Thursday, 8 June 2006
Criminal Justice (Mutual Assistance) Bill 2005 [Seanad]: Second Stage.
Batt O'Keeffe (Minister of State with special responsibility for Housing, Urban Renewal and Developing Areas, Department of Environment, Heritage and Local Government; Cork South Central, Fianna Fail)
I move: "That the Bill be now read a Second Time."
The Criminal Justice (Mutual Assistance) Bill 2005 is a significant legislative proposal. It gives effect to seven international instruments, which build on and supplement the existing legislative framework for the provision of mutual legal assistance. Part VII of the Criminal Justice Act 1994, which deals with international co-operation in the context of mutual legal assistance, is being repealed and its terms re-enacted with amendments and additions to take account of operational experience gleaned over the past ten or so years and to take account of the provisions in the instruments to which effect is given in the Bill.
Mutual legal assistance, in simple terms, enables one state to provide, within its jurisdiction, a service to another state related to the administration of justice in the latter. The type of assistance may concern such matters as the investigation of serious international crime, including the gathering of evidence for use abroad or the service of documents issued by a judicial authority.
The seven instruments to which this Bill gives effect are the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union agreed at Brussels on 29 May 2000, which develops and modernises existing provisions governing mutual assistance between member states of the EU, and the protocol to that convention done at Luxembourg on 16 October 2001; the agreement between the EU and the Republic of Iceland and the Kingdom of Norway; the EU Council framework decision of 22 July 2003 on the execution in the European Union of orders freezing property or evidence; the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, which improves and supplements the provisions of the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters; the necessary provisions to give effect to articles 49 and 51 of the convention signed in Schengen on 19 June 1990, implementing the Schengen Agreement of 14 June 1985; and the mutual legal assistance aspects of the Council decision concerning the signature of an agreement between the European Union and the United States of America on Extradition and Mutual Legal Assistance, done at Brussels on 6 June 2003.
I take this opportunity to advise the House that some amendments will be brought forward on Committee Stage to give effect to the aspects of the mutual legal assistance provisions in the UN Convention against Corruption and the UN Convention against Transnational Organised Crime, which the Attorney General has advised require legislative amendment. The range of issues which require legislative amendment arising from the mutual legal assistance provisions in these conventions is limited.
Turning to the Bill, Part 1, which encompasses sections 1 to 10, defines key terms used in the Bill and sets out the restrictions to apply to providing mutual legal assistance. Mutual legal assistance will be refused where granting such assistance might prejudice the sovereignty, security or other interests of the State, or where there are grounds for believing that the request was made to prosecute or punish a person on the grounds of sex, religion, race, nationality, ethnic origin, political opinion or sexual orientation. A request shall also be refused if it appears that providing assistance might result in the person being subjected to torture or if it would contravene the European Convention on Human Rights.
Section 5 gives direct effect to articles 4 and 6 of the 2000 convention and articles 4 and 8 of the second additional protocol. These articles lay down the formalities and procedures to be followed when requests are being transmitted and executed and deal with channels of communication. Provision is also made in this Part for the designation of states for the purposes of the Act and for the designation of a central authority in the state.
Article 7 of the 2000 convention and article 11 of the second additional protocol, dealing with the spontaneous exchange of information on criminal matters without the need to receive a request beforehand, are given effect in section 9. Section 10 repeals the listed provisions of other Acts.
Sections 11 to 20, which comprise Part 2 of the Bill, provide a basis for dealing with requests for financial information for criminal investigation purposes, including the monitoring of bank accounts and obtaining information on such accounts. This Part gives effect to the provisions of the 2001 protocol and enables Ireland to give effect to article 4 of the EU-US agreement on mutual legal assistance, which deals with identification of bank information.
Section 11 was amended on Committee Stage in the other House. In light of further discussions with the Irish Bankers Federation and the Garda Síochána following publication of the Bill, the use of the phrase "reasonable time" for compliance with account orders was removed and the definition of account information order was amended to clarify timescales for compliance. This section has also been amended to ensure that variations on a person's name will be included in an order as it would be unfair to expect a financial institution to be aware of variants of a name.
Procedures for obtaining an account information or account monitoring order are set out in section 12. Such an order may be made only by a judge of the District Court who must be satisfied that an offence has been committed or that the person concerned has assets deriving from criminal conduct and that there are reasonable grounds for believing that the specified financial institution has information that is required in the investigation. Provision is also made in this Part for Ireland to request information on banking transactions from another state.
