I move: "That the Bill be now read a Second Time."
I am pleased to present the Criminal Justice (United Nations Convention against Torture) Bill, 1998, to the House today. It may seem, at first sight, somewhat strange that we, who are fortunate enough to live in a civilised country, with our Constitution and a body of laws designed to protect the fundamental human rights of our citizens, should today discuss a Bill which creates a statutory offence of torture. Our role in relation to upholding human rights is not limited to what happens in our own back yard, for it is also incumbent on us to play our part in the international effort to ensure that everybody can enjoy these fundamental rights, not least of which is protection against torture. Unfortunately, such protection is not universally enjoyed. The horrific images we see all too often on our television screens and the gruesome stories we read in our newspapers are a sad but compelling testimony to this fact.
The international community has provided a framework for international protection against torture. That framework is contained in the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. This convention was drawn up to provide an international system under which a person who has committed torture could find no safe haven. The Bill, when enacted, will allow Ireland to play our part more fully in this international effort by enabling us to ratify this important UN convention.
Against this background, the Bill creates a specific statutory offence of torture with a penalty of up to life imprisonment, it allows a person to be tried here in relation to the commission of the new offence anywhere in the world and it prohibits the extradition or expulsion of a person from this State where there are substantial grounds for believing that if the extradition or expulsion were to take place, the person may be subjected to torture.
I wish to expand on the background to the Bill. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the General Assembly of the United Nations in December 1984 and entered into force in June 1987. In September 1992 the Government authorised the Minister for Foreign Affairs to arrange for the signature on behalf of Ireland of the convention. Ireland signed the convention on 28 September 1992. There is widespread acceptance that Ireland's ratification of the convention is long overdue and it was in that context that, as Minister, I directed that this measure should be included as a priority in the very extensive programme of law reform I have undertaken.
In order for Ireland to proceed to ratify the convention it is necessary to ensure that acts of torture as defined in the convention are offences under Irish law. The main purpose of this Bill is, therefore, the creation of a statutory offence of torture in line with that contained in the convention, thus facilitating our ratification. There is no statutory offence of torture in Ireland at present. However, the courts have held that the unspecified personal rights guaranteed by Article 40 of the Constitution include freedom from torture and from inhuman or degrading treatment and punishment, and it should be borne in mind that in the absence of a specific statutory offence of torture, actions which amount to torture may also amount to other offences under our law such as serious assault offences.
In addition, in the context of extradition, it has been held that extradition should be refused if the court is satisfied as a matter of probability that a person would, if delivered into another jurisdiction, be subjected to assault, torture or inhuman treatment. Given that these judgments have applied primarily to acts of physical torture, it is not certain that acts or omissions which could amount to mental torture would be covered equally. In all the circumstances, it is therefore desirable to create a specific offence of torture which includes acts and omissions which inflict both physical and mental suffering and to provide appropriate penalties in relation to them.
Under the Bill and in line with the convention torture will consist of the intentional infliction of severe pain and suffering, mental or physical, on a person for such purposes as obtaining from that person, or another person, information or a confession, punishing that person for an act which he or she, or another person, has committed or is suspected of having committed, intimidating or coercing him or her, or another person, or for any reason based on discrimination of any kind. However, it will not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions. This too is in line with article 1 of the convention.
It is important to note that the Bill is not limited to acts of torture which occur within the State. Extra territorial jurisdiction will apply to such behaviour which takes place outside the State. In this respect the Bill goes further than the minimum obligation in the convention, which is to establish jurisdiction over offences committed in our own territory or outside the State if committed by or against an Irish citizen. Given that we are dealing with behaviour which is so evidently repugnant to the whole basis of society and democracy, it is only right and proper that we should take this approach.
In view of the seriousness of the offence, a person found guilty of the offence of torture would be liable to imprisonment for up to life. The Bill also contains provisions dealing with offences such as aiding and abetting or attempting or conspiring to commit acts of torture, as well as acts designed to frustrate efforts to apprehend and prosecute persons for an offence of torture. A person found guilty of such an offence would also be liable to imprisonment for life.
