Dáil Éireann díospóireacht -
Wednesday, 14 May 2003

Vol. 566 No. 4

Criminal Justice (Illicit Traffic by Sea) Bill 2000: Report and Final Stages.

Mr. Costello

I move amendment No. 1:

In page 4, line 31, after "state" to insert "concerned".

I welcome the Minister to the House to consider this important legislation. Perhaps when the Minister responds to my amendment, he might give us an indication of where we are at with it because the Bill was published in 2000, yet it has taken until now for it to reach this stage. The Bill is part of the arrangements to give effect to the action plan on organised crime which was agreed in Amsterdam in 1997, some six years ago. The date for ratification was extended to 2001, yet according to the informative memo the Minister gave us, only Austria and Germany have ratified it so far. Has the agreement been ratified by any other states? Obviously, Ireland has not yet ratified it and it is important we do so before our Presidency of the EU begins next year. It seems a pity that an organised crime plan, which seeks the support of all member states, introduced and agreed in 1997, should still be waiting to be passed through the Oireachtas. It does not seem like there is much interest in having this ratified in other EU states since only two have done so to date.

This legislation is important because it deals with the trafficking of drugs on the high seas and into our territorial waters. That is a crime under our legislation but what was not dealt with was how the issue could be processed and whether the matter is dealt with in the flag or registration country of the ship or in the country where the offender resided. This legislation provides that the first preferential step could be taken by the country in which the ship resides.

Section 4, subsection (1) will state that the mas ter of the vessel "shall be entitled to communicate with the authorities of the convention state concerned and the owner or operator of the vessel for the purpose of notifying them that the vessel has been boarded." It is a technical amendment with the intention of making the section more specific. It is a little inelegant as it stands; this amendment would sharpen the intention of the section, making it clearer that it is the particular state to which we are referring.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

I am grateful to the Deputy for the spirit in which he is approaching this matter. I intend to accept this amendment and I ask the House to do so as well. The Deputy asked about the present state of play in relation to this agreement. Austria signed the agreement on 14 December 2000 and ratified it on the same date. Cyprus signed it in 1997 and ratified it on 19 January 2000. Germany signed it in 1998 and ratified it in 1998 and it has already entered into force. Hungary signed it in July of last year and it came into force on 1 November 2002 – I notice that Hungary has a major maritime interest. Italy and Latvia have signed it. Lithuania has signed and ratified it. Norway has signed and ratified it. Romania has signed and ratified it. Slovakia and Slovenia have signed and ratified it; Sweden and the UK have signed it.

I agree with the implication of the Deputy's question that progress has been slow on the signature, ratification and implementation of this measure. Although it may appear from the rate of progress that we are somewhat slow ourselves, we are certainly by no means unique in the time we have taken to implement the agreement. That means, effectively, that two member states of the EU have ratified it so far. We are likely to be the third. The Vienna organised crime plan has further advanced and perhaps overtaken it, with the Tampere Council conclusions, but now that we have got this far we might as well finish getting the Bill through the House and get it onto the Statute Book, even if others are slightly tardy about it.

Mr. Costello

I thank the Minister for accepting the amendment, which was proposed in a constructive spirit. Effectively, no member other than Austria and Germany has seen fit to implement the agreement up to now. It is interesting that none of our seafaring neighbours have done this. Both Austria and Germany are landlocked or almost so. The convention refers to illicit trafficking by sea. The Netherlands, France, Spain and the UK have not implemented it; neither have the Baltic states, other than Latvia and Lithuania, which are incoming countries. I would have thought that our neighbours in the EU which have a strong seafaring and merchant tradition would be most affected by illicit trafficking by sea and would feel a certain compulsion to ensure that every step was taken to prevent organised crime of that nature. It is not a good sign if the countries most affected by a particular resolution, who go to the bother of producing an agreement of this nature, more or less stand idly by and leave it to lapse without ratifying it.

Mr. McDowell

I am always slow to castigate others for delay in these matters because inevitably the finger ends up pointing back to one's self.

Mr. Costello

It would never do that.

