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European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Bill 2011: Second Stage

Tuesday, 15 May 2012

Dáil Éireann Debate
Vol. 765 No. 3

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Minister for Justice and Equality (Deputy Alan Shatter): Information on Alan Shatter Zoom on Alan Shatter I move: “That the Bill be now read a Second Time.”

I am pleased to introduce the Bill, the main objective of which is to apply the provisions of the European Arrest Warrant Act 2003 to states other than EU member states. It also makes procedural and technical amendments to the 2003 Act and the Extradition Acts from 1965 to 2001, and gives effect to an EU framework decision, 2009/299/JHA, on the mutual recognition of judgments rendered in the absence of the defendant.

  6 o’clock

Before dealing with the detail I wish to make some general comments on the European Arrest Warrant Act. I am keenly aware that this is the third Bill to amend the legislation since its enactment in 2003. It is worth recalling the circumstances in which the EU framework decision on surrender, to which the Act gives effect, was negotiated. While negotiations on a simplified system of surrender between EU states had been ongoing since 1999, they were given added impetus following the 11 September 2001 terrorist attacks on the United States. The terrorist attacks not only highlighted the importance of effective EU measures on internal security but also put considerable pressure on the EU to produce substantial legislative action in a very short period. Thus the European arrest warrant, EAW, framework decision was agreed with unprecedented speed. The speed of negotiation and the compromises involved resulted in a somewhat less than perfect final text. In transposing the instrument into Irish law, Ireland, like other member states, was faced with legislating for an altogether new concept of an inter-court surrender process. Given the deadline for entry into force, the Bill was drafted with some haste and was rushed through the Oireachtas. In these circumstances it is hardly surprising that practical experience of the operation of the EAW combined with court interpretations of the Act meant that from an early stage the need for amendment became clear.

The Act was amended in 2005 and again in 2009 and is once again being amended now. I consider this piecemeal approach to be most unsatisfactory. It is unfair to the courts, to legal practitioners, to our fellow member states and to the subjects of EAWs. I am initiating a fundamental review of the legislation which will thoroughly examine our European arrest warrant procedures to determine how they can be simplified and streamlined.

It is likely that the review will take some time and, in the interim, I am anxious to ensure Ireland is in a position to discharge its international obligations in regard to extradition and surrender. It is for that reason that I am proceeding with the Bill to make those amendments which cannot await the outcome of the review.

The Bill has three main parts. Part 2 allows the European arrest warrant system to be extended to non-EU states. Part 3 makes a series of amendments to the European Arrest Warrant Act 2003, while Part 4 makes a series of amendments to the Extradition Act 1965. I will deal with each part in turn.

Part 2 enables the provisions of the European Arrest Warrant Act 2003, referred to as the EAW Act, to be extended to non-EU countries. The Act gives effect to the EU framework decision on the European arrest warrant. It replaced extradition arrangements between EU member states which were, by and large, conducted on a government to government basis with [282]a system of surrender based on arrest warrants issued and executed by judicial authorities of member states.

The key element of Part 2 is section 2(1) which provides that the Minister for Foreign Affairs and Trade, following consultation with me, as Minister for Justice and Equality, may, by order, apply all or any of the provisions of the EAW Act to a non-EU country where there is an agreement between the European Union and that country on surrender. There is currently one such agreement, the 2006 agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on surrender procedures. Ireland will be in a position to give effect to the agreement when the Bill is enacted. The terms of the agreement are almost identical to those of the framework decision on the European arrest warrant. Rather than repeat these provisions in detail in a separate statute, I have opted for the approach of enabling the provisions of the EAW Act to be extended, by order, to third countries. One advantage of this approach is that the provisions of the European Arrest Warrant Act are familiar to the courts and practitioners and have been clarified in numerous judgments during the years. Also, I understand agreements similar to the Norway and Iceland agreement are likely to be concluded by the European Union with other countries in the future. The present approach will allow the terms of the European Arrest Warrant Act to be applied to such countries without the need for further primary legislation.

Any extension of the EAW Act to non-EU countries is subject to some important limitations. Under section 2(3), an order applying the EAW arrangements to a third country may only be made where there is an EU agreement on surrender in force with that third country. Such an agreement would require a high degree of mutual trust between the European Union and the country concerned. A further limitation is that under section 2(4), an order applying the EAW Act to a third country must reflect the terms of the agreement to which it gives effect.

Part 3 contains a number of amendments to the European Arrest Warrant Act 2003. Since the EAW system came into force in 2004, the number of European arrest warrants received in, and issued by, Ireland has increased year on year. The seventh and most recent annual report on the operation of the European arrest warrant, which I laid before the House, is for 2010. It shows that 161 persons were surrendered to other member states in 2010, up from 69 in 2009. Of those surrendered, 87 were sent to Poland, while 34 were sent to the United Kingdom. Ireland received 373 EAWs in 2010, up from 326 in 2009. The offences cited included murder, rape, drug trafficking, assault and robbery. Ireland issued 51 warrants in 2010 and 26 persons were surrendered to it during that year. While the 2011 figures have yet to be finalised, I understand the upward trend is continuing.

As the volume of warrants increases, officials and practitioners gain greater practical experience of the operation of the EAW system. Also, the courts have had the opportunity to provide important interpretations of the law in their judgments. My Department monitors these developments continuously and, in consultation with the Office of the Attorney General, identifies where amendments to the Act could be made to improve the operation of the European arrest warrant. The amendments in this part arise from that process. Many of them are of a purely technical or linguistic nature and, rather than detailing all the changes, I will comment on the more substantive provisions.

Section 5 deletes a reference to the European Union framework decision from the Act, the reason being to clarify that the framework decision does not have direct effect in Irish law. There are similar deletions in sections 8 to 10, inclusive, and 15 and 16 of the Bill.

Section 6 amends the form of the European arrest warrant as part of the transposition into Irish law of the 2009 EU framework decision on judgments in absentia. The framework decision [283]requires that where the requested person was not present at his or her trial, the European arrest warrant must contain certain information on the proceedings. The amendment provides for this.

Sections 9 and 10 contain the most important changes made by the Bill to the European Arrest Warrant Act. These sections amend sections 15 and 16, respectively, of the Act. These sections are the heart of the Act and critical to the operation of the surrender procedure. They set out the procedure the High Court is to follow in ordering the surrender of a requested person. Section 15 applies to cases where the requested person consents to surrender on foot of the European arrest warrant, while section 16 applies where the person has contested the European arrest warrant.

The main purpose of the amendments is to provide a procedure which ensures that at all stages in the surrender process the requested person is subject to the supervision of the court. Within the new section 15, the amended section 15(3) removes the option for the person whose surrender has been ordered by the High Court to request that the surrender order come into effect early. The original provision created operational difficulties in meeting the time limits specified for the carrying out of the surrender order. However, I now believe it is desirable to allow for “fast track” surrender where this does not create operational difficulties. I will bring forward an amendment on Committee Stage to provide for this.

