Thursday, 8 June 2006
Criminal Justice (Mutual Assistance) Bill 2005 [Seanad]: Second Stage.
Brendan Howlin (Wexford, Labour)
Then an alternative arrangement should have been made to dispose of justice matters, especially since two Ministers of State are assigned to the Department.
The legislation is important because we live in a globalised world. The main plank of the European Union is the free movement of goods, services, people and capital, and this impacts increasingly on the way we live. We no longer think in narrow national confines and, by and large, that is good. We are socially and culturally enriched by the free movement of new ideas, cultural inheritances, music and so on. Ireland has been enriched by the movement of labour, which has fed the dynamic Celtic tiger, and capital. New structures in an integrated Europe are being built as a result of the freedom of movement.
Unfortunately, crime has always been globalised and it has always been a step ahead of globalisation. While a structure is in place within the Union to facilitate the free movement of services, for example, crime is not hindered by such encumbrances. The structures that are put in place must be robust to ensure criminality is faced down and tackled in a co-operative manner within Europe and beyond by like-minded countries based on principles of democracy and justice. I accept the importance of co-operation in policing and criminal justice matters generally and I support such co-operation wholeheartedly on behalf of the Labour Party.
The earliest form of European co-operation on these matters was based on a Council of Europe concept. I was privileged to serve as a member of the Parliamentary Assembly of the Council of Europe. The bedrock of the Council was the European Convention on Human Rights but it took Ireland 50 years to transpose it. The argument put forward by successive Governments during that time was that fundamental freedoms enshrined in the Constitution were more robust than those provided in the convention. However, the reasons were more complicated than that. Notwithstanding that, the co-operation between countries anchored in the European convention evolved through other conventions over time, including the 1959 Convention on Mutual Assistance and Criminal Matters, which is a precursor to this legislation, while a series of developmental protocols in justice co-operation were introduced subsequent to the Treaty of Rome.
I refer to controversial issues such as extradition. Those of us who have been Members for a long time will recall heated debates on such issues. The need to ensure international co-operation should be anchored in principles of justice and law. This week, we have been reminded of unlawful rendition of so-called suspects to places of detention or interrogation. The concept of extraordinary rendition is the antithesis of proper legal extradition based on constitutional laws and principles to which we, as a nation, subscribe. For that reason, it is important in implementing a framework for legal co-operation that we are clear and robust about not co-operating with illegal activity, for example, by facilitating it through direct compliance or indirect advertence of eye to practices such as this. I hope the principles enunciated by the Minister for Foreign Affairs in the past 24 hours and the Minister for Transport in the House yesterday will not be sops to this principle. Proper inspection of aeroplanes passing through Irish airspace or airports should be required. The Government should, therefore, not only accept assurances that no act is being carried out to which the State could not be a party, but ensure it is so through proper inspection.
In the post-9/11 world, there has been a new focus and alertness regarding global security issues. Laws enacted in a number of countries, such as the Patriot Act in the US, would not have been accepted in different times and, thankfully, they would not be accepted in this jurisdiction even now. We have experienced threats to the security of the State. There were times the threat to the survival of the State was much more real than the threat that manifested itself in the US post-9/11. We did not always succeed because we went too far sometimes but governments always sought to ensure there would be no heavy gangs or laws that would infringe constitutional rights and privileges. The work of the Houses of the Oireachtas and the Judiciary, in particular, preserved constitutional rights even in the face of peril over time. That principle should be maintained in the frenzy of the new focus on international security.
The Union, particularly during the Finnish Presidency, also developed new legal bases for shared co-operation on intelligence and security matters. We always need to strike a calm balance in our minds between the need for security and the protection of the individual citizen and the protection of the State and to preserve the basis of the State, which is the rights and freedoms of the citizen.