Proceedings for an offence of torture, which may only be taken by or with the consent of the Director of Public Prosecutions, may be taken in any place in the State and the Bill will enable persons charged with the new offence committed abroad to be tried anywhere in the State. The creation of the new offence of torture necessitates the amendment of a number of other Acts. Accordingly, the Extradition (Amendment) Act, 1994, is being amended to provide that the new offence of torture will not be considered a political offence and that extradition cannot be denied on that ground. The Defence Act, 1954, is being amended in respect of the jurisdiction of courts martial to deal with the new offence of torture. The Criminal Procedure Act, 1967, is being amended in respect of the procedure in the District Court where a person is charged with torture and to provide that bail may only be granted by the High Court in such cases. To give effect to the convention, the Extradition Act, 1965, is being amended to provide that a person will not be extradited to another State where there are substantial grounds for believing that he or she may be subjected to torture. Other provisions in the Bill deal with privileges and immunities for certain bodies which are established under the convention, the commencement of the Act and expenses arising out of its administration.
The convention imposes a number of further obligations on states parties which do not require to be included in legislation. For example, article 10 provides that states parties will ensure that education and information regarding the prohibition against torture are fully included in the training of police, medical personnel, public officials and others who may be involved in the custody or treatment of any person who is subjected to any form of arrest, detention or imprisonment. These are matters that can be dealt with administratively.
I will deal in detail with the sections of the Bill. Section 1 contains standard provisions providing for certain necessary definitions. It defines the terms "public official" and "torture". It states that a public official includes a person acting in an official capacity. The definition of torture, which follows closely that contained in the convention itself, contains a number of elements. In the first instance it includes both acts and omissions by which severe pain and suffering is intentionally inflicted on a person. The pain and suffering may be either physical or mental. The definition further provides that the pain may be inflicted for such purposes as obtaining from the person, or a third party, information or a confession, punishing the person for an act which he or she, or a third party, has committed or is suspected of having committed, intimidating or coercing the person or a third party or for any reason based on discrimination of any kind.
Torture does not include, however, any act arising solely from, inherent in, or incidental to lawful sanctions. There might be varying views as to how precisely to define the offence of torture, but primarily what is at issue here is to enable the State to ratify the UN convention and, in the circumstances, there are advantages in adhering as closely as possible to the definition which the convention contains.
Section 2 sets out those categories of persons who may be guilty of torture. Under subsection (1), a person who is a public official and carries out an act of torture on a person will be guilty of the offence of torture. This subsection further provides that the nationality of the public official is immaterial, or whether the act of torture was carried out within the State or elsewhere. Subsection (2) provides that a person, other than a public official, who carries out an act of torture on a person at the instigation of, or with the consent or acquiescence of a public official, will also be guilty of the offence of torture. It is immaterial what the nationality of the person is or whether the act of torture was carried out within the State or elsewhere.
The practical effect of subsections (1) and (2) is that a public official or person acting at the instigation of, or with the consent or acquiescence of a public official, no matter what the nationality of either, who carries out an act of torture on another person, irrespective of where that act was carried out, will be guilty of torture under the Bill. Under subsection (3), a person who commits the offence of torture will be liable on conviction on indictment to imprisonment for up to life. This will make the offence an arrestable one, and will put torture on a par with other very serious offences.
Section 3 creates a number of offences other than the carrying out of acts of torture, but which contribute in some way to the offence of torture or are designed to frustrate efforts to prosecute others for the offence. Thus, any person, irrespective of nationality, will be guilty of an offence if he or she does any of the following – directs, instructs, aids, abets, counsels or procures, within the State or elsewhere, the commission of the offence of torture, attempts or conspires to com mit the offence of torture or tries to obstruct or prevent the arrest or prosecution of a person for the offence of torture.