Mr. McDowell

It might be of interest to the House to know that the reason the applicant states seem to be ahead of the existing member states is to do with the fact that as part of the process of joining the EU, the applicant states are required to fully implement the community acquis. This forms part of the acquis and that is why all the applicant states are being more alert and attentive to their duties than some of the existing member states. It explains why Slovenia, Slovakia, Latvia, Lithuania and the like are getting on with the job. All I can do is complete our obligations and hope that other member states quickly carry out theirs.

Mr. Costello

I thank the Minister. It does seem that some of our new members are likely to be more EU members than the members themselves.

Amendment agreed to.

Mr. Costello

I move amendment No. 2:

In page 4, line 33, to delete "prevent or".

My second amendment aims to delete the words "prevent or" in section 4(2) so that it reads:"An enforcement officer may delay communication under subsection (1)"– that is, communication by the master of a vessel with the authorities of the convention state or the owner or operator of the vessel to notify them that the vessel has been boarded –"if he or she is satisfied that such communication would obstruct the investigation of an offence." It seems that "prevent" is not only unnecessary but probably wrong in this legislation. Surely the whole purpose of the subsection in that case would be that the enforcement officer about to board a vessel should prevent any action being taken by the master of the vessel or anybody else on it that would interfere with the process of the investigation.

We are talking about delaying the communication until such time as the action to board the vessel and the investigation had got under way and was proceeding. Surely at some stage there will be no need to prevent communication. The master of the vessel is not intended to be out of communication with the convention state or the owner or operator of the vessel forever. We merely want to delay proceedings so that the investigation can be properly carried out, and then surely the master of the vessel can carry out whatever communication is required in making contact with the commercial owner of the authorities of the registering state. There is no problem with that. What is needed is to delay communication, to conduct the investigation in relation to any suspected offence, and when the investigation is completed, to allow the master to go about the performance of his professional duties in keeping with his or her position or status.

Mr. McDowell

On Committee Stage, Deputy Moynihan-Cronin was advised that section 4(2) of the Bill derived from the provisions contained in Article 11.4 of the agreement. Article 11.4 of the agreement states that the master of a vessel which has been boarded in accordance with this agreement, shall be entitled to communicate with the authorities of the vessel's flag state as well as with the owners or operators of the vessel for the purpose of notifying them that the vessel has been boarded. However, the authorities of the intervening state may prevent or delay any communications with the owners or operators of the vessel if they have reasonable grounds for believing that such communications would obstruct the investigation into a relevant offence.

This is a power which is part of the agreement we are seeking to ratify. I fully accept that it does not necessarily follow that we have to take all powers which are granted to an intervening state, but it is certainly contemplated by the agreement that states ratifying the agreement would fully live up to their obligations under it. There are cases imaginable where it would require not merely a delay of, but prevention of, communication.

While there are probably more sophisticated and plausible examples available, one that leaps to mind is that if a vessel was being boarded and a radio was in the process of being used and it occurred to the boarding party that the only way to stop the transmission of a message, which was being used to enable the destruction of evidence, was to damage the radio in question, one could hardly say that was justified by a power of delay, whereas one could say that it was justified by a power of prevention. In other words, if one had to look to the text of this Act to say that the Act was lawful or unlawful and all one had was a power to delay the sending of a message, one might be on thin ice if one had to explain to a court that one had broken or destroyed a radio or thrown a communications device into the sea to prevent it from being used for such a purpose.

This is part of the agreement; it is not an extra bauble that the parliamentary counsel has put into this Bill. This is part of the substance of the agreement that we are trying to implement. We are not claiming something for the Irish State or authority which is outside the agreement. It is specifically contemplated by the agreement. In the circumstances, I will not accept the Deputy's amendment.

Mr. Costello

We do not have to accept the wording of the agreement. As the agreement stands, this is a power that may be exercised, not one that must be. Therefore, there is scope for flexibility in terms of what we insert in the legislation. We would be quite entitled to omit the words if we so wished and we would still be in keeping with the provisions of the agreement.

My concern is that such extra power in terms of the words "prevent or" is excessive and unnecessary. I do not favour inserting a prohibition in terms of a prevention in legislation. The master of a ship may very well need to communicate with the owner of the ship and such communication would seem to be necessary. However, if the master of the ship was the person being arrested for the ship being used for illegal trafficking, that would be a different matter. There may be drugs, weapons or illicit materials on board of which the master of the vessel was not aware. In any event a commercial activity would be taking place. There is the flag state – the convention state – and the normal procedure would be to allow some communication with it and not to prevent that. It seems that once an investigation is carried out, the enforcement officer should be satisfied with the findings and at that point bona fide communication should be available to the convention state or to the owner or operator of the vessel.