I refer to the provisions of the legislation, which is lengthy, although much it of comprises a recitation of various protocols and the Irish-US treaty. However, a number of provisions will require scrutiny on Committee Stage, to which I look forward, and I will preserve some of my careful consideration for that Stage. Part 2 deals with provision of information and monitoring arrangements for financial transactions. It is important, having regard to Ireland's position as a centre for international financial services, that we should not only have robust law in this area but that the international investor community should understand we have clarity in these matters. International financiers should have confidence in the way we manage our affairs and Ireland should not have a reputation, for example, for being a bolt-hole for hot or tepid money because moneys are traded transparently through our financial institutions
Scrutiny should be robust so that criminal behaviour can be effectively identified and speedily eradicated. If we are to have a future in international financial services, that principle needs to be anchored to the financial services and criminal monitoring legislation enacted in these Houses.
The Bill contains a lovely new phrase, "account monitoring orders". In recent years, the tribunals of inquiry have been engaged in their own account monitoring orders, with some interesting results. In the past 48 hours, I read that an individual before a tribunal claimed to be shocked at the amount of money unearthed by such monitoring.
Section 14 deals with requests from member states for information about financial transactions and sets out the procedures to ensure compliance with such requests. We need to ensure that requests from other member states for information about financial transactions by individuals who are citizens of or resident in this State are made with clarity. Section 14(2)(b)(i) states: "any information that may be supplied in response to the request will not, without the Minister's prior consent, be used for any purpose other than that specified in the request". How will that be guaranteed? Having read the provisions as carefully as I could in the time available to me, I am unsure as to how we can achieve that stated legal purpose. How can we know whether the information is being used for other purposes or take effective action if the information is so used, given that the information would by then have been passed on? These matters will require detailed analysis on Committee Stage.
If a Deputy has served here long enough, many issues remind him or her of past events. Part 3 of the Bill deals with the interception of telecommunications and messages. The behaviour of a previous Government should make us want to develop robust structures to ensure that communications are monitored in accordance with law. The legislation that governs the interception of such communications was introduced by a coalition Government as a result of the events of that time. Clearly, these provisions will need careful scrutiny. Section 22 sets out the mechanism to deal with situations in which we want to monitor the transmission of communications in another member state, while section 23 deals with requests made to us on interception. In order for us to comply with a request from another member state, the request would have to be subject to the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. In other words, the offence being investigated would have to be an offence in this jurisdiction and the request would have to conform to the Constitution.
I welcome the fact that an amendment was accepted on Report Stage in the Seanad on judicial oversight because I was alarmed to find that the Bill as amended on Committee Stage did not provide for this. I am unsure as to the stage at which judicial oversight is involved but the Minister of State may inform us of that.
Part 4 deals with freezing orders. Given the current climate, a freezing order may seem a good idea. The provision for a legal mechanism to freeze extraterritorial property and evidence is welcome.
Part 5 deals with confiscation and forfeiture orders. I presume this Part provides for an international version of the Criminal Assets Bureau, which is the most useful criminal justice agency to have been established in this State in recent decades. It is a useful and effective force for reaching to the heart of criminality by depriving criminals of the proceeds of their offences. The procedure by which CAB is to be internationalised will have to be clarified because we have already encountered constitutional issues in that regard.
Part 6 deals with the provision of evidence, including the potential transfer of prisoners to give evidence or assist in criminal investigations. This matter will also need further examination because I do not know whether people placed in custody or convicted in Ireland could be moved to another jurisdiction to aid an investigation. While legislation provides that sentences can be served in other jurisdictions, clarification is needed with regard to how somebody could be transferred for investigative purposes. I am happier with the provisions in the Bill which provide for video and telephone evidence.
Section 48 provides that an Irish judge may issue a letter of request to seek assistance in obtaining evidence from a person in another member state. I am confident that our system of judicial oversight is adequate in that respect.
In section 49, which provides for requests made to this State, "requesting authority" is not clearly defined for me. I refer to subsection (3) which states: "The Minister shall not exercise the power conferred by subsection (2) unless an assurance is given by the requesting authority that any evidence that may be supplied in response to the request will not, without the consent of the nominated judge or the witness, be used for any purpose other than that permitted by the relevant international instrument." I do not want to rehearse this State's judicial mechanism for processing applications from other member states under letters of request, but requesting authority is not defined in Part 6, although it may be defined elsewhere.
