Michael McDowell (Dublin South East, Progressive Democrats)

I fully empathise with the Deputy's concern that this amendment be fully understood before we accept it. If a European arrest warrant is issued in respect of Joe or Josephine Soap and is delivered to the Irish State for the purpose of having it executed against him or her while he or she is in Ireland, the issue that then arises is whether the requesting state intends to comply with its obligations under the legislation. One such obligation concerns the rule of specialty. This provides that if extradition is sought in respect of Joe or Josephine Soap, on a charge of car stealing, for example, the requesting state cannot contend that it wants to try him or her for further named offences.

Subject to statutory exceptions, which are provided for in the legislation, there is an obligation on the requesting state to comply with the rule of speciality, which is a principle of extradition law and also applies to rendition on warrants. If one left it up to a High Court judge in the Four Courts to decide whether the Polish or French states, for example, would comply with this obligation, the judge would have to ask how he could determine this, given that the person before the court had raised the matter as a substantial issue. Should the Polish or French ambassadors give an undertaking that their countries would comply? Should we have a debate in the House on whether Poland or France had breached the rule of specialty in the past? Should the prosecuting policeman, juge d'instruction or examining magistrate be brought before the court to promise faithfully that the rule would be applied?

This legislation is to produce a workable system. Deputy Jim O'Keeffe asked what standard of proof is required.If someone could raise a substantial point and say he or she has a plausible case, that he or she is being sought on a charge of stealing a car but that the real motive was a charge of treason or whatever, that would rebut the presumption that Poland, France or wherever, was compliant with its obligations under international law. It is impossible for me to say what would amount to sufficient evidence in each such case. Leaving this blank, however, would allow a judge take the view that unless there was a mountain of evidence that the requesting state had never breached this rule before, he or she would not grant an extradition. That would put the State in an impossible position vis-À-vis our colleague states in the European Union.

Section 37 of the European Arrest Warrant Act states:

1) A person shall not be surrendered under this Act if:

(a) his or her surrender would be incompatible with the State's obligations under:

(i) the Convention, or

(ii) the Protocols to the Convention,

(b) his or her surrender would constitute a contravention of any provision of the Constitution [This would apply if somebody was going to be treated brutally or]

(c) there are reasonable grounds for believing that:

(i) the European arrest warrant was issued in respect of the person for the purposes of facilitating his or her prosecution or punishment in the issuing state for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation, or

(ii) in the prosecution or punishment of the person in the issuing state, he or she will be treated less favourably than a person who:

(I) is not his or her sex, race, religion, nationality or ethnic origin,

(II) does not hold the same political opinions as him or her,

(III) speaks a different language than he or she does, or

(IV) does not have the same sexual orientation as he or she does

or

(iii) were the person to be surrendered to the issuing state:

(I) he or she would be sentenced to death, or a death sentence imposed on him or her would be carried out, or

(II) he or she would be tortured or subjected to other inhuman or degrading treatment.

That is a prohibition in the Act. Since the European Convention on Human Rights Act came into law, in addition to these explicit obligations there is a requirement that a court interpret this Act, and this Act as amended, in accordance with the European Convention on Human Rights. Adequate rebuttal of a presumption must be proportionate to the case. If someone is in a foreign country it may be very difficult to prove every comma of an intention to breach some obligation.

The courts will interpret this in a sensible way. If a case indicated a substantial reason to apprehend that the obligations of the requesting state were likely to be breached, the court would deem that sufficient rebuttal to require further material from the requesting state. We cannot have a situation in which someone presents a tick box form saying he or she wants evidence proving 25 propositions about the French legal system leaving the court in the position that it will not order an extradition unless the French Government moves half of some department of state to Dublin to prove how its system works.

The purpose of this amendment is to make clear that one cannot raise an issue by raising a flag on it. One must give it substantial force before the courts intervene and require further material from the requesting state.

See this speech in context