The amended section 15(4)(c) will bring greater clarity to the position of a person who is placed in custody on foot of an order for surrender. It provides that where the court orders the surrender of a person, it must also order that he or she be detained for a period not exceeding 20 days by the end of which period he or she must, normally, be surrendered. The current text merely provides that the person be committed to prison pending the carrying out of the order.

The amended section 15(4)(d) is important. It provides that if a person is not surrendered by the end of the 20 day period mentioned, he or she must be brought before the High Court again as soon as practicable after the deadline passes. Alternatively, if it appears to the central authority which deals with the administrative and logistical aspects of surrender that it will not be possible to surrender the person by the deadline, he or she must be brought before the High Court before the deadline expires.

The amended section 15(5) sets out the powers of the court in dealing with a person brought before it under the previous subsection. If the court is satisfied that the person was not or will not be surrendered by the deadline owing to circumstances beyond the control of Ireland or the issuing state, it will, with the agreement of the issuing judicial authority, fix a new surrender date and order the detention of the person for up to ten days after the new date. This new provision will bring the Act closer to the relevant provisions of the framework decision. A new section 15(5A) is inserted which provides that if the person is not surrendered within ten days of the new date fixed, he or she must be discharged. The new section 15(5B) provides that where the period for surrender has expired and the person has not been surrendered, he or she will be deemed to be in lawful custody from the expiry of the period up to the appearance before the court. There will, therefore, be no period in the process in which the person’s detention will be other than lawful.

Section 15(7) is new. It clarifies that it is within the jurisdiction of the High Court to grant bail to a person where an appeal has been lodged to the Supreme Court against an order for surrender. This had been the subject of some doubt and it is best to bring legal certainty to the matter.

Section 10 makes a number of amendments to section 16 of the 2003 Act. That section deals with procedures where the person has contested the European arrest warrant. Many of the [284]amended provisions are identical to those included in the amended section 15. I do not propose to take up the time of the House in repeating my comments on the previous section which apply equally to this section, including where I have indicated a proposed Committee Stage amendment.

Having considered the text of section 16(4)(b) in the overall context of the substantial amendments to the section, I believe it is no longer necessary or appropriate. I intend to move an amendment on Committee Stage to delete it from the Bill.

Sections 11 to 22, inclusive, make a range of changes to the 2003 Act, including some which are technical in nature or consequential on changes referred to. I will confine my comments to the more important changes.

Section 11 amends section 18 of the European Arrest Warrant Act which sets out the circumstances and procedure whereby the High Court may postpone the surrender of a person on humanitarian grounds or where the person is being prosecuted for an offence here or serving a sentence in the State. The new text applies the provisions of the section to all persons serving a sentence in the State, whether the sentence was imposed in the State or elsewhere. This means that the section will apply to prisoners who have been transferred here to serve their sentences.

I have been made aware of operational difficulties in the working of this section and I intend to bring forward an amendment at Committee Stage to address the matter.

Section 18 is, as matters stand, a purely technical amendment to section 30 of the Act which deals with cases where an extradition request and a European arrest warrant are received in respect of a person. However, I should signal that it has been brought to my attention recently that the substantive text of the section could create difficulties. I am, therefore, preparing an amendment for Committee Stage which will address the problem.

Section 19 simplifies the procedure for the issue of a European arrest warrant by Irish courts. The current provisions require that the court be satisfied that the person in respect of whom a warrant is sought is not in the State. In practice, this can be difficult to state with absolute certainty and thus the revised provision omits this requirement.

As applications for a European arrest warrant can only be made by or on behalf of the Director of Public Prosecutions, the DPP should be in a position to request the issue of a European arrest warrant subject only to there being a domestic warrant in existence.

Section 22 amends section 45 of the Act, which sets out the grounds on which the State may refuse surrender if the person to whom the warrant refers was not present at the trial which led to the sentence being imposed. Again, this amendment is part of the transposition of the EU framework decision on judgments in absentia. Having reflected on this provision and consulted the Attorney General, I will bring forward an amendment on Committee Stage which will better reflect the relevant provisions of the framework decision.

I turn now to Part 4 which amends the Extradition Act 1965. The Act provides the statutory basis for our extradition arrangements with countries other than member states of the European Union. As with the amendments to the European Arrest Warrant Act, these arise from operational experience and court interpretations. The most important changes are in section 25, which substitutes sections 15 to 17, inclusive, of the 1965 Act. The existing section 15, which prohibits extradition where the offence is regarded as having been committed in the State, is not being re-enacted. The transnational nature of crime nowadays means that a provision such as this is no longer appropriate. The revised text of section 15 clarifies the position regarding extradition where there are proceedings in contemplation or pending in the State for the same offence as that for which extradition is sought. I intend to move an amendment to this section [285]on Committee Stage to provide for more precise wording in the amended text of section 15(1)(b).

The revised text of section 16 deals with persons who are convicted in their absence. It is appropriate that we should have such a provision in our legislation. The revised text of section 17 clarifies the position on the refusal of extradition where the principle of ne bis in idem, or double jeopardy as it is commonly referred to, applies. It provides that the question of whether a judgment is final is to be determined by the law of the state where the judgment was handed down.

The other changes in Part 4 are mainly procedural or technical, including changes that should lead to more efficient handling of extradition applications. Section 24, for example, repeals a provision in the 1965 Act on evidence by affidavit and will thus address difficulties in practice in dealing with states whose legal systems do not embrace the concept of affidavits.

A further change with a focus on efficiency is section 26, which deals with the documents to support a request for extradition. It provides that a reproduction or copy of the relevant documents will suffice and allows for the inclusion of identification material with a request for extradition, where it is available. In similar vein, section 31 extends the range of documents that can be received in evidence without further proof to include any evidence in writing received from a requesting country. It also enables documents to be authenticated by being signed or sealed by the appropriate authority.

Section 28 inserts a new provision in the 1965 Act which provides the High Court with a general power to adjourn proceedings under the Act and remand the person sought in custody or on bail in the course of such proceedings.

Section 30 inserts a new section 36A in the 1965 Act which deals with identification material. It authorises the Garda Síochána to fingerprint, palm print or photograph persons arrested under the Act for the sole purpose of verifying the person’s identity. Identification material of this type is often sent with extradition requests and until now the Garda Síochána had no power to take similar identification material for comparison purposes. The new section sets out the procedure for taking the identification material, including the use of reasonable force where necessary and authorised.

In addition to the proposed Committee Stage amendments already mentioned, I will propose some further amendments to various sections, which are essentially of a linguistic or technical nature. I appreciate this area of the law is somewhat complex and look forward to Deputies’ comments on the Bill, which I commend to the House.

Deputy Dara Calleary: Information on Dara Calleary Zoom on Dara Calleary I thank the Minister for introducing this administrative and technical Bill, which aims to facilitate the efficient processing of European extradition warrants. The creation of pan-European freedom of movement, goods and capital has, unfortunately, generated transcontinental criminal movements. The legislation aims to clear up and consolidate existing legislation and further empower the authorities to deal with the increasing number of European extradition warrants.