As in section 2(3), a person who is found guilty of any of these offences will be liable to imprisonment for up to life. Given the particularly heinous nature of what can be at issue, it is appropriate that those who assist in the commission of an offence should also be subject to the same maximum penalty. However, my Department, in consultation with the Office of the Attorney General, is currently examining section 3 to ascertain whether some or all the offences in section 3 might be already covered by section 7 of the Criminal Law Act, 1997. Section 7 of that Act deals generally with aiding and abetting and so forth, and among the issues being addressed is whether the 1997 Act would cover such ancillary offences when committed outside the State. Arising from the outcome of these deliberations, I might bring forward suitable amendments on Committee Stage.
Article 3.1 of the convention provides that no party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. This concept is also known as non-refoulement. Section 4, which was drafted on the basis of the wording of the Refugee Act and article 3 of the convention, covers in Irish law the grounds contained in article 3 of the convention, with the exception of extradition which is covered in section 7.
Section 5 (1) provides that proceedings for an offence under the Bill can be taken anywhere in the State and may be treated as if the offence had been committed in that place. The effect of this will be that persons charged with the offence of torture or a related offence which has been committed either in the State or abroad may be tried anywhere in the State. Under subsection (2) of this section, a prosecution for an offence under this Bill may only be taken by or with the consent of the Director of Public Prosecutions.
Subsection (3) is included to avoid multiple provisions in legislation relating to extraterritorial jurisdiction. Under section 38 of the Extradition Act, 1965, an offence committed abroad by an Irish citizen is, in certain circumstances, an offence under Irish law. The effect of subsection (3) is that where an Irish national is accused of the offence of torture committed abroad, any proceedings will be taken under the Bill and not under section 38 of the Extradition Act. By virtue of subsection (4), a person charged with an offence under this Bill will be tried in the Central Criminal Court, where the most serious offences known to the law are usually tried.
Section 6 provides for the amendment of sections 169 and 192 of the Defence Act, 1954. Section 169 of the Defence Act, as amended by the Criminal Justice Act, 1990, deals with the trial of certain non-military offences by court martial. Section 169(3) provides that where a person charged under the section is convicted by court martial of certain offences, for example, manslaughter, rape or genocide, that person will be punished accordingly. Paragraph (a) of section 6 amends section 169(3) by adding that where a person is convicted by court martial of an offence under this Bill, the person will be liable to a penalty of up to life imprisonment in the same way as a person is liable to that penalty if convicted in a non-military court.
Section 192 of the Defence Act deals with the jurisdiction of courts martial. Subsection (2) provides that a limited court martial will not have jurisdiction to try certain offences, for example, treason and murder, and subsection (3) provides that a court martial shall not have jurisdiction to try any person subject to military law for certain offences, for example, treason, murder, manslaughter, rape and genocide, unless the offence was committed while the person was on active service. Under paragraph (b) of section 6, the offences created by the Bill will also be excluded from the jurisdiction of courts martial in similar circumstances.
Section 7 involves a number of amendments to the Extradition Act, 1965. These arise on account of the requirement in Article 3.1 of the convention that no state shall expel, return or extradite a person to another state where there are substantial grounds for believing that the person would be in danger of being subjected to torture. Accordingly, section 7 of this Bill will add a further condition to the relevant sections of the 1965 Act to allow for refusal of a request for extradition where there are substantial grounds for believing that a person may be subjected to torture. Paragraph (a) will include a definition of torture in section 3 of the 1965 Act which will have the same meaning as it has in the Bill.
Section 11(2) of the 1965 Act includes provision that a person shall not be extradited if there are substantial grounds for believing that, if extradited, the person's position may be prejudiced on account of his race, religion, nationality or political opinion. Paragraph (b) will insert an additional subsection (2A) the effect of which will be that a person shall not be extradited if there are substantial grounds for believing that the person may be subjected to torture.
Section 33(3) of the 1965 Act provides that the Minister shall not make an order that a person is to be surrendered if he or she is of the opinion that it would involve transit through any territory where there is reason to believe that the person's life or freedom may be threatened by reason of the person's race, religion, nationality or political opinion. Under paragraph (c) this will be amended to state that the Minister may also refuse to make an order if there is reason to believe that the person may be subjected to torture.
