United Nations in its resolution 96 (I) dated 11 December 1946 that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilised world;
RECOGNIZING that at all periods of history genocide has inflicted great losses on humanity; and
BEING CONVINCED that, in order to liberate mankind from such an odious scourge, international co-operation is required,
HEREBY AGREE AS HEREINAFTER PROVIDED:
Article I
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
Article II
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article III
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
Article IV
Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
Article V
The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in article III.
Article VI
Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
Article VII
Genocide and the other acts enumerated in article III shall not be considered as political crimes for the purpose of extradition. The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.
Article VIII
Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in article III.
Article IX
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
Article X
The present Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall bear the date of 9 December 1948.
Article XI
The present Convention shall be open until 31 December 1949 for signature on behalf of any Member of the United Nations and of any non-member State to which an invitation to sign has been addressed by the General Assembly.
The present Convention shall be ratified, and the instruments of ratification shall be deposited with the Secretary-General of the United Nations.
After 1 January 1950 the present Convention may be acceded to on behalf of any Member of the United Nations and of any non-member State which has received an invitation as aforesaid.
Instruments of accession shall be deposited with the Secretary-General of the United Nations.
Article XII
Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.
Article XIII
On the day when the first twenty instruments of ratification or accession have been deposited, the Secretary-General shall draw up a procés-verbal and transmit a copy thereof to each Member of the United Nations and to each of the non-member States contemplated in article XI.
The present Convention shall come into force on the ninetieth day following the date of deposit of the twentieth instrument of ratification or accession.
Any ratification or accession effected subsequent to the latter date shall become effective on the ninetieth day following the deposit of the instrument of ratification or accession.
Article XIV
The present Convention shall remain in effect for a period of ten years as from the date of its coming into force.
It shall thereafter remain in force for successive periods of five years for such Contracting Parties as have not denounced it at least six months before the expiration of the current period.
Denunciation shall be effected by a written notification addressed to the Secretary-General of the United Nations.
Article XV
If, as a result of denunciations, the number of Parties to the present Convention should become less than sixteen, the Convention shall cease to be in force as from the date on which the last of these denunciations shall become effective.
Article XVI
A request for the revision of the present Convention may be made at any time by any Contracting Party by means of a notification in writing addressed to the Secretary-General.
The General Assembly shall decide upon the steps, if any, to be taken in respect of such request.
Article XVII
The Secretary-General of the United Nations shall notify all Members of the United Nations and the non-member States contemplated in article XI of the following:
(a) Signatures, ratifications and accessions received in accordance with article XI;
(b) Notifications received in accordance with article XII;
(c) The date upon which the present Convention comes into force in accordance with article XIII;
(d) Denunciations received in accordance with article XIV;
(e) The abrogation of the Convention in accordance with article XV;
(f) Notifications received in accordance with article XVI.
Article XVIII
The original of the present Convention shall be deposited in the archives of the United Nations.
A certified copy of the Convention shall be transmitted to each Member of the United Nations and to each of the non-member States contemplated in article XI.
Article XIX
The present Convention shall be registered by the Secretary-General of the United Nations on the date of its coming into force.".
Amendments Nos. 57 to 72, inclusive, are related and will be discussed together.
I move amendment No. 57:
In page 140, paragraph 1(a), to delete lines 4 to 7 and substitute the following:
"(a) in subsection (3) (as substituted by section 56 of the Criminal Justice (Terrorist Offences) Act 2005) of section 169, by substituting the following paragraph for paragraph (c):
‘(c) if convicted of an offence under section 3 of the Geneva Conventions Act 1962, an offence of genocide under section 2 of the Genocide Act 1973 or an offence under section 7.’.”.
Schedule 3 deals with consequential amendments to other enactments. Amendments Nos. 57 to 59, inclusive, and 67 to 69, inclusive, deal with the insertion of references in the Criminal Justice (Terrorist Offences) Act 2005, which was enacted since this Bill was first published. These references are necessary as the terrorist offences Act amended enactments such as the Defence Act 1954 and the Criminal Procedure Act 1967, which are being further amended by the ICC Bill.