It is an irony of having in place a proper justice system that the criminals who often seek the system’s protection use its checks and balances to delay the administration of justice. As legislators, we must seek to strike a balance between protecting the rights of all accused persons, while also ensuring that those who seek to avoid justice cannot hide behind anything of an administrative or procedural nature in our laws. The Bill, once amended in the manner outlined by the Minister, achieves this balance and, as such, the Fianna Fáil Party will support it.

The range of technology and new forms of criminality, including cybercrime, that has evolved since the introduction of the European arrest warrant system in 2003 challenge legislators to [286]produce legislation that is sufficiently strong and effective to keep ahead of those criminal minds which seek to exploit technology for all the wrong reasons. For this reason, it is important to design our laws in a manner that retains checks and balances and produces provisions that are administratively lean enough to respond to threats we cannot yet foresee but which may form part of the criminal fraternity’s armoury only 12 months from now.

It is difficult to believe that only 20 years ago Members of this House, specifically members of my party, used to drive themselves apoplectic over the issue of extradition. Those who can no longer recall those days, which does not include the Minister and Leas-Cheann Comhairle as they were Members at the time, should watch the scenes portrayed in the “Reeling in the Years” programme broadcast last Sunday night. That Deputies are discussing extradition in a relatively businesslike manner is an indication of how far relations on this island and with our neighbouring island have improved and demonstrates the overall success of the European wide extradition model. In that respect, I acknowledge and share the concerns the Minister expressed about piecemeal changes to the system.

The majority of the extradition requests received and issued by Ireland are governed by the European arrest warrant procedure. According to the European Commission, the total number of European arrest warrants issued by member states between 2005 and 2009 was 54,689. These resulted in the surrender of 11,630 suspects, giving a 21% success rate. The figures indicate that while the system is widely used, it is subject to checks and balances to ensure it is not abused. As the Minister noted, 161 persons were surrendered by the State to other member states in 2010.

I share the Minister’s concerns that the review of the European arrest warrant process since 2003 has been piecemeal and welcome his commitment to undertake a review of our entire suite of extradition laws. This review should consider the administrative burden the European arrest warrant system places on the judicial and Garda authorities and ascertain whether technology can be used to reduce this burden.

The provisions outlined by the Minister, specifically those relating to sections 9 and 10, constitute a considerable tightening of practice in the European arrest warrant system. Vague aspirations on deadlines are being tightened up and strict limits are being imposed. I assume this will be accompanied by very rigorous training for everybody involved in this system, and that prior to the President signing this legislation with its amendments into law, they will be made aware of these changes. There cannot be a situation where there is an overlap between the implementation of this legislation and the very substantial changes in practice that come with it for somebody possibly evading justice.

The EAW procedure, since its inception, has considerably changed the nature of extradition within the Union. As the Minister has said, it came into place rather suddenly, following long discussion immediately in the aftermath of the events of 11 September 2001, and there has been a need for considerable changes since. There was a degree of vagueness in the EAW procedure that was, looking at it now, quite surprising in a legal document, but it was seen at the time as a necessary response to the events of that day. As with any outrage, distance means we tend to forget the horror and look at what could have been done in hindsight. Now we have a chance to do that in this review.

If we enact this Bill, it will give effect to various Council decisions which govern situations where people have been tried in their absence. This is a growing trend in criminal law. The decision is designed to enhance the procedural rights of such persons while simultaneously promoting the principle of mutual recognition of judicial decisions rendered in their absence. It establishes precise and consistent grounds for non-recognition by member states of decisions [287]rendered in absentia. I also welcome the changes the Minister is bringing in regarding identification material. This Bill, if enacted, will allow the Garda to take fingerprints, palm prints and photographs, but only for the purpose of identifying a person arrested under the 1965 Act.

The key provision in the Bill is the extension of the provisions of the European Arrest Warrant Act 2003 to third countries, when previously it had only applied to designated EU member states. If enacted, the provisions of the 2003 Act may be applied to third countries, but only where an agreement on surrender is in place between the third country and the EU, such as the agreement on the surrender procedure between EU member states and Iceland and Norway. The extent of the application to third countries will be restricted. The extension is to be welcomed as we trade and do more business. Unfortunately, legitimate trading can be accompanied by criminal activity and we must ensure our armoury is fully up to date.

I welcome the various commitments made by the Minister in respect of amendments. I think they strengthen the Bill, but he might give the House a timeframe, in what is a very productive legislative schedule in his Department, as to when he will bring in a full review of the legislation. I presume it will not happen this session and the chances of it happening in the next session are quite limited. Will the review be legislative-based, or does the Minister intend to have a public consultation on it? Any other details are welcome.

Deputy Jonathan O’Brien: Information on Jonathan O'Brien Zoom on Jonathan O'Brien I would like first to apologise for being late. I am having one of those days where I wish there were an extra four or five hours in it. I am sure the Minister has had many such days, but I apologise for missing the start of his speech. From listening to it on the monitor and from what I gathered when I arrived, I know the purpose of the Bill is to expand the provisions of the original European Arrest Warrant Act 2003 to states other than those designated EU member states. I am sure the Minister is aware that when the original Bill came before the House, our then spokesperson on justice, Deputy Ó Snodaigh, opposed it for several reasons. At the time we raised a number of concerns about the Bill which we felt needed to be addressed for us to give it our support. Unfortunately, they were not forthcoming as the Bill progressed through the House. As a result, we opposed the original Act in 2003, as I am sure we opposed the two further amendments in 2005 and 2009. I can see the Minister smirking and I am sure he is asking what is new there.

From speaking to Deputy Ó Snodaigh about this Bill and from doing my own research on it, I know that some of the concerns raised back then were raised by a number of organisations, including the Irish Human Rights Commission. The commission produced a position paper and furnished it to the then Minister for Justice, Equality and Law Reform in 2003, raising some of the concerns it had with the Act. The commission believed the original Act diminished some of the protections for individuals regarding extradition, and in some cases could violate their human rights. The commission was correct to put those concerns forward and to relay them to the Minister at the time. The commission also believed the EU framework decision which gave rise to the European arrest warrant was based on a flawed presumption of effective and equivalent protections of accused persons’ rights between EU member states. At the time, we agreed with that assessment and we still agree with it today.

I know the Minister has moved to address some of the concerns in this Bill and he has indicated some of the amendments he will put forward. That said, the system as constructed currently is flawed. There is room for improving the whole European arrest warrant system. I am sure the Minister will disagree with that analysis, but it is important to point out that in the absence of any human rights proofing of legislation, we can only assume that the fundamental rights of individuals could be compromised. The Minister will argue probably that we are looking at some technical changes to the original Bill, and that there is really not much to worry about, but we must look at the system as it currently operates. There is no doubt the [288]current system is very rigid in its operation. For the system to be effective, we must place full trust in the standards and procedures of other EU states and, if this Bill is passed, in third party states. We are in favour of working with other states, and in the interests of public safety and justice, we need to address some of the concerns raised about how the European arrest warrant system is operated.