Mr. McDowell

While I have sympathy with the liberal sentiment that underlies the Deputy's amendment, I am left in the position—

Mr. Costello

I am concerned about the commercial and business side.

Mr. McDowell

I know. Since the party's Killarney conference I am looking to the Labour Party for this new shift to the right and I am impressed that is already working through.

Mr. Costello

We are playing for all sides.

Mr. McDowell

If at some stage some future lawyer looked back on this debate and saw that I had accepted the Deputy's amendment, he or she would be in a position to say that in doing so I had deliberately narrowed the scope of actions that could be taken under the convention. Two arguments can be made in this context. I accept that the wording of the convention is not mandatory in every respect, but it could be argued that we were deliberately choosing to surrender a capacity for the Irish State which was envisaged by the agreement. Second, it could be said that had the Deputy's amendment not be made, there were some classes of activities – it is hard to put a finger on them now looking forward – that would have been open to the Irish State to carry out in respect of any particular operation, but because the Minister of the day accepted the Deputy's amendment they were ruled out as a consequence.

I will give the Deputy a more plausible example than the one I offered earlier. If two ships were travelling in convoy or at a distance, one was testing out the water for another to check the security arrangements or the two ships' masters were acting in concert, it could be necessary to prevent one of them from communicating with the home base or with the other so that an effective round-up of evidence could take place. That is as good as I can set out the position for the Deputy.

Mr. Costello

I will not dwell on this amendment. The section states that an enforcement officer may prevent or delay communication if he or she is satisfied that such communication would obstruct the investigation of an offence. All communication would be delayed until an offence is investigated and that would also inquire into whether there was an accompanying vessel. However, once the offence is investigated and the enforcement officer is satisfied, we are only talking about bona fide communication. It refers to only two matters. It refers to the authorities of the convention state who are unlikely to be criminals with whom the master of a vessel would get in contact. These are government officials. Second, it refers to the owner or operator of the vessel. If a vessel is carrying commercial cargo, it would be important to know where the vessel is and what is happening to it. If we give power to an enforcement officer, at his or her discretion, to say that he or she will not only delay communication until he or she has investigated the case, but that he or she will prevent any contact with any authority that is relevant to the vessel, cargo or flag ship state, I consider that the use of such power is unnecessary and unreasonable.

Acting Chairman (Mr. McCormack)

Is the amendment being pressed?

Mr. Costello

Yes.

Mr. Deasy

On a point of order, I seek clarification from the Minister on a point. Let us say, hypothetically, that there are two ships, that an enforcement officer boarded one and immediate action had to be taken to prevent people from sending a radio signal to the second ship which might be in the same business as the first, and that it may be necessary to prevent any communication and, if necessary, to smash the radio.

Acting Chairman

I am allowing the Deputy to intervene because he did not speak to this amendment, but the debate on it concluded when Deputy Costello replied.

Mr. Costello

The Chair should give the Deputy a little scope.

Mr. Deasy

Is that the position?

Acting Chairman

The procedure is that Deputy Costello is entitled to speak once, then for two minutes and then in reply and that concludes the debate. Deputy Deasy is entitled to contribute before Deputy Costello concludes the debate on the amendment.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Mr. Costello

I move amendment No. 3:

In page 5, line 30, to delete "it" and substitute "the court".

This amendment, much like the previous one, is a technical one to clarify matters and make them more appropriate. The Bill states: "Where a person who has been remanded under section 6 and is before the High Court and it is satisfied. . . ”. It is unusual to refer to a court as “it”. I do not know if I have seen it referred to in such terms before. We must have proper cognisance of the authority and status of the court. The reference to “it” is of low quality and I would like to see the court referred to by its proper title. This would also clarify the context of the sentence.

Mr. McDowell

I fully accept the Deputy's suggestion that the term "the court" would be preferable to "it" and I am minded to accept the amendment and recommend it to the House.

Mr. Costello

I am glad the Minister, as a legal man, sees the desirability of the amendment.

