Catherine Murphy (Kildare North, Independent)

The primary aim of the Bill is to give legal effect to the agreements that have been entered into under various treaties and conventions. In principle, I do not have a difficulty with mutual assistance. We are clearly living in changing times, and many crimes, such as those relating to the drug trade, terrorism and human trafficking, have taken on an international dimension. These are areas where there is a clear need for co-operation and exchange of information. It is not only desirable, but required.

The Bill allows for money trails to be pursued. This proved to be of key importance with the Criminal Assets Bureau. The Bill also allows for the freezing of assets and the interception of telecommunications messages. It allows for the compelling of witnesses and permits requesting authorities to detain witnesses at their discretion, without a requirement to due process. Mutual assistance is a soft description. This is a significant item of legislation that requires careful scrutiny.

The argument that if people have nothing to hide, there is nothing to fear, has often been advanced as a reassurance to the public when tough criminal law is being enacted. There are high-profile examples, such as the Birmingham Six and the Guildford Four, which prove that this is not necessarily the case. The principle of this legislation is fine, but it is important for us to pay very close attention to the detail.

The Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union seems strong on law and specifics, unlike, for example, the mutual assistance agreement between this State and the United States of America in respect of tackling criminal matters. There are many ambiguous areas in that respect, to some of which I will refer.

We cannot afford to ignore the significant difference in culture with regard to law enforcement between Ireland and the US. There is a high incidence of incarceration of citizens in the US, as opposed to a more tolerant approach for minor crimes here. I visited the US some years ago and somebody in a prison informed me that approximately one person in ten will have spent a night in prison at some stage. I was quite shocked, but it shows that minor crimes tend to draw more punishment and that there is a different culture of law enforcement.

This Bill includes a bilateral agreement with a country which is not operating within the terms of international law and which does not even recognise international law. That country has no regard for the rules of war or the Geneva Convention. The United Nations recently denounced the operation of the camp at Guantanamo Bay and has sought that prisoners there be either charged or released.

We must remember that the UK is a partner in the war in Iraq with the US. Two British citizens were released, without charge, from Guantanamo Bay after being held there for two and half years. There is every reason for us to proceed with extreme caution and consider the matter in great detail.

Section 4 of the Bill allows for the designation of a state other than a member state. There does not seem to be any guiding principles in terms of limiting the states with which information can be exchanged. The section should include some formulation of words, such as "provided that the state recognises and operates its laws in accordance with international law, and human rights law", that would restrict the provision. Otherwise, the Government could theoretically deal with any state in respect of these matters.

Some sections of the treaty between Ireland and the US are as follows. Article 1.2 states that assistance shall include "such other assistance as may be agreed between the Central Authorities." If we pass this legislation this month, the Minister for Justice, Equality and Law Reform and the US Attorney General, Mr. Gonzales, will decide matters between them. There are no limiting words such as "such other assistance as may be agreed between the Central Authorities provided that this assistance is in accordance with domestic and international law". It is very broad and gives unlimited scope with regard to information gathering and sharing.

Article 1.3 states:

Except when required by the laws of the Requested Party, assistance shall be provided without regard to whether the conduct that is the subject of the investigation, prosecution, or proceeding in the territory of the Requesting Party would constitute an offence under the laws of the Requested Party.

Regardless of whether such conduct is criminal here, the US can still request assistance.

Theoretically, we may be asked to provide information or seize the assets of someone who has not committed any offence under Irish law. This may have constitutional implications, considering the importance of the presumption of innocence. It has the potential of locating or identifying people or providing articles or evidence on persons and seizing property, where the person has never committed any crime in this jurisdiction. There are far more safeguards where seizure of assets or property is concerned and I would have expected equal or additional safeguards for people, including Irish citizens.

Under Article 3, assistance may be denied even where a requested party is of the opinion that the request, if granted, would impair its sovereignty, security or other essential interests, or would be contrary to important public policy, or where the persons concerned has already been acquitted or convicted of the crime in question, the two can still come to a compromise so that the assistance is granted. This means that there is no certainty before the law and that an acquittal does not even protect a person who has been through the courts and proven innocent if the two Governments agree to a compromise.

Article 7 states that the requesting party may use any evidence or information obtained from the requested party "for preventing an immediate and serious threat to its public security." Is this not the rationale used for detaining persons at Guantanamo Bay as a means of preventing attacks on the USA? I imagine that it means something completely different to the US Government than it does to people here. It is this to which I referred with regard to an emphasis on culture. That must be taken on board.

Article 10 states that a person who has been compelled to be a witness in the requesting party's country can be denied due process or detained or subjected to any restriction on their liberty at the discretion of the Government that requested his or her presence. This is not the section that deals with persons in custody and, therefore, a non-detainee can be locked up and forced to give evidence in respect of an offence that is not even criminal in Ireland. It is down to the central authority in the requesting state to tell the state of which the request is being made when it has finished with the witness and specified timeframes are not set down. This could be used as a form of detention. Article 10 also indicates that it is the responsibility of the country requesting a witness to appear in its jurisdiction, regardless of whether it holds the person in custody. These are some of my concerns relating to that specific treaty and they are not exhaustive.

With regard to the Bill, we have been informed that it is not possible to quantify the available finance. I am concerned that we are imposing further obligations and tasks on our police force and expecting them to be carried out with existing resources. If this results in cuts, it is certain that the latter will occur from the bottom up. Community policing or the traffic corps will suffer. We must be careful. If the finance cannot be quantified, it is not possible to state that it will be resource-neutral. For example, I imagine that it will require some gardaí to travel in order to meet members of other forces and carry out joint investigations, both here and in other countries. The resourcing issue must be considered. I have serious concerns about this legislation.

See this speech in context