The current system is neither robust enough nor human rights centred. Therefore, bringing in any legislation which proposes to extend it beyond designated EU states is wrong. We would be better off spending our time trying to fix some of the flaws in the current system. The Minister will probably not take my word for that, but in March 2011, Mr. Thomas Hammarberg, the Council of Europe Commissioner for Human Rights, described the overuse of European arrest warrants as a threat to human rights:

There has, however, been repeated criticism of the manner in which the EAW has functioned in a number of concrete cases.

This criticism must be taken seriously. Human rights organisations have expressed concerns about the imprisonment of innocent persons, disproportionate arrests, violations of procedural rights and the impossibility in some countries for an innocent person to appeal against a decision to be surrendered. The problems appear to have worsened with the increase of the number of EAWs [...]

The EAW has been used in some cases for which it was not intended, sometimes with harsh consequences on the lives of the person concerned. It is thus high time to reform a system that affects thousands of persons every year.

We heard some of the figures from Deputy Calleary. More than 50,000 European arrest warrants have been issued.

Mr. Hammarberg was correct in his analysis. To press home the point, I cite the example of a Polish schoolteacher and grandfather who lived in Bristol. A European arrest warrant was issued for him to face trial in Poland on a charge of theft, dating to his withdrawal of money from bank over and above his agreed overdraft limit. We would all agree that the framework decision was not intended to deal with cases such as this.

The European Commission, in its third implementation report, acknowledged that there were serious problems with the European arrest warrant system and made a number of recommendations to remedy its defects. For Sinn Féin to support the Bill we would have to see some changes to it. There would have to be a guarantee that the current elements of unfairness would be eradicated and that the rights contained in the European Convention on Human Rights and the Charter of Fundamental Rights would be compatible with any system related to European arrest warrants.

For this to occur, there would need to be a number of changes. We would need to introduce a measure to prevent the misuse of European arrest warrants, especially for minor offences. We would need to introduce a proportionality test for assessing the warrants to prevent the possibility of an infringement of the human rights of the individual being sought. We would also need to allow states to refuse a surrender when it is felt that the fundamental rights of the individual are not guaranteed. The system must be constructed in order that the surrender of a person subject to a European arrest warrant can be deferred until the issuing state is trial ready. People must not be compelled to spend unnecessary time in pre-trial detention.

The original framework decision on which the European arrest warrant, EAW, system was constructed was based on a flawed presumption that there were effective equivalent protections [289]between member states. In the absence of a fundamental change to the EAW system, there is too much risk associated with it. Last year, members of the European Parliament held a plenary session on this issue. The consensus of the session was that while EAWs were a vital tool in combating cross-border crime, there was an urgent need to reform how the system operated in the interest of justice. Fair Trials International has termed the scope of the current EAWs as a controversial no-questions-asked system which has removed traditional safeguards against unfair extradition. It would be a grave mistake to allow this extremely flawed system to be expanded beyond the borders of the EU without first addressing some of the concerns raised, not only by Sinn Féin but also by the Human Rights Commission, Fair Trials International, the Council of Europe Commissioner for Human Rights and by MEPs in the plenary session of the European Parliament when it debated the system last year. We need to address some of those concerns.

While Sinn Féin is opposed to the Bill and will attempt to amend it, we agree that a system is needed to allow the extradition of individuals from one member state to another. However, such a system must be robust and human rights compliant. If it is not, it will lead to miscarriages of justice. We will have to address this issue as the Bill progresses through the Houses.

Proportionality is recognised, rightly, as a fundamental principle of EU law and it must be applied to the European arrest warrant system. Without the application of standard proportionality tests the system will continue to be abused. While we recognise the need to introduce measures to address cross-border crime, this cannot be done at the expense of human rights. That is where we differ from the Minister. We need legislation that is sufficiently robust to deal with those who engage in international crime and use borders to escape justice, but we cannot compromise the human rights of individuals to find an easy solution to this problem.

In his opening speech, the Minister alluded to the fact this process was rushed at the beginning and a review is now taking place. We welcome that. I hope there will be an opportunity for Opposition parties to contribute to that review, to give our opinions and propose possible solutions. If there is, we will be more than happy to contribute to that process.

Deputy Clare Daly: Information on Clare Daly Zoom on Clare Daly With the agreement of the House, I will share my time with Deputy Mattie McGrath.

An Ceann Comhairle: Information on Seán Barrett Zoom on Seán Barrett A slight difficulty arises here. The Order of Business says the Minister and spokespersons for the main parties may speak for 30 minutes. It does not allow for the sharing of time. I made this point on Friday last. The order goes on to say the speech of each other Member shall be 20 minutes. There is a distinction between the time allowed to a spokesperson and to an ordinary Member.

On this occasion, I will ask the permission of the House to allow the sharing of time but I ask that the Technical Group clarify this matter so that it can be built into the order. On Friday, I had to disallow the sharing of time, even though the Deputy who was sharing was able to speak immediately afterwards. This is a technical point.

The arrangement is that a spokesperson is speaking on behalf of his or her party or group, as distinct from speaking as a Member. That is why additional time is given to them. I simply wish this matter to be clarified. I do not want to have this discussion every time a spokesperson wishes to share time.

Deputy Clare Daly: Information on Clare Daly Zoom on Clare Daly We will have the matter clarified.

An Ceann Comhairle: Information on Seán Barrett Zoom on Seán Barrett Is it agreed that Deputy Daly would share time with Deputy Mattie McGrath? Agreed.

[290]Deputy Clare Daly: Information on Clare Daly Zoom on Clare Daly Thank you, a Cheann Comhairle. I am surprised we are discussing the implementation of a procedure that, as Deputy O’Brien said, has been identified as controversial and is under the spotlight, with repeated demands for the European arrest warrant, EAW, system, as it currently operates, to be reformed. In that context, to seek to expand the system to unspecified countries sets a dangerous precedent to which I strongly object. The aim of the Bill, in essence, is to expand the geographical scope of this controversial, no-questions-asked, system of extradition which currently operates between EU countries. It was obviously introduced in response to the events of 11 September 2001. The reality is that the procedure has removed political discretion on extradition decisions and also many of the legal barriers that existed. If one country demands an extradition under this procedure, another country must more or less grant it.

I was in contact with the Irish Council for Civil Liberties today on the matter. On foot of that it contacted its colleagues in Fair Trials International, a well-respected human rights charity, as the Minister is well aware, which provides assistance to people who have been arrested in another country and who fight to campaign and reform in cases of cross-border injustice. Fair Trials International issued a press release today to express its concerns on the fast-tracking of extraditions being applied to countries outside the European Union. Its chief executive stated:

People should not be torn from their homes and families and shipped off to foreign prisons without a proper judicial process. Even within the EU, no-questions-asked extradition has resulted in serious cases of injustice. It would be a huge mistake to expand these flawed arrangements beyond Europe.