Section 12(6) was inserted on Committee Stage in the other House. The amendment allows for an account information or monitoring order to be modified by narrowing the information sought to that which, further on in an investigation, is considered to be specifically relevant to the investigation. In sections 14 to 16, provision is made for a request to be received from another state for information on financial transactions.
On receipt of such a request, the Minister may authorise an application to be made to a judge for an account information or account monitoring order. The procedures to be followed and the information required for such an order to be made are laid out in section 16. The Part also provides for transmission of the information to the requesting state and that non-compliance with an account information or account monitoring order is an offence.
Part 3, comprising sections 21 to 29, deals with the interception of telecommunications messages between member states of the EU for criminal investigation purposes, which is provided for in Articles 17 to 22 of the 2000 convention. Section 22 of the Bill sets out the circumstances in which Ireland may request the assistance of another member state in intercepting telecommunications messages. Such a request can be made only where the Minister for Justice, Equality and Law Reform has given an authorisation for interception under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993.
The person whose messages are to be intercepted must be present in Ireland or in a member state and the technical assistance of a member state must be necessary to intercept. The information to be transmitted when a request is being made is also set out. In addition, the Part provides for Ireland to receive requests for interception from other member states in certain circumstances and lays out the procedures to be followed when such requests are received.
Section 24 provides, inter alia, that if the person whose messages are to be intercepted is physically in the State, the Minister may authorise interception only on foot of a request from a member state if the conduct under investigation would constitute a serious offence within the meaning of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and would justify the making of an interception authorisation. The section also sets out conditions which may be applied and deals with the transmission of the messages to the requesting state.
Sections 25 and 26 of this Part deal with interception where the technical assistance of another member state is not required to carry out the interception. Where the Minister has authorised an interception, the telecommunications address of the person is in another member state and the assistance of that state is not required to intercept, section 25 provides that the Minister will notify the member state that the person concerned is on its territory.
The member state concerned may consent or not to the interception. Interception may continue while that decision is being made, but any information obtained from interception prior to consent being given may not be used unless agreed with the other member state or for the purpose of preventing an immediate and serious threat to public security.
Section 26 applies the same provisions to the situation where another member state does not need our assistance to intercept messages, but the telecommunications address of the person concerned is in this State. Under such circumstances, the Minister shall be informed and must decide whether to allow the interception. The section provides that interception shall not be allowed if it would not be possible in a similar domestic context.
Section 27 provides an obligation for an authorised undertaking, in other words, a telecommunications company or service provider, to facilitate interception where the person is present in the State, authorisation has been given for interception but the messages cannot be directly intercepted in the State. In such circumstances, if the telecommunications provider can access equipment in another member state to facilitate interception, it shall do so. Where a telecommunications provider here has equipment to facilitate interception, the person concerned is in another member state and the messages cannot be intercepted directly from that state, but the telecommunications provider here can assist that state in interception, the provider is obliged to facilitate the interception. A new section 28 was added on Report Stage in the Seanad to allow for a review of the interception provisions in this Bill by a judge of the High Court, as is provided for in section 8 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993.
The amendment also extends to this Bill section 9 of the 1993 Act, which provides for a complaints referee, who will be a Circuit or District Court judge or a barrister or solicitor of ten years' standing appointed by the Taoiseach. He or she may review complaints from individuals regarding certain aspects of the Act. The oversight envisaged under sections 8 and 9 will not, either implicitly or explicitly, allow the designated judge to enjoy any degree of extra-territoriality. In other words, the oversight role would be confined to the decisions and actions taken domestically, by the Minister or the Garda, for example, and would not extend to non-national decision-making. Section 29 amends the Postal and Telecommunications Services Act 1983 by providing for fines for non-compliance.
Part 4, comprising sections 30 to 39, gives effect to the terms of the Council framework decision on the execution in the EU of orders freezing property or evidence. Section 31 sets out procedures to be adhered to when an order is made to prevent the destruction, disposal or transfer of property that could be evidence in an ongoing criminal investigation. Sections 32 and 33 give effect to Articles 4 and 9 of the framework decision.
