I thank the committee for considering this motion. Mutual legal assistance, in simple terms, enables one state to provide within its own jurisdiction a service to another state related to the administration of justice in the latter.
Co-operation and mutual assistance in criminal matters is currently possible between Ireland and Hong Kong on foot of our compliance with certain international instruments to which Ireland and Hong Kong are parties. However, the forms of assistance available are restricted to such areas as the service of certain documents and the taking of evidence for use in investigations and prosecutions. Bilateral agreement of this type allows both parties to set out and provide for their needs and requirements in more detail than would usually be possible in the context of multilateral instruments.
In effect, these bilateral agreements supplement the obligations arising under existing international agreements and conventions. The impetus for this agreement followed the resumption of the responsibility by the People's Republic of China for the foreign affairs of Hong Kong and the establishment of the Hong Kong Special Administrative Region, SAR. Provision was made for the Hong Kong SAR to make appropriate arrangements for reciprocal judicial assistance with foreign states. On this basis, the Hong Kong SAR expressed interest in the negotiation of bilateral agreements and mutual recognition in criminal matters with a number of third countries, including Ireland. Ultimately, an agreement was signed between the parties in September 2001.
At the time of the signature, legislation providing for the mutual assistance in criminal matters was contained in the Criminal Justice Act 1994 but certain forms of assistance under that Act were only available to countries, as opposed to territories. As a territory of China, Hong Kong could not be designated under the 1994 Act to the extent required under the agreement. Ratification of the agreement was postponed pending the introduction of legislation to ensure assistance would be available in all forms to territories.
The enactment of the Criminal Justice (Mutual Assistance) Act 2008, among other matters, repealed and replaced the relevant provisions of the 1994 Act. It allowed for the designation of a state for the purpose of mutual assistance in criminal matters and defines a state as including a territory. This agreement will be applied in accordance with the provisions of the 2008 Act. Thus, we are now in a position to proceed with the ratification of the agreement which, with the approval of this motion, will be concluded through the exchange of diplomatic notes by the Department of Foreign Affairs. The agreement facilitates co-operation by setting out an agreed range of procedures to be followed in dealing with requests for mutual assistance in criminal matters. Committee members will have received a copy of the briefing note concerning the agreement, with details of the provisions in it. However, I would like to highlight some of the main provisions.
Article 1 deals with the type of assistance which may be requested under the agreement and lists illustrative examples, such as obtaining evidence, service of documents, identification and location of persons. Article 2 confirms that the Minister for Justice, Equality and Law Reform is the central authority for the purpose for making and receiving requests for assistance. Article 4 deals with the form and content of requests and specifies that requests must be made in writing, and in urgent cases may be accepted in another form, subject to confirmation in writing within ten days. This article also sets out the detail that each request must contain and certain further details which should, to the extent necessary and possible, be included.
Article 5 sets out the requirements for the execution of a request, including the request it would be executed subject to the law of the requested state. Article 6 sets out the grounds on which either state may refuse or postpone a request for assistance. Assistance may be refused for example where to grant the request would seriously impair sovereignty, security, other essential interests or public order. Assistance may also be refused where it relates to an offence which carries the death penalty, unless assurances are given that the death penalty will not be imposed, or if imposed, not carried out. While unlikely to be invoked, this article is an important safeguard and similar provisions exist in other international instruments of mutual assistance in criminal matters.
Article 7 is another standard provision which lays down the expenses relating to the execution of a request or borne by the requested parties, except in specified instances, and limitations on the use of evidence or information obtained on foot of an agreement or contained in Article 8, including that such evidence will not be used for the purpose other than specified in the request. Article 9 deals with the provisions whereby a person from whom evidence is sought by the requesting state may be required to give that evidence from the territory of the requested state.
Article 10 provides for the taking of statements from persons for the purpose of criminal investigation or criminal prosecution. A provision is contained in Article 11 for ascertaining the location or identity of any person. As with all provisions of the agreement, the manner in which such assistance will be provided by the Irish authorities is set down in the corresponding provisions of the Criminal Justice (Mutual Assistance) Act 2008.
Article 12 deals with the service of documents by requested parties on behalf of the requesting state. Article 13 covers the manner in which the records and other documents or information, whether publicly available or available only to law enforcement or judicial authorities, may be provided. Provision is made in Article 15 for the transfer of persons in custody for the purpose of providing assistance under the agreement. Similar provision is made in Article 16 for persons other than prisoners. Article 17 is related, in that it provides for the safe conduct of persons transferred under Articles 15 and 16. Article 18 provides for the search, seizure and transfer of material to a requesting state.
The provisions of this agreement broadly replicate similar provisions of other international agreements or conventions to do with mutual assistance on criminal matters. The agreement will come into effect 30 days following notification of the requirements for its entry into force have been complied with. As I have previously stated, it will operate under Irish law in accordance with the Criminal Justice (Mutual Assistance) Act 2008. To this end, an order designating Hong Kong SAR for the purpose of mutual assistance would be required following the ratification. I recommend to the committee the approval of this agreement.