Section 44(2) of the 1965 Act, as amended by section 8 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, includes provision that a warrant issued in a place to which Part III of that Act applies shall not be endorsed for execution in the State if there are substantial grounds for believing that the person's position would be prejudiced on account of the person's race, religion, nationality or political opinion. This is amended by paragraph (d) of section 7 to include the belief that the person may be subjected to torture.
Section 50(2)(bb) of the 1965 Act, inserted by section 9 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, includes provision that a person arrested under Part III of the Act shall be released if there are substantial grounds for believing that the person's position would be prejudiced on account of race, religion, nationality or political opinion. This paragraph is amended, by paragraph (e) of section 7, to include the belief that the person may be subjected to torture as a further ground for release.
Section 8 amends the Criminal Procedure Act, 1967, in two respects. Paragraph (a) of section 8 inserts reference to offences created by the Bill into section 13(1) of the 1967 Act, the effect of which is that the District Court will not have jurisdiction either to deal summarily with offences created by the Bill or to send the accused forward for sentence in relation to those offences. At present, section 13(1) excludes this jurisdiction in the case of offences such as treason, murder or genocide to which will now be added the torture offences created by this Bill.
Section 29 of the Criminal Procedure Act, 1967, deals with bail in the case of treason, murder, genocide and certain other offences. It provides that bail may only be granted by the High Court in those cases. Paragraph (b) of section 8 inserts a new paragraph into section 29(1) of the 1967 Act to add the new offence of torture to those offences listed. As a result, bail may only be granted by the High Court in the case of a person charged with an offence under the Bill.
Section 9 amends the First Schedule to the Extradition (Amendment) Act, 1994, in order to include the offences created by the Bill. The effect of this will be that these offences will not be considered to be political offences and that extradition cannot be denied, therefore, on that ground.
Section 10 amends the Schedule to the Bail Act, 1997, in order to include the offences created by the Bill. The effect of their inclusion will be that the new bail regime, as provided for in the Bail Act, 1997, will apply to offences under this Bill. Under that Act, bail may be refused to a person charged with a serious offence where it is considered necessary to prevent the commission of a serious offence. Serious offences are defined by reference to a Schedule in the Act. It is considered appropriate that the offences created by the present Bill should be regarded as serious offences for bail purposes and this section provides accordingly.
Article 17 of the UN convention establishes a committee against torture to carry out the function of ensuring that states abide by their obli gations under the convention. Article 21 permits the setting up of an ad hoc conciliation commission in appropriate cases. Article 23 states that members of the committee and of the ad hoc conciliation commission shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations, which is incorporated in the Diplomatic Relations and Immunities Act, 1967.
Section 11 makes provision in the Bill for the Committee against Torture, and any ad hoc conciliation commission established by the committee, to be accorded the appropriate privileges and immunities as are necessary for them to exercise their functions independently.
Section 12 is a standard provision, which provides that any expenses incurred by any Minister of the Government in the administration of the Act will, to the extent sanctioned by the Minister for Finance, be paid out of money provided by the Oireachtas. The Bill may give rise to additional costs, for example, the costs incurred in prosecuting persons accused of offences under the Bill. In addition, the convention imposes obligations on states which have ratified it regarding expenses of the committee established under article 17 as well as expenses incurred in connection with meetings of states and the committee. However, there are no grounds for believing at present that any substantial expenditure will arise. Section 13 is a standard provision setting out the short title of the Bill and providing for the commencement of the Act.
In conclusion, this Bill honours an important international obligation. Furthermore, it is a positive indication of the repugnance we feel at unspeakable acts committed most frequently by tyrannical regimes which are sadly still all too prevalent in the world today. It is also a demonstration of our willingness to do all we can to ensure that the perpetrators of those heinous crimes are brought to justice. As recently as last December, we celebrated the fiftieth anniversary of the adoption of the Universal Declaration of Human Rights. I am pleased that because of the priority which I accorded the measure, it proved possible to publish the Bill prior to that anniversary.
As always, I will follow the debate with great care and interest and will take full account of the contributions. I thank the Deputies for their co-operation.