Section 32 provides for a freezing order and for the standard certificate, provided for under article 9 of the framework decision, to be transmitted to a member state for enforcement and sets out the procedures for so doing. Section 33 sets out provisions for transmitting a freezing order and certificate to Ireland from another state. The procedures to be followed when we receive such a request and provisions for the making of a freezing co-operation order by the High Court to execute the external order are set out in section 34.
The remainder of this Part deals with the length of time a freezing co-operation order may remain in force, its variation and termination, amendment or postponement, and the conditions under which the making of a freezing co-operation order may be refused. Article 10 of the framework decision, dealing with the treatment of frozen property, is given effect to in section 39.
Part 5, comprising sections 40 to 46, deals with orders for the confiscation and forfeiture of property. Under section 41, Ireland may make a request to a designated state for confiscation of property if a confiscation order has been made here. Provision is made in sections 42 and 43 for a designated state to transmit a confiscation order to this State and for a confiscation co-operation order to be made to execute the external order. A confiscation co-operation order can only be made on foot of an application to the High Court and the Minister must consent to such an application. Provision is also made for any person claiming to own or hold an interest in the property to make representations as to why the confiscation order should not be made.
Sections 44 to 46 deal with forfeiture orders, both in a designated state and here. The information necessary when a forfeiture order is sent here by another state is laid out and the procedures to be followed for the execution of an external forfeiture order are in place. Again, an application for a forfeiture co-operation order may be made, with the Minister's consent, to the High Court. Provision is made for any person claiming to own or hold an interest in the property to make representations and for the disposal of the property for the benefit of the Exchequer once a forfeiture co-operation order has been executed. This Part updates the provisions for confiscation and forfeiture orders in the Criminal Justice Act 1994.
Part 6 of the Bill, incorporating sections 47 to 65, deals with the taking of evidence. Section 48 is based on provisions in section 52 of the Criminal Justice Act 1994 and sets out procedures for obtaining a statement of evidence from a person in a designated state for use in criminal proceedings. Provision is made in section 49 of the Bill, based on section 51 of the Criminal Justice Act 1994, for evidence to be taken on request from a witness here and used in criminal proceedings abroad. This Part also deals with the privilege of witnesses and makes it clear that a person cannot be compelled to give evidence to assist in a criminal case abroad where he or she could not be compelled to give evidence in criminal investigations here or in the state concerned. If a claim for privilege is upheld, any evidence taken from a person cannot be sent to the requesting state.
Sections 51 and 52 deal with the transfer of prisoners to and from Ireland for the purpose of giving evidence or assisting in criminal investigations. These provisions are broadly based on those in sections 53 and 54 of the Criminal Justice Act 1994. They have been amended to take into account Article 9 of the 2000 convention and Article 13 of the second additional protocol.
Sections 53 to 58 provide for evidence to be given by means of a television or telephone link. They give effect to Articles 10 and 11 of the 2000 convention and similar provisions in Articles 9 and 10 of the second additional protocol. Under section 53, where a witness is in a designated state and it is not desirable or possible for a witness to give evidence in person here in Ireland, a letter of request for the person to give evidence by means of a television link may be issued by a judge.
Sections 54 to 56 provide for a request to be made to this State for a witness to give evidence abroad by means of television link and for the Minister to request the president of the District Court to nominate a judge to summon the witness to attend for the purpose of giving evidence. Section 56 lays out the procedure for taking the evidence and provides, among other things, that the evidence must be given in compliance with the laws of the requesting state in so far as they are compatible with the fundamental principles of law in this country. The evidence may also be taken in private. Sections 57 and 58 provide for a request to be made for a witness present in the State to give evidence by telephone in criminal proceedings in another country and lay down the procedures to be followed in such cases.
Part 6 also deals with procedures for searches for evidence and makes provision for a request to be made to another state for evidence. The provisions are based on sections 52 and 55 of the Criminal Justice Act 1994. Section 60 deals with requests from other states for evidence to be obtained here for use in criminal proceedings or investigations in the requesting state. Such requests can only be dealt with where a search power exists under domestic law for the offence concerned. Searches for evidence on foot of such a request are limited to cases where the offence concerned is punishable under both our law and that of the requesting state by at least six months' imprisonment or cases where the offence is punishable under Irish law by at least six months' imprisonment and is being prosecuted in the requesting state by administrative authorities whose decision may give rise to criminal proceedings. The procedures to be followed when a request for evidence is received are set out in sections 60 and 61, as are the requirements which must be met for a judge to issue a domestic search warrant in order for a request to be executed.
