Michael McDowell (Dublin South East, Progressive Democrats)

Where an offence specified in the European arrest warrant corresponds to an offence in Ireland the dual criminality requirement is considered to be met. This requirement arises for all offences other than those on what is termed the positive list which is set out in Article 2.2 of the framework decision. In that case the dual criminality requirement does not apply.

The amendment provides a specified point in time by reference to which correspondence of offences under Irish law and the law of the issuing state is to be established. That is, it provides that the correspondence is to be established by reference to the position on the date of the European arrest warrant. This amendment clarifies the law on the matter. If somebody raises the question of whether an offence is a corresponding one the requesting state need only prove there was correspondence at the time the arrest warrant was issued. There is no ongoing target which requires us to prove what happened to the law in the meantime. Based on this amendment, correspondence for arrest warrant purposes occurs where the offence in the warrant is an offence under the law of both the issuing state and of Ireland on the date of the issue of the European arrest warrant. Establishing the date of issue is a simple matter. One can just check the date on the warrant without additional evidential proofs.

There are two broad approaches to establishing the point at which correspondence occurs. The first approach would be that the correspondence can be established where the act is an offence under the law of both states on the date of commission of the act. However, that approach may facilitate persons evading justice for offences under international agreements, such as torture, sex tourism, trafficking, etc. The second Pinochet ruling in the House of Lords demonstrated this approach. If, as in that instance, both states had not implemented the relevant agreement at the time of the alleged offence, then correspondence could not be said to exist as the act in question was not an offence under the law of one of the parties on the date of the commission.

The second approach is to take the view that the correspondence should be established by reference to the position at the time of issue or receipt of the request. That is the approach under our extradition law since 2001 and is the basis for the amendment to ensure that principle applies in European arrest warrant cases. This approach to correspondence represents the best public policy option if it will prevent the kind of abuse to which I have referred where a person evades justice merely because the two states involved ratify the relevant agreements at different times. Under the amendment, all that is required is that both states would have done so at the time the warrant is issued. This line of thinking reflects the first House of Lords decision in the Pinochet case.

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