This is restricted to citizens of Ireland in respect of whom we are entitled under international law to make any arrangement we wish. If that has not been said, I will not push the argument any further. The third line of Deputy O'Donnell's amendment specifically confines it to citizens of Ireland, so we are entitled at any time to alter our legislation to provide evidential safeguards for our citizens as a matter of international law and under the Conventions.
Deputy Fitzgerald referred to sending people out of the country and argued that it is a major matter to send somebody for trial in Britain without safeguards being in place. I query why Irish citizens under present law can be extradited to America and Australia, which must be a huge imposition on them, on the basis of a warrant alone. Judging by Deputy Fitzgerlad's contribution, this issue is not being confronted. A warrant, if duly issued by an Australian court, does not have the benefit of the Attorney General's protection, which exists in Part III extraditions under the 1965 Act. If a warrant is issued for Deputy Fitzgerald or anybody else by an Australian court there is nothing he, as an Irish citizen, can do to resist it. The same applies to an American warrant.
It amazes me that somebody can be sent halfway across the world in custody and that there is not a scintilla of legal protection for him in this country. There is no measure whereby he can argue that the court is seeking the wrong person or that he was in Ireland at the time the crime was committed in Australia. The same policy from the Departments of Justice and Foreign Affairs was applied on our treaty with America. We said that America could have our citizens on foot of a warrant. America, as the Minister has conceded, will not allow that to apply to its citizens. Why not? They regard the civil liberties of their citizens as worthy of protection. A US citizen cannot be sent in custody to an Irish court merely because an Irish district judge on an afternoon in the Bridewell issues a warrant summoning the citizen to an Irish court. That is the fundamental difference. With respect, Deputy Fitzgerald is having his cake and eating it. He seeks protections in relation to the United Kingdom, yet he acquiesces in the lack of protections for an Irish citizen in relation to America or Australia.
We need a uniform law which protects everybody. The first thing we need is a uniform law to protect the civil liberties of ordinary people. It is a matter of civil liberty if for example, an Irish citizen is accused of rape while on holiday in Florida, or of a theft in a store in Sydney while on tour there. It is a matter of fundamental civil liberty that the person should, before he is sent to Australia or America, have evidence produced somewhere in Ireland to show that, at the least, there is a case to be met. That is uncontradictable.
The Irish Government, however, has consistently followed a policy whereby a person in such circumstances may not go to an Irish court to say that there is no evidence against him. He could go to the Minister, tell her he is the wrong person and ask her to check that the Australian police are sure of their facts. The Minister might say that before she exercises her power under the Extradition Act, 1965, she will ring Sydney to reassure herself that the right person is being sought. However, as a matter of law, that person is not entitled to know if the Minister rang. He is not entitled to any reassurance about the quality of the evidence against him.
If Deputy Fitzgerald sincerely believes that there must be protections in relation to some countries, the protections must exist in relation to all countries. If Irish citizens have rights which must be protected in relation to Britain, I cannot see why the District Court in some Godforesaken corner of America is entitled to insist on the production of an Irish citizen in custody to face trial in circumstances where an English court is not permitted to do so. We must have a uniform law. It is about time that Parts II and III jurisdictions under the 1965 Act were brought together and put on a uniform basis. There should be a proper treaty of extradition between Ireland and Britain which puts Britain in the same position as any other country seeking the extradition of Irish citizens.
It has been suggested that what we are proposing is less of a safeguard than the Attorney General procedure. Let us get the Attorney General procedure straight. It has been carefully crafted — the lawyers present know this — so that the Attorney General's failure to stop an extradition is as unreviewable as possible by the courts. Hence, an Irish citizen who is being extradited to Britain is dealing with the assumption that the Attorney General looked at the papers in private and failed to intervene to stop the extradition. It is thought — wrongly, I believe — that the assumption cannot be reviewed in the courts. I believe that a positive decision one way is just as reviewable as a negative decision another way. Some day somebody will insist that the Attorney General bring his material before the courts. All the presumptions contained in this statute will not protect the Attorney General from that. If he makes a decision about reducing somebody to custody, whether it is expressed in the positive or the negative, it is equally reviewable.
What is not reviewable under the present arrangement is whether his decision was correct. Nobody knows what his decision was because nobody ever sees the material before him. We hope that he gets it right. We do not know if he has got it right. I am not trying to be pernickety, but there is no guarantee or presumption of infallibility on the part of the Attorney General, as recent events have obviously underlined. A person does not have a genuine transparent safeguard. It is quite the reverse. In relation to the United Kingdom we have a secret process which presumes that the Attorney General has done his job. That process is not available to people being extradited to Australia or America.