Amendment agreed to.

Mr. Costello

I move amendment No. 4:

In page 8, line 23 after "be" to insert "conveyed to or outside the frontiers of the State and there".

Section 17 states that any person committed under section 9, that is, where he or she has been arrested under this legislation, appeared in court and has been sent to prison, should "be surrendered to such person as in the Minister's opinion is duly authorised by the requesting Convention state to receive him or her". We should strengthen that by having the person who committed the offence conveyed to or outside the frontiers of the State.

It would be normal procedure in extradition matters that a person would be brought to the frontiers of the State. It appears to be a much more appropriate way of dealing with this matter than handing the person over to a foreign agent within the State. That does not appear to be the appropriate way. Any extradition or deportation order would require that a person be at least handed over at the frontier of the State or brought into another state.

It is strange that it should be left open that the person could be surrendered to an agent of another state within the frontiers of this State. We should adopt a position more or less along the same lines as in an extradition or deportation case. Effectively, they are similar. It should be specified in the legislation that the person should be conveyed to or outside the frontiers of the State.

Mr. McDowell

It is my recollection that the extradition law was amended specifically to end the practice of requiring people to be handed over at the frontier of the State. A different formula was put in place in recent extradition law which specified that it can take place within the State, for example, to someone travelling on an aeroplane about to leave the State, so that a person could be handed over at Dublin Airport, for example, without their having to be accompanied and a formal hand over in mid-air or whatever conducted.

There was a time when the extradition law required that people should be handed over at Carrickarnan on the Border and there was a great deal of huffing and puffing about the exactitude required when it needed to happen there. If there is extradition by sea, are we seriously saying that a garda must accompany someone to the 12 mile limit or whatever and then hand him or her over on a boat that has left the State? Likewise with air transport, do we want a garda to accompany a person being extradited and hand him or her over as they fly over the territorial limit of Irish airspace?

The Deputy's point is probably unduly restrictive and we must be practical about this. It would not really add much to the value of the legislation if we were to say it had to happen at the edge of Irish territorial sovereignty. I have a feeling that at some stage the law was specifically amended to avoid that difficulty in extradition matters.

Mr. Costello

My concern about this section is that it is silent as to where the surrender takes place. All it says is that the person in question should be surrendered to such a person who, in the Minister's opinion, is duly authorised by the requesting state. He or she could be surrendered in O'Connell Street or anywhere. It does not say that it must take place on boarding a ship or aeroplane.

There is no monitoring or policing mechanism. The Minister is adamant that, when it comes to deportations, a sufficient number of gardaí are present to ensure a person is deported. If we are serious when dealing with illicit activities at sea, such as transporting drugs or weapons, there should be some element of monitoring or mechanism to ensure that, once the hand-over has taken place, the person leaves the State. Where does the person go to? What does it mean when he or she has been handed over? The legislation is silent on that. All I am doing is putting in place a mechanism whereby we can know that a person who is no longer allowed to be in the State because of the nature of his or her activities has been conveyed out of our jurisdiction. That is not reflected in the legislation and I would like to see some mechanism whereby it would be.

Mr. McDowell

This is not specified in other Acts, such as the international war crimes legislation, or in the case of extradition. It is an unnecessary complication and perhaps the Deputy would accept that. It does not add anything to the quality of the legislation. If I thought it did and was a technical improvement, I would, as I have shown in the case of two other amendments, accept it. I think it is a new constraint being added which, in my submission to the Deputy and to the House, is simply not necessary. The phrase that they be conveyed to or outside the frontiers of the State and there surrendered suggests that an individual cannot be a handed over at Dublin Airport or put on a foreign boat but must be brought out to the 12-mile limit for a hand over ceremony and then somehow that officer must be brought back by another boat or else he or she goes with the person the whole way. I do not think that would be a good idea.

Mr. Costello

I will not press the amendment. The motion is silent on what will happen to the person once they are surrendered. They are not to be conveyed anywhere and there is no further direction. They could remain in the jurisdiction for the next 12 years. They could apply for asylum but they are unlikely to do so. There is no direction as to what would happen other than surrender to an authorised person within the State. To my mind that leaves them in limbo.