Chapter 2 of Part 6 of the Act lays down provisions relating to the obtaining of identification evidence for use within and outside the State. Section 65 sets out the procedures to be followed when a request to obtain identification evidence is received and provides that identification evidence may be taken from a person only with consent if it is not already in the possession of gardaí. Intimate bodily samples may only be taken by a doctor and dental impressions by a doctor or dentist. Provision is also made for the destruction of identification evidence. This Part is included at the request of the Office of the Attorney General following a court case where, due to a legal lacuna, the State was unable to assist another state with the provision of identification evidence. It extends the legal provision for the taking of types of identification evidence to bring Ireland's legal provisions in such cases in line with those of other states.
Part 7, which contains sections 66 to 77, covers the procedures for serving documents within and outside the State and provides for the restitution of property to its rightful owner. Sections 66 to 68 deal with the service of documents and are based on sections 49 and 50 of the Criminal Justice Act 1994. They have been amended for the purpose of giving effect to Article 5 of the 2000 convention and Article 16 of the second additional protocol. These sections provide that documents issued by a court in this country in the context of criminal proceedings may be served on a person present in another state and that similar documents from another state may be served on a person in this country. The main change to the existing provisions is to provide for service by post.
Chapter 2 of this Part, which contains sections 69 to 73, dealing with the restitution of stolen property gives effect to Article 8 of the 2000 convention and Article 12 of the second additional protocol. This chapter allows for an order to be made in the State for the restitution of property situated in another state. Likewise, another state may request Ireland to place property in the State obtained by criminal means at the disposal of the requesting authority. The procedures to be followed on receipt of a request are set out. Following receipt of an application for restitution, the District Court may make an order for the property concerned to be delivered to the Garda. Provision is made for a person claiming to own or have an interest in the property to make representations as to why the order for restitution should not be made.
Chapter 3 of Part 7 of the Bill provides for controlled deliveries for criminal investigation purposes and gives effect to Article 12 of the 2000 convention and Article 18 of the second additional protocol. Provision is made for a request to be made to a designated state to allow a controlled delivery to be made in that state and for specified persons, including members of the Garda Síochána and Customs and Excise officers, to take part in the controlled delivery. Other states may also request that a controlled delivery take place here and for persons from that state to take part in it. Any controlled delivery made in this country will, however, only be made under the direct control of either the Garda Síochána or Customs and Excise officers, as appropriate.
Part 8, which contains sections 78 and 79, gives effect to the Ireland-US treaty on mutual assistance, as amended by the EU-US agreement on mutual assistance.
Part 9, which contains sections 80 to 89, inclusive, deals with a range of miscellaneous issues. It amends section 9 of the Criminal Justice (Joint Investigation Teams) Act 2004 to allow participants from third states that have been designated for mutual assistance purposes to become involved in joint investigation teams in this country if the competent authority of the country that established the team with Ireland so agrees. This will remove the need for orders to be made and laid before the Oireachtas every time this issue arises in respect of a particular joint investigation team. The amendment will not in any way change the role of participants in such teams, which is primarily intended to be of a supportive or advisory nature unless the states which established the team agree otherwise. Some of the other miscellaneous provisions in this part include the section that provides for penalties in the case of disclosure prejudicing an investigation, the provision of liability of the officers of a corporate body and data protection provisions.
Section 87 was amended on Committee Stage in the Seanad to allow for regulations to be made to give effect to international instruments. This section was included on the advice of the Attorney General following recent judgments in two Supreme Court cases in which it was found that regulations giving effect to EU law and policy obligations were ultra vires the parent Act if made under a standard regulation-making provision in that Act. As the Bill before the House gives effect to seven international instruments, it is important that the regulation-making provision encompasses the power to give effect to international and EU law.
This legislation will assist in enhancing existing mutual assistance provisions. It will provide for wider and more efficient co-operation in fighting transnational crime. The increased mutual assistance powers provided will be of use in detecting and prosecuting criminals. It is an essential item of legislation in a world where crime knows no borders. l commend the Bill to the House and look forward to hearing the views of Deputies on it.