An issue arises with regard to the various judicial investigative structures in the European Union. The French and Italian investigating magistrate system, under which inquiries are conducted by judges who can cause a person to be held in custody during the course of an investigation, is different from our system, in which the police conduct the inquiry and the accused is held in custody at the behest of the courts, with the presumption of a right to bail. Who would be the investigating authority? Would it be an investigating magistrate? Would it be the police? Are there any circumstances in which a request would be made by the police to aid in an investigation or are we talking about presiding judges in a subsequent trial of an individual? That was unclear on my reading of requests being made to the State for co-operation on this. I may have overlooked the definition in another section of the Bill.
Part 7 of the Bill deals with other forms of assistance, for example the service of documents. It outlines a procedure which seems fine and good in that it requires translation to be provided to people whose base or original documents are in a language not known to them. It also deals with restitution of stolen property. I had not time this morning to reread the Criminal Justice (Theft and Fraud Offences) Act 2001, which is the guiding enactment for the restitution of stolen property provision in this Bill. Under section 69 of the Bill a request would be made to Ireland for restitution of stolen property and the procedure to deal with that is laid out. The section stipulates that a request to the State for the restitution of stolen property shall be in writing and shall include or be accompanied by:
(i) a description of the property;
(ii) its location;
(iii) the name and address of its owner; and
(iv) any other information likely to facilitate compliance with the request.
I am not sure whether this is a new provision or if there was always a possibility in law for a member state or another international body to make an application to the State for the restitution to it of property it claims was stolen. I am mindful of the ongoing debate on property looted by the Nazis. It has caused serious and widespread litigation in other jurisdictions. In Germany elaborate base law exists to ensure looted or stolen property can be identified and returned. Members will recall last year's controversy when allegations were made that some of the artifacts on display in a venerable and respected Irish museum were Nazi-looted and should be restored to the descendents of their rightful owners, the victims of Nazi tyranny. I wonder how that sort of charge would be played out on the provisions of section 59.
Section 70 lays out the action that is to follow on request:
(1) On receipt of the request the Minister may, if of opinion that the request complies with section 69, cause an application to be made to the District Court...
(2) The Court shall provide for notice of the application to be given to any person who appears to be or is affected by such an order unless the Court is satisfied that it is not reasonably possible to ascertain the person's whereabouts.
It then goes on to run its course. Is there a time limit on allegations of property being stolen? Are we to go back in history or does the normal Statute of Limitations apply?
Part 8 deals with mutual assistance in criminal matters between Ireland and the US. We can see that the provision in Part 8 is to transcribe into our domestic law the original Ireland-US treaty, which is recited as an appendix to this enactment in Schedule 8. The original treaty was enacted before 9 September 2001 but was modified by the US-EU treaty of 2003. Any co-operation agreement with any authority should be examined carefully and how this will manifest itself must be dealt with in great detail and with great care. It strikes me that profound matters are dealt with by international treaties but are seldom scrutinised by these Houses. We do not have the resources and I take some responsibility as a member of the Houses of the Oireachtas Commission for saying we do not have the resources to adequately, from a political and a public perspective, debate the import and impact of international treaties such as this. They seem to be a specialist area for officials at the Department of Foreign Affairs, and are rubber stamped by politicians and seldom given the scrutiny they deserve.
One of the changes envisaged in the treaty and which is transposed into our domestic law in section 78(4) of this Bill is the notion of the operation of joint investigation teams:
Section 7 (operation of joint investigation teams) of the Criminal Justice (Joint Investigation Teams) Act 2004 applies in relation to a joint investigation team established under Article 16 ter and operating in the State as if it were a joint investigation team established under that Act.
What is envisaged in these joint investigation teams between Ireland and the US? Where an asylum seeker or an Irish citizen resident in Ireland is on a list as a potential al-Qaeda member would that trigger a joint investigation? It is not clear how that would operate. We would always want to ensure full protection for Irish citizens.
One could speak for a long time on this Bill and I hope we will have the opportunity to do so on Committee Stage. Ministers are busy, particularly the Minister for Justice, Equality and Law Reform. However, for this House to hold and regain the respect of the people as a House of scrutiny on their behalf, we must ensure that full respect is given to the Members, the debates and the analysis we bring to any legislation, which we alone, under the Constitution, have the right to enact into law.