What will the authorised person do? Will he or she convey them outside the State or will he or she put them up in his or her own house? Clearly the intent is that they be conveyed out of the country because they were arrested and were suspected of being involved in illicit activities by sea. The fact that they are just put into the care of an authorised person means that they could be free to go anywhere and could become involved in anything. There could be better wording used.

Amendment, by leave, withdrawn.

Mr. Costello

I move amendment No. 5:

In page 10, line 34, after "Minister" to insert "(and in the event of an application such as is referred to in section 17(1)(a) or (b), the Court so referred to)”.

Section 22 deals with capital punishment. It states, "the surrender of the person shall be refused unless that state gives such assurance as the Minister considers sufficient that the death penalty will not be carried out." When a person is arrested and where an offence is punishable by death under the law of the convention state, the Minister can seek assurances that the death penalty will not be carried out. I suggest that the court should also be satisfied. The assurances should be made in the court in the first instance and the Minister should also be given the assurance and there would be a double insurance.

We have abolished the death penalty and we abhor it. It is contrary to our international obligations. We should double-lock the Minister and the courts so that the assurances will be watertight and a person will not be sent back to a country where the death penalty might be used. I ask the Minister to accept this amendment.

Mr. McDowell

I am not disposed to accept the Deputy's amendment. The Deputy's suggestion is that the High Court should also have the capacity to effectively refuse extradition and to demand assurances from foreign states regarding their intentions. I believe in the separation of powers and relations between states are fundamentally a matter for Government under the international law convention. It is already the situation regarding extradition that the Government and the Minister come to a conclusion about the adequacy of the assurances given. It is not done at the court stage. It would be unnecessary duplication. The normal sequence of events is that the legal issues are disposed of and that one last issue is there. At that stage the Minister refuses to extradite unless and until he receives satisfactory assurances from the requesting state that the death penalty will not be carried out.

It is difficult to see what additional benefit would be conferred if this was vested in the High Court. It is easy to see that it could be used for the purpose of delay because it would bring forward the time at which the requesting state had to make those assurances to the point when the matter was being considered in the Irish courts. In the last analysis, what would be the point if the High Court was satisfied with the assurances that were given because the Minister's function would be entirely residual? If the Minister was not satisfied then it would be a somewhat extraordinary situation.

This is the norm regarding extradition. We are doing something unusual. We are not giving a lesser right than we do in our customary law of extradition and we are not giving a lesser protection. In the circumstances this would avoid unnecessary court proceedings. Supposing there was a perfectly straightforward case where the only issue was the death penalty and in every other respect a person being sought was obviously going to be surrendered, the idea that the court hurdle could not be dealt with until the death penalty issue was resolved and that at a later stage the Minister would have to be reassured a second time is in my view, unsatisfactory.

Our system is such that the Executive arm of the State handles international relations. Our courts do not normally receive assurances from foreign states and are not in a position to do anything about those assurances if they are not honoured. Under the Constitution, the Executive arm of the State is given the responsibility to deal with international relations.

It is theoretically possible but extremely unlikely if somebody breached an undertaking in this respect, it would be for the Executive arm of the State to respond; the High Court could do nothing about it. If the extradition of an individual was requested and the High Court had a role in demanding assurances and those assurances were given and later broken, there is nothing that an Irish High Court judge could do in the circumstances. He or she cannot compel the attendance before him or her of a foreign power or of its ambassador or threaten to punish. We do not make orders which are in vain and we do not confer jurisdiction on people which they cannot enforce. That is why it falls to the Executive rather than to the Judiciary to receive assurances in this respect.

Mr. Deasy

May I ask if this is a hypothetical situation in the future or is there a precedent?

Mr. Costello

The situation is that in a lot of areas we do not allow people to be extradited to jurisdictions where the death penalty is in operation. This is where the convention state requests that the person be surrendered to its jurisdiction after he or she has been arrested in Irish waters and brought before an Irish court. We are seeking to ensure that if there is a death penalty imposed for the offence, we want a double assurance that the death penalty would not be imposed. It is a human rights issue to protect the person.

Acting Chairman

Deputy Costello, we have reached the time for Private Members' Business. We can conclude now if we wish.

Mr. Costello

Yes, I think we should conclude. I accept what the Minister has said.

Amendment, by leave, withdrawn.

Bill reported with amendment, received for final consideration and passed.