Dermot Ahern (Louth, Fianna Fail)

Deputy Rabbitte referred to the role of the Attorney General in terms of certification. That provision was deleted from the Bill on Committee Stage. The point was made on Committee Stage that if the Attorney General sat at the Cabinet table it might be viewed that he had some role in this area and as such that provision was removed on Committee Stage.

The effect of the amendments would be to delete subsection 16(12) of the 2003 Act and to leave the text as is, namely, an appeal to the Supreme Court on a point of law only. I mentioned on Committee Stage that the Attorney General had advised that appeals are in many instances being lodged on frivolous and vexatious grounds for the purpose of delaying surrender. The Attorney General advised that the right of appeal should be restricted to a point of law of exceptional public importance, certified as such by the High Court where it is in the public interest to do so. As I said on Committee Stage, section 15 relates to where a warrant for surrender has been received and the person consents to surrender and subsection (9) allows a person, who has consented to surrender to withdraw his or her consent at any point prior to surrender, a right which pertains even up to the steps of the aeroplane taking him or her to the receiving country.

Operational experience has shown that the provision has been availed of on many occasions on vexatious grounds purely for the purpose of delaying surrender. The Attorney General has advised the abolition of this section and inclusion of the new section 3A, which also provides that an appeal to the Supreme Court should be on a point of law of exceptional public importance where it is in the public interest to do so. A similar provision in relation to appeals to the Supreme Court has, therefore, been included through sections 11 and 12 of this Bill in sections 15 and 16 of the European Arrest Warrant Act. Deputies do not appear to have tabled amendments to section 11.

Deputy Rabbitte referred to pressure on the Supreme Court. There is no doubt that appeals against European arrest warrants, which are in many cases lodged purely for the purpose of delaying surrender, do contribute to pressure on the Supreme Court. I make the point that following a High Court order for surrender, a person has 15 days in which to lodge an appeal. There is, therefore, no delay in surrender between the making of the order and the lodging of the appeal. However, once the appeal is lodged surrender is postponed until the Supreme Court judgment is issued. The Supreme Court prioritises appeals where the applicant is held in custody but it can take from two months, where a case is prioritised, to more than a year for a judgment to issue. Since the coming into force of the European Arrest Warrant Act 2003, 64 appeals have been lodged to the Supreme Court. I am advised that the majority of these did not deal in any shape or form with significant points of law. To date, the Supreme Court has issued judgments in 28 of these cases, only three of which were upheld with the remaining 25 being dismissed. In these cases, the majority of the grounds of appeal were repetitious. For example, a number of appeals were made on the basis that the Act was unconstitutional and that the framework decision had not been properly approved by the Oireachtas. Six appeals were withdrawn, some of them after seven months. Obviously, the persons involved benefited from the postponement of the surrender following the lodging of the appeals in these cases.

There are currently 30 appeals awaiting hearing. Some appeals lodged in 2007 and early 2008 have been waiting a year or more for hearing. No hearing date has as yet been set in respect of the majority of these cases. Given that even cases on the priority list will probably take two legal terms to get through, it is likely that the delay in hearing the majority of cases will increase with a resultant delay on surrender. We are now amending an Act only passed in 2003. It must be emphasised that this is a surrender rather than a trial for an offence, although the person will obviously have to go before a trial when he or she enters the receiving the country. I believe it is only reasonable that we allow an appeal to the Supreme Court but only as is suggested by the Attorney General, namely, that it be on an exceptional point of law when in the public interest so to do. It is for the High Court to decide on that issue when the appeal is lodged.

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