Amendments Nos. 57, 60, 61, 64 and 72 relate to inserting references to the Genocide Act 1973. For example, amendment No. 64 ensures that offences under the Genocide Act are not to be regarded as political offences for extradition. The Bill also provides that offences under the Geneva Conventions Act 1962 and this Bill cannot be regarded as political offences for the purpose of extradition. While the Genocide Act will be repealed by section 7 of this Bill, there is a saving provision whereby proceedings under the Genocide Act can be taken after the commencement of the ICC Act for an offence of genocide committed before such a commencement. Therefore, there is still a need to take account of the Genocide Act notwithstanding its repeal. It is also necessary to align the applicable penalties of the Genocide Act with those in the Rome Statute of the ICC, which amendment No. 61 will do.
Amendments Nos. 62, 63 and 66 are drafting corrections moving the phrase "of which a person is accused or has been convicted outside the State" from paragraph (b) to the first line of paragraph (a), line 13 on page 141 of the Bill. Amendment No. 65 deletes a reference to Part III of the Extradition Act 1965, which is necessary as Part III of the 1965 Act was repealed by the European Arrest Warrant Act 2003. Part III dealt with rendition between Ireland the United Kingdom. Amendments Nos. 70 and 71 correct cross-references. The references should have been to sections 7 and 8, not sections 8 and 9.
Are we taking all of the amendments together?
Yes.
I move amendment No. 58:
In page 140, paragraph 1(b), line 29, to delete “2000 and” and substitute “2000,”.
I move amendment No. 59:
In page 140, paragraph 1(b), line 30, to delete “2000))” and substitute the following:
"and section 56 of the Criminal Justice (Terrorist Offences) Act 2005)".
I move amendment No. 60:
In page 140, line 33, after "1962," to insert the following:
"an offence of genocide under section 2 of the Genocide Act 1973".
I move amendment No. 61:
In page 141, between lines 9 and 10, to insert the following:
"3. The following subsection is substituted for subsection (2) of section 2 of the Genocide Act 1973:
‘(2) A person guilty of an offence of genocide shall on conviction on indictment be liable—
(a) to imprisonment for life—
(i) if the offence involves murder or, in the case of an offence committed outside the State, the killing of a person in such circumstances as would constitute murder if the offence were committed within the State, or
(ii) if a term of life imprisonment would be justified by the extreme gravity of the offence and the individual circumstances of the convicted person,
or
(b) in any other case, to imprisonment for a term not exceeding thirty years.’.”.
I move amendment No. 62:
In page 141, line 13, after "offence" to insert the following:
"of which a person is accused or has been convicted outside the State and the act constituting which would, if done within the State, constitute an offence".
I move amendment No. 63:
In page 141, line 17, to delete "and".
I move amendment No. 64:
In page 141, between lines 17 and 18, to insert the following:
"(ii) section 2 (genocide) of the Genocide Act 1973, and".
I move amendment No. 65:
In page 141, line 21, to delete "Part III".
I move amendment No. 66:
In page 141, lines 26 and 27, to delete all words from and including "and" in line 26 down to and including "State" in line 27.
I move amendment No. 67:
In page 141, paragraph 5(a), line 40, to delete “1973)” and substitute “1973”.
I move amendment No. 68:
In page 141, paragraph 5(a), line 41, to delete “2000 and” and substitute “2000,”.
I move amendment No. 69:
In page 141, paragraph 5(a), line 43, after “2000” to insert the following:
"and section 59(a) of the Criminal Justice (Terrorist Offences) Act 2005”.
I move amendment No. 70:
In page 141, paragraph 5(a), line 45, to delete “8” and substitute “7”.
I move amendment No. 71:
In page 141, paragraph 5(a), line 46, to delete “9” and substitute “8”.
I move amendment No. 72:
In page 141, paragraph 5(b), to delete line 49 and in page 142, to delete lines 1 and 2 and substitute the following:
"paragraph (g) (inserted by section 7 of the Genocide Act 1973):
‘(g) an offence under section 3, as amended, of the Geneva Conventions Act 1962, an offence of genocide under section 2 of the Genocide Act 1973 or an offence under section 7 or 8 of the International Criminal Court Act 2005.’.”.
