Michael McDowell (Dublin South East, Progressive Democrats)

This amendment amends section 68 of the terrorist offences Bill and its purpose is to amend section 21A — which was inserted in the Dáil — of the European Arrest Warrant Act 2003. This is an amendment to an amendment this House made.

Section 21A deals with the question of ensuring that persons are not surrendered for the purpose of investigation and it provides that the High Court shall refuse to make a surrender order if it is satisfied in the case of a person who has not yet been convicted that a decision has not been made to charge the person with and to try him or her for the offence concerned.

The revised section 21A allows the arrested person to raise a question about the intentions of the issuing state, in this case about its intention to proceed with a prosecution so that it is a matter for the High Court to adjudicate on the substantive hearing of the case. However, this amendment adds a presumption that there has been compliance by the member state with the terms of the framework decision unless the contrary is proved by the party making the claim of non-compliance. In other words, the complainant will have to do more than merely claim that there has been a failure by the issuing state to comply with the framework decision. The complainant will have to overcome the presumption before the court can examine the claim of non-compliance.

The presumption of compliance provision takes account of the mutual recognition concept which is at the heart of the European arrest warrant system. It represents an assumption that we are entitled to make about our closest partners, that is, that they are acting in a bona fide manner in operating the framework decision. It also clarifies the threshold that needs to be met before further information will have been sought from the issuing state. If a person is sought in Ireland on a European arrest warrant, the person cannot simply say that this could be for the purpose of getting him or her to Spain to question him or her only and not for the purpose of a trail, and that by simply raising the issue the Irish court will be obliged to tease out that issue to the nth degree.

As I mentioned in regard to the rule of specialty and other obligations, the person accused would have to raise some substantial reason with some weight as to why the court should commence an investigation on that issue, otherwise the court should presume that, for example, the Spaniards know what we expect of them and what the European law expects of them and, therefore, there is some substance and weight to the point before the court is required to conduct an inquiry.

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