Despite this, that is what the Minister proposes with the Bill. The organisation has worked with victims of abuse under the existing European arrest warrant. It highlights many instances of people who have been imprisoned in other countries awaiting trial and identifies the fact there is a growing recognition throughout Europe that the arrest warrant is in need of reform. It does not make sense that we are expanding the system to other countries. That does not add up. The Irish Council for Civil Liberties said today it shares the concerns expressed by Fair Trials International. That is something we must take on board in considering the legislation.

Given the intention is to expand the legislation to jurisdictions outside the European Union, we can only be guided by what has happened under the legislation to date. Fair Trials International compiled a major report last year based on its analysis of the European arrest warrant seven years after its introduction. It has argued the case for reform. The European Commission itself issued a report expressing concern about the way in which the European arrest warrant was being used across Europe and highlighted the disproportionate use of arrest warrants in minor cases. That is no wonder when one examines some of the case studies that have been highlighted under the use of the procedure.

Deputy O’Brien referred to the case of a Polish schoolteacher, but there are other examples of how the arrest warrant we are seeking to extend has operated. A young man from England who is referred to as Patrick Connor — that is not his real name — was arrested in Spain with two friends in connection with counterfeit euro. He had no counterfeit euro on him and he had no idea that his friends did or how some ended up in the apartment in which they were staying. The amount of money in question was €100 in two €50 notes. Patrick and his friends were arrested, released and returned to the UK. Four years later he was arrested on foot of a European arrest warrant and extradited back to Spain. He was held in a maximum security prison in Madrid and faced the prospect of a two year wait for pre-trial detention. He decided to plead guilty. He spent nine weeks in prison before coming home to finish his studies with his life blighted by a criminal record.

[291]Many similar cases have been highlighted. I will not go through them all but they have been plentiful. A 40 year old British secretary was arrested on foot of one such warrant in 2008 in connection with an arrest in Portugal in 1996 — 12 years earlier — in regard to a partner’s use of counterfeit money while on holidays, again worth less than €100. Those are examples of the type of cases for which the warrant has been used or, more appropriately, abused.

It has also been pointed out that issues arise in extradition cases dealt with in this country. In the case of Sean Garland, for example, if the arrest warrant had been made on foot of a European arrest warrant within the EU instead of an extradition warrant from the United States, then under the terms of the Bill he would have been handed over with no questions asked. Given the controversy attached to the case in any event, the large cross-party support for Mr. Garland and the serious civil liberties issues that were highlighted, the fact that he could have been caught in the net had the legislation been in place shows the flaws that exist in the process. We must take those points on board.

I note the Minister has said he will introduce changes on Committee Stage, but that is not enough. I seek a commitment from him that when the Bill is considered on Committee Stage, organisations such as the Irish Council for Civil Liberties, Fair Trials International and other human rights organisations would be invited to make submissions before we would consider transposing and extending the legislation. Deputy O’Brien alluded to a number of important points in terms of the reforms that must be addressed before there could be any question of extending the legislation to other jurisdictions in which we have no guarantee of the standards that exist. Some of the cases highlighted focus on issues such as proportionality. Previously, people have been extradited for minor offences and incidents which took place a long time ago, such as the two I highlighted. It is a lunatic situation that the cases have been brought under the remit of a European arrest warrant.

A report to the President of the European Council has noted that European arrest warrants have even been issued for offences such as the possession of three ecstasy tablets, the theft of two car tyres and, in another incident, the theft of a piglet. Much as I am an animal rights advocate and supporter, that is a little excessive in anyone’s book. There must be a discussion at national level and European level on the proportionate use of the European arrest warrant before we seek to expand it to other jurisdictions.

We must examine the procedure whereby when a state fails in its application for extradition, there has been a tendency for it to reissue applications long after the event. There must be some type of in-built mechanism to prevent states from seeking time and again to extradite the same person when an adjudication has been made that it should not take place. In other instances we have seen cases of other means being used to try to get a person extradited. We must also examine the risk involved to a person whose extradition has been sought if he or she goes on holidays to a jurisdiction where he or she could be exposed to the chance of being extradited more easily. These are important civil liberties issues which are not addressed in any way but are exposed under the existing arrangement.

It has been pointed out that there is no guarantee of legal representation in extradition cases for people in this country or in the country to where the extradition is sought. There must be an in-built mechanism in the legislation in that regard. The necessity to seek further information or proof is crucial. Nobody would be put on trial in this country in the absence of a proper arrest warrant, proper procedure and evidence. All of those are requirements in law and natural justice before a person would be brought to trial, but they are not required under the European arrest warrant procedures. If a country asks, we can extradite a person. We must ask where and on what basis a person is being extradited. We must examine the process. We can pinpoint [292]examples that might seem far-fetched but there have been cases where a person has been taken from one country to another on ridiculous grounds.

There are no considerations in the Bill for domestic law in the sense that something might be a crime abroad but is not one in this country and that people here would not consider it an offence. I refer, for example, to the crime that exists in Thailand of lèse majesté. Insulting the royal family is a crime there. There have been attempts to extradite people back to Thailand for that reason — luckily, not Irish people. Will it be possible to do so if we extend the provisions of the international arrest warrant? If a woman shows a bit too much flesh sunbathing in a country where it is unlawful to do that, would she face an arrest warrant? Perhaps it would even apply, for example, to the heinous crime of a woman driving a car in countries where that is unlawful. There have been ludicrous applications for extradition based on the existing European arrest warrant within the boundaries of Europe. Extending that to other countries would be very foolish without the necessary safeguards for which many human rights groups throughout Europe have campaigned. Why would one seek to transpose an extension of a measure that is already flawed? I urge the Minister to take these points on board before the Bill proceeds any further.

Deputy Mattie McGrath: Information on Mattie McGrath Zoom on Mattie McGrath According to the Minister, the main objective of the Bill is to apply the provisions of the European Arrest Warrant Act 2003 to states other than European Union member states. It also makes procedural and technical amendments to the 2003 Act and to the Extradition Acts 1965 to 2001, inclusive, and gives effect to Council Framework Decision 2009/299/JHA on the mutual recognition of judgments in the absence of defendants. I have always been of the view that the first duty of any state is to protect its citizens. The right to a fair trial is surely a fundamental right of any person in this State. This Bill, however, will potentially sacrifice the safeguards of due process for the sake of expediency. As a member of the legal profession, the Minister surely knows more than I about due process. However, it is clear to me that it is something to which each citizen of this State is entitled. In fairness, the rights of citizens are generally upheld in this country and, as such, I would urge the Minister to make haste slowly.