The question of prima facie evidence or affidavits showing probable cause was debated in the House in 1987. A fullprima facie case involves bringing evidence on paper to a District Court in the form of a book of evidence of the case against the accused. A full prima faciecase in those circumstances involves much work. We thought that the Minister, under subsection (3), was in a position to specify the means of knowledge that a deponent would be obliged to have of the material and the kind of material which would have to be there. The Minister, in making regulations under the proposed provision, would effectively decide the detailed nature or otherwise of the evidence to be produced before an Irish court before a person would be extradited.
A reasonably fair arrangement would be that in most cases where, for example, a chief constable was making the statutory declaration, he would exhibit the statements of matters which were not within his knowledge, such as eyewitness accounts, fingerprint experts and so forth. Thus it could be seen that there was a sufficient case to put the person on trial and, if this was put before an Irish court, the Irish people would know that before somebody was put in handcuffs and sent to Britain, there was a case for the person to answer. It is very wrong that, as happened in the Fr. Patrick Ryan case, a decision was made about potential bias due to remarks in Parliament and media treatment of his case in England, although nobody in Ireland knew what the evidence was against him. It was never put before an Irish court that there was or was not any evidence in his case. It is a wrong not only to Fr. Ryan but to the community that his extradition was handled in such a manner that nobody in Ireland knew whether there was a case for him to meet or if the Attorney General's intervention had or had not got him off a hook.
In our law as it is currently practised there is no transparent means for the public to judge whether extradition is fairly operated. It is for the public to decide whether extradition is right or wrong in any individual case. How can the public decide that an extradition is fair or that it is fair to reduce an Irish person to custody and send him to Australia, America or Britain if the only safeguard in respect of Britain and Northern Ireland exists inside a sealed file cover on the Attorney General's desk?
We should have a system of justice which is clear, open and accountable. If somebody decides that certain material is insufficient for the extradition of an Irish citizen to Northern Ireland, the Irish people are entitled to know on what basis that decision was made. Somebody in Northern Ireland or Great Britain is entitled to know whether the Irish State refused to extradite on good or bad grounds.
It is an offence to a democracy and to the name of a republic that this decision is made by a secret process in which everybody is kept in the dark as to the merits or demerits or the right or wrong of the decision. In those circumstances, the duty of the Oireachtas is to provide an alternative system whereby the courts in a simple procedure could evaluate whether there is a case to meet. It does not have to be a 15 year or a long drawn out procedure. However, it does have to be transparent and subject to review and public scrutiny. That is all the courts are there to do.
Is the reduction of somebody into captivity for the purpose of extradition of a question of the administration of justice? If it is the question of the administration of justice, where is the justice element in producing an apparently valid warrant from an English court in an Irish court and saying, "Hand over this man on foot of that warrant and the Attorney General will see to all the safeguards. The fact that we are here in court with the warrant already shows that the Attorney General has reviewed this and he is privately satisfied on grounds that nobody knows. This is all fine". It is not a safeguard and it is anti-republican. It is star chamber justice and should not be part of our law.
We made that point in 1987 when this came in and we do not believe it is necessary to put in a full prima facie case. We have never believed that or that it is necessary to deal with every Irish person’s extradition as if he was being returned for trial by an Irish jury by putting together a huge book of evidence with depositions on which people were cross-examined, or such matters. We have never argued for that but Irish citizens are entitled to the protection of their civil liberties. They should not be reduced to captivity by what is in effect a veneer of justice by the Irish courts backing an English warrant in circumstances where the real substantive decision is made in secret by somebody who claims to be acting quasi judicially and in circumstances where the absence of correctness of that decision is not open to public scrutiny. If an American or Australian court is entitled to the production of an Irish citizen in captivity to either of those jurisdictions without the Attorney General’s intervention, I cannot see how it is any type of safeguard or reasonable application of the law to say that is similar circumstances a British court should not be allowed it. It would appall me if British courts were entitled, in view of recent events, to simply produce a warrant, as was the old law, and have an Irish person sent to them. It is equally appalling and wrong that an Irish person can be sent to Australia or America in similar circumstances. The right way to tackle this is, first, to put the British-Irish extradition proceedings on a proper international basis, where Irish citizens’ rights are protected, and, second, that as long as we have some requirement for special protections in relation to UK extradition, that the right way for the merits and demerits of those applications to be decided is subject to public scrutiny in the courts and not in a secret file on the Attorney General’s desk.