Conor Lenihan (Dublin South West, Fianna Fail)

Seanad amendment No. 35 provides for the insertion of a new section 72 in the Bill which in turn replaces the existing section 42 of the European Arrest Warrant Act 2003. Section 42 of that Act sets out one of the grounds for refusal to surrender a wanted person. It provides that a person shall not be surrendered while the Director of Public Prosecutions or the Attorney General are considering a prosecution for any offence or where proceedings have been brought in the State in respect of the offence set out in the European Arrest Warrant. Neither of those grounds is being changed.

However, the DPP has sought a review of section 42(c) which provides that where there is a decision to enter a nolle prosequi or a decision not to bring proceedings in respect of the offence in the European arrest warrant, the person may not be surrendered. The DPP is concerned that section 42(c) as currently set out could have undesirable results. He has pointed out that a number of circumstances can arise where the decision not to proceed here or to terminate proceedings is taken because of insufficient evidence or witnesses in this jurisdiction. Under the existing provision such a decision would mean that a wanted person would not be surrendered for the offence in question and that the person would as a result evade justice even though there is adequate evidence and witnesses available in another member state. There is no good reason in principle why this should be so. The present provision also creates a difficulty if a decision were taken not to prosecute here because of the lack of evidence without any knowledge at that time that the evidence was or might be available in some other jurisdiction.

It might be useful to refer to some examples of the type of situation the DPP had in mind when he requested a review of this provision. Offences relating to sex tourism or trafficking in persons are among the most notable examples of what the DPP is concerned about. Offences relating to torture or war crimes or similar offences arising under international conventions also apply. In such cases Ireland may have jurisdiction to try the offence but the best evidence and witnesses may be elsewhere. We must not prevent the effective prosecution of such offences. The present amendment will ensure that a potential barrier to effective prosecutions is removed. It relates to lack of witnesses or evidence here that may be available in another jurisdiction.

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