I am not sure where the rush is coming from to implement these provisions. The Minister has cited the need fundamentally to overhaul the provisions in this area, but I am concerned he may be using that as a cover to put his own flavour in a very serious way on this important legal and human rights issue. I hope he will heed advice to proceed with caution. When groups such as the Irish Council for Civil Liberties — I do not always agree with the views put forth by the council but it is a body everybody respects — Fair Trials International and many other non-governmental organisations are expressing serious concerns about this proposal, the Minister must be obliged to take those concerns on board. Representatives of the various groups should be invited to a meeting of the Oireachtas Committee on Justice, Defence and Equality to put forward their proposals for the Bill before it proceeds further. I urge the Minister not to guillotine the debate on the Bill. The Government’s record is poor in this regard, with almost 78% of all Bills introduced by it being subjected to the guillotine. This is far too serious an issue to be treated in that way. The legislation should not be brought further in the absence of a broad consensus that is sensible of the serious repercussions of proposals in this area and which takes account of the legal implications. We are all aware of cases where people have been extradited to various countries where they are locked up for years awaiting trial, may receive little or no legal representation, are given no access to interpreters and so on. It is a very lonely place in which to find oneself. Some people are extradited for offences they committed unknowingly. We must be 100% sure before we go down the road of extraditing our citizens to countries where they might encounter such treatment.

[293]I am entirely supportive of extradition in respect of serious crimes, where it is done legally. The equation of a common judicial space with common laws has untold merits in bolstering the capacity of law enforcement authorities to combat crime across international and EU borders. However, alarm bells must go off when one considers that the scope of this Bill is draconian in the extreme, a view held by a broad range of members of the Judiciary, legislators, academics and non-governmental organisations across Europe. Were their concerns taken into account in the drafting of the Bill? The Minister said he was dissatisfied with previous amendments to the law and has undertaken, in these proposals, to implement a fundamental change. However, I must question his motives. The Bill places far too high a degree of trust and good faith in the criminal justice systems and human rights standards of other countries. Any such act of faith cannot be taken lightly. We can only vouch for our own justice system and our own rules concerning trials, the preparation of a book of evidence, defence procedures and the right to legal representation. We can have absolutely no influence over what happens in other countries. To allow citizens of this State to be extradited to another country in the absence of a requirement for a solid case against them, in accordance with our own laws and procedures, would be very dangerous.

Under European arrest warrant law, local police are obliged to arrest a suspect without any evidence of a crime being presented. Surely that should be a no-go area, especially in respect of third party countries whose justice systems would not meet our standards. In this State the Office of the Director of Public Prosecutions may take a year or more before deciding whether to proceed with a prosecution. It is an understandable source of concern and frustration to complainants that there is no transparency in regard to these decisions. There is no way to know what is presented in evidence to the DPP other than on the hearsay of a Garda superintendent, for instance, or by some other type of leak. As such, it is very difficult to understand the DPP’s decisions and the rationale behind them. There are enough concerns about procedures within this State without adopting what is proposed in the legislation.

The Bill provides for a no-questions-asked approach to extradition and is, therefore, fundamentally flawed. A person can be picked up and handed over to the authorities of another country, without any tangible evidence of a criminal offence, for those authorities to do what they will. That cannot sit right with anybody. Citizens can be arrested and extradited for crimes they do not even know they have committed or for such minor offences as referred to by others. We might even be talking about an administrative error at a border crossing or an error on a passport. I have had cases where people have been held up unduly because of an incorrect spelling on their passport. That could happen to any of us or to any one of our family and friends.

  7 o’clock

The Bill must be pressure tested and there must be engagement with all of the groups that wish to have a say. The Minister cannot consult the Judiciary on such matters but, as I said, there have been comments by judges, legislators, academics and non-governmental organisations throughout Europe. We should allow representatives of these groups to present their concerns at the justice committee and to propose amendments to the Bill. We all recall the very high-profile case concerning Sean Garland, which went on for a long time before being resolved. I was never a supporter of Mr. Garland, but I signed the petition opposing his extradition because, first, he was a sick and elderly man and, moreover, there were no assurances as to what type of trial he would receive. There was a perception abroad that this individual was guilty and had to be proved innocent, the very opposite of the fundamental principle of our democracy that one is innocent until proven guilty.

In this country one can receive legal aid, or employ barristers if one can afford them, to fight to prove one’s innocence. It is much more difficult if one is extradited to a country where laws are not as fair as we understand them here and must try to prove oneself innocent of charges [294]as one is labelled guilty before ever coming to court. It is a serious matter. The no-questions-asked approach is a non-runner as far as I am concerned.

The subject of a warrant is prohibited from raising issues concerning what he or she is being accused of in the executing state, a situation which surely paves the way to injustice. We can question our warrants here and ensure they are right and proper. We do not know what kinds of warrant will come from states seeking extradition. There is a large number of such cases at present under the European arrest warrant system. There undoubtedly has been a rapid increase in the use of European arrest warrants, with a record 326 warrants received in this country in 2009, which obliged citizens of Ireland and other countries to try to clear their names abroad. In the same period there were 69 completed surrenders. That is a worrying figure. As has been mentioned previously, a report by the President of the Council of Ministers noted that European arrest warrants had been issued for such trivial offences as the possession of a tiny number of ecstasy tablets and the theft of a piglet, or a banbh, as I would call it. It is worrying that these are so trivial. This is not coming from me; it is from the President of the Council of Ministers. In such situations we certainly should sit up and think. Discussion at national and European level on the appropriate issuance of European arrest warrants is crucial. If that many were issued in 2009 — 326 — and 69 were allowed, it does not take a genius to conclude that not many are being allowed, but why are so many being issued and on what grounds? Why do we acquiesce to them, and why do we want to widen their scope? Why do we want to make it easier?

Significant details that are contained in the Bill presuppose the guilt of the requested person without the necessity to prove or produce evidence. We need tangible evidence, and for anyone to be tried in this country — or in the neighbouring jurisdictions — the DPP or similar body must be satisfied beyond reasonable doubt that crimes have been committed. We must be fairly sure that if the State decides to try somebody it has a reasonable chance of success. There is a presumption that laws were infringed or broken. I am worried about that.

The removal of double criminality as a feature of this legislation also gives rise to serious questions. Some of the offences under the European arrest warrant lists are readily identifiable as criminal offences and share common if not identical requirements for their commission throughout member states. Others are noticeably vague. A considerable number of such laws are the subject of debate, such as the offence of Holocaust denial in Germany, and there are disparities in the extent of crimes such as conspiracy in different countries. The use of language and people’s attitudes are vastly important in determining what constitutes a crime. Legal experts have argued that the Bill could result in requests for the surrender of persons for offences unknown in the country that receives the request, which would be unthinkable. This is skating on thin ice as far as I am concerned. It is totally at variance with the presumption of innocence until proven guilty, which we should be supporting.

The Minister says we need reform, which is probably true, but I question the rush to supersede all reforms that have already taken place in just a couple of amendments. Root and branch reform is required. I question what is behind this, who is driving it and from where it has come. There is no guarantee that the people we might allow to be extradited under this system, whether our citizens or others, will get a fair trial or due process. As Deputy Daly said, a person could be placed under such extreme pressure that he or she would admit to an offence that he or she did not commit simply to finish the ordeal and get home to his or her country. That would be most unsatisfactory, and would be a terrible ordeal through which to put a citizen of Ireland or any other country in the absence of a tangible reason for doing so.

I look forward to further debate on this. I hope the Minister will provide an opportunity for a broad discussion and allow the NGOs and organisations I mentioned, as well as legal [295]representatives and members of the Judiciary, to make their points. We must have balance at all times. There is no point in throwing the baby out with the bath water. I am concerned about this legislation. I thank you for your forbearance, a Cheann Comhairle, and look forward to more debate on this issue.

Deputy Bernard J. Durkan: Information on Bernard Durkan Zoom on Bernard Durkan I wish to share time with Deputies Connaughton and Heather Humphreys. I thank my colleagues for allowing me to go first, as I have to travel some distance to a meeting. In fact, I should be on the road now.

I welcome the Bill to the House. Like other speakers, I am concerned about ensuring that civil human rights are recognised and accorded in all situations appertaining to the execution of warrants, particularly when a person is being extradited from one jurisdiction to another. We have often seen instances in which the country where the alleged crime was committed had different attitudes from those that prevail here. It is important that we make absolutely certain this legislation is foolproof, so that anybody who falls within the remit of the Act receives his or her full entitlements in terms of natural justice, due process and recognition of his or her human rights. That applies in all instances.

An issue I have raised on numerous occasions in the House in recent years is that of organised crime and international criminal gangs. They are growing in stature and importance to such an extent that in some jurisdictions they challenge the power and authority of governments. We are in a worldwide community. We no longer live in our own little haven of peace and security. We are now subject to forces outside as well as within. Sometimes, there is an accord between the forces within and those outside, particularly on issues such as the drug trade, and there are all kinds of abhorrent abuses. It is essential that our legislation is as watertight as possible to ensure that in this jurisdiction we present the strongest possible and most robust defence against the elements of criminality. My reason for saying this is that everyone in the House knows of numerous examples of people who are living in the lap of luxury outside this jurisdiction having committed various heinous crimes within it. The number of such people is increasing. Similarly, there are probably people here, the crimes of whom we are not aware. The lesson to be learned is that whatever extradition agreements and arrangements we have, states inside and outside the European Union must expect reciprocal arrangements because there is no sense having in place an extradition arrangement unless it works in both directions and over as wide a geographic area as possible.

I do not need to illustrate the kinds of problems we have had in this jurisdiction in the past 20 years in regard to the illegal drugs trade and serious crime in general. While it is all very fine for us to wring our hands and tear out our hair over every set of circumstances that arises, we must ultimately decide what we think about these issues and what we believe should be done to address them. It is a question of whether we have the guts to address them.

The Bill contains references to remanding in custody. I presume that, in these cases, the prisoner is always remanded in custody. The bail laws in this country are being flouted left, right and centre. It is utterly appalling to witness what has occurred in recent years. Prisoners on bail have reoffended not only once but twice. Even after having been prosecuted for re-offending, they offend. The circumstances are laughable.

There has been a degeneration of respect for law and authority. Criminals before the courts regularly give two fingers to the cameras and show contempt and disdain for everything for which the State stands and for the people who represent it. It is sad to see this. How often have we seen prisoners who are being photographed outside court offering two fingers to the cameras? This is the best they have to offer. They are giving two fingers not only to the cameras but also to the State and law-abiding citizens. While I, like everybody else, am most anxious that due process take place and that people’s human rights be recognised and provided for, I [296]believe we must consider closely how we deal with these circumstances. Unfortunately, we seem to have developed a laissez-faire attitude to crime in general. This evolves with the passage of time.

Since I first became a Member of this House, there have been quite considerable grounds for individuals, including those who might look forward to a life of crime, concluding that crime pays after all, that it is not a bad idea and that everybody should become involved. I do not want to go down the road that many might expect me to go down in the climate in which we live; suffice it to say there is a considerable body of opinion in the country that suggests some of those who have sought refuge outside this jurisdiction might well have a case to answer. It is believed that, while due process should prevail, those people have a case to answer none the less.

The Bill repeals certain aspects of the 2003 Act, thus illustrating how quickly legislation can become dated. Some Acts are more than 100 years old while others are found to be deficient in the space of two or three years and do not work as intended. Legislation should not become deficient so quickly in most circumstances.

The Bill states:

A new section 15(5A) is inserted which provides that the person must be surrendered to the issuing state concerned not later than 10 days after the new date fixed, or else discharged. This provision is also intended to reflect more closely the provisions of the Framework Decision.

I can well understand this provision. It prevents the State from abusing the system technically in order to achieve a particular result. I have no difficulty with that.

Section 14 states:

The following is substituted for section 21 of the Act of 2003:

“21.—(1) The Minister may direct that a person remanded in custody under this Act or detained in a prison or remand institution pursuant to an order under subsection (1) or (2) of section 15 or (1) or (2) of section 16 be removed to a hospital or any other place if the Minister considers that in the interests of the person’s health [...]”

I presume this implies the Minister must have regard to medical opinion. My comments are not at all a reflection on the present Minister or any other. In the future, a Minister might, at a whim, decide a person should be transferred to a hospital, whence he might manage to escape. We need good solid grounds for decisions and to have professional information and backup to justify decisions.

This is the kind of legislation about which one could talk for much longer than five or ten minutes. I am sure my colleagues are saying the same thing and hope I will sit down soon.

Deputy Paul J. Connaughton: Information on Paul Connaughton Zoom on Paul Connaughton I thank the Ceann Comhairle for the opportunity to speak on this very important Bill. In recent years, we have heard much talk about the impact of globalisation on world commerce, finance and food production. However, the phenomenon of globalisation is also very pertinent in the world of crime. Recent weeks have seen a number of high-profile cases involving jewellery theft and Internet fraud. Irish people deserve to be protected from unscrupulous criminals irrespective of where they operate.

I welcome a number of the Bill’s provisions in particular. The Bill gives effect in Irish law to an agreement between the European Union and both Norway and Iceland, and it contains [297]significant technical amendments on the European Arrest Warrant Act 2003 and the extradition Acts. The technical amendments contained in the Bill give welcome clarity regarding procedures involved in both the procurement and enforcement of an arrest warrant and extradition procedures. For example, the requirement that a court must be satisfied that a person sought is not in the State is being removed, making it easier for Ireland to issue warrants on future dates. The Bill refers to judgments in abstentia and the conditions that must be met when the court is considering a request for surrender where a person was tried in his or her absence.

A rise in the incidence of international crime, such as Internet crime, results in the need for greater clarity on the extradition legislation. Methods need to be updated, including to take cognisance of modern methods of document transmission.

I welcome the power for An Garda Síochána to take fingerprints and palm prints, and to photograph a person’s arrest under the Act. Amendments to this Bill also provide, for the first time, for the admission in evidence without further proof of material in this regard if it is received from a country requesting extradition.

In recent days, there has been some media coverage of the prospect of a cashless society. While it is anticipated that this would make certain crimes, such as bank robberies, less attractive, it may change the way such robberies are carried out, with greater emphasis being placed on moving sums of money online and introducing heretofore unimagined access to money. Apart from reducing the opportunities for such crimes, we, as legislators, must ensure anybody involved in crime, be it online or on the street, will face the full rigour of the law. We must strive to ensure every possible barrier to law enforcement is removed.

It is worth noting that, at a time when much of the commentary in Ireland surrounding Europe appears to be negative and highlights the strictures that EU membership brings, EU law enforcement is one of the major benefits of the painstaking process of capacity building within the Union. Imagine a scenario in which international agreements were not in place or in which Ireland had to negotiate arrests and extraditions with other countries on an individual basis, as opposed to enjoying the fruits of the labours of its fellow members in the Union. Such scenarios would offer huge benefits to the international criminal as Irish police would have neither the capacity nor the resources necessary to conduct an international trawl for mobile criminals crossing jurisdictions and language barriers. EU membership brings with it significant benefits, just one of which is the ability of police forces across the Continent to work under shared international agreements with a view to thwarting the efforts of imaginative and innovative criminals.

I welcome the provisions of the Bill, which are timely and sensible and which make the job of law enforcement easier, be it through the enforcement of arrest warrants or a more streamlined extradition process.

Deputy Heather Humphreys: Information on Heather Humphreys Zoom on Heather Humphreys I welcome the opportunity to speak on the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Bill 2011. The objective of the Bill is to apply the European Arrest Warrant Act 2003 to states other than EU member states. Since its enactment, the European Arrest Warrant Act has allowed for a more efficient method for extradition, as formal extradition procedures were replaced with a system of surrender, based on mutual recognition and respect for the judicial decisions of fellow member states. It is important that there is a level of mutual respect among member states for the laws of neighbouring countries. We have free movement of goods and people in the EU. It is, therefore, important that our laws also reflect the common objective that if a person commits a crime he or she should be punished accordingly and without delay. In this regard the introduction of the European Arrest Warrant, EAW, was a welcome development. The European arrest warrant is a standard form which can be sent directly from one [298]judicial authority to another requesting the arrest and surrender of a person in order that he or she can be prosecuted or jailed. This procedure is in operation in all member states and should a state receive a request for the surrender of a person, that request must be complied with. This ensures there is a sense of certainty in regard to extradition matters. As we are aware, the extradition of a person can be often a complicated, divisive and time consuming process. While I fully accept that every person must have the right to due process, it is incumbent on us all to ensure those who break the law are not allowed to use legal loopholes and technicalities to avoid punishment.

I commend the Minister on bringing forward the Bill as a matter of urgency as it will amend section 15 of the Extradition Act 1965 whereby extradition will not be granted where the offence for which it is requested is regarded, under the law of the State, as having been committed in the State. This provision has been at the centre of a high profile case in recent years and it is important that clarity is brought to the issue to ensure there is no ambiguity should any similar cases arise. Ireland cannot be seen to protect criminals due to outdated legislation. To allow such a situation to continue would cause damage to our reputation internationally.

That the Minister has stated there will be a fundamental review of all the legislation is welcome. I ask him to review the fact that all cases for extradition must be heard in the High Court. Originally the Extradition Act 1965 provided that the District Court would be the court of first instance in extradition cases. This was changed by the Extradition European Union Conventions Act 2001 which provided that all extradition hearings were to be heard before the High Court. At the time the following explanation was given:

All extradition proceedings are being moved to the High Court. This is a change from the present law where the initial application for the extradition of persons from the State is made to the District Court. Since nearly all extradition cases end up in the High Court, in any event, it is considered that the consolidation of all extradition proceedings in the High Court would provide for a more efficient and expeditious hearing of such cases. Since 1994, all bail applications in extradition cases must be taken in the High Court.

According to section 9 of the European Arrest Warrant Act, the High Court became the executing judicial authority in Ireland for the purpose of Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between member states. The Framework decision does not specify a particular court of judicial authority in respect of European arrest warrants, rather it states that, “The issuing judicial authority shall be the judicial authority of the issuing member state which is competent to issue a European arrest warrant by virtue of the law of that state.” As I have outlined, this is currently the High Court.

At the time the legislation was changed the majority of cases were politically based extradition cases on foot of requests from Northern Ireland and Great Britain and nearly all of them were subject to a judicial review. Given that we have peace on the island and circumstances have, thankfully, changed and there are few politically based extradition requests from Northern Ireland and Great Britain, I ask the Minister to consider amending the legislation in order that the District Court could, once again, could deal with extradition cases, except in a point of exceptional public importance where it could be referred to the High Court. It would mean considerable cost savings for the Exchequer if extradition cases could be dealt with in the District Court. It would also mean these cases could be dealt with more quickly and efficiently.

I commend the Minister on the efficient manner in which he has brought forward this technical and complicated legislation.

[299]Deputy Thomas Pringle: Information on Thomas Pringle Zoom on Thomas Pringle I welcome the opportunity to contribute to the European Arrest Warrant (Applications to Third Countries and Amendment) and Extradition (Amendment) Bill 2011. I note from the Minister’s contribution that this is not the end of the process and that he is initiating a comprehensive review of the European arrest warrant legislation to ensure it is streamlined for the legal practitioners and the subjects of the European arrest warrants. I note the review will take some time and that the legislation probably will be amended, following the review, at a later date.

As many Members have said, the Bill is technical and it is difficult to assess its implications. An important factor that must be taken into account is the rights of the subjects of the European arrest warrants to ensure those rights are protected and that they receive due process.

In researching the issue, it appears that what may not be an offence in Ireland under Irish law could be an offence in another member state under French, Dutch or German law and that an application can be made for an arrest warrant for an offence committed in Ireland. That is a provision about which I am concerned as it could impinge on the rights of people resident here if that process was allowed to proceed. If something happened in Ireland that was deemed to be an offence in France, an application could be made for an extradition warrant to have a person extradited to France to face trial on that issue. A high profile case fed into the reasons the legislation is being amended, where the Director of Public Prosecutions and the Garda decided not to proceed with a case against a person and that prevented his or her extradition under a European arrest warrant to face trial in another jurisdiction. I am concerned about the implications of that and hope to tease it out further on Committee Stage because it is important for the rights of people who may be subject to an extradition warrant.

An important aspect of the Bill is that it provides for an extension of European arrest warrants to third countries. I note it is intended to apply to countries with which there are agreements, such as Australia and the US. Where a particular crime may not be a crime in Ireland but may have been committed in Ireland by a person from another jurisdiction where it is a crime, I would be concerned about the implications and the potential to move people to those jurisdictions on foot of European arrest warrants. That issue needs to be examined carefully.

As the review of the legislation will continue, it is likely that further amending legislation will be brought forward. I note from the Minister’s contribution that he will table a number of amendments on Committee Stage. It will be important to discuss what might be the implications of those amendments.

Debate adjourned.

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