Mattie McGrath (Tipperary South, Independent)

According to the Minister, the main objective of the Bill is to apply the provisions of the European Arrest Warrant Act 2003 to states other than European Union member states. It also makes procedural and technical amendments to the 2003 Act and to the Extradition Acts 1965 to 2001, inclusive, and gives effect to Council Framework Decision 2009/299/JHA on the mutual recognition of judgments in the absence of defendants. I have always been of the view that the first duty of any state is to protect its citizens. The right to a fair trial is surely a fundamental right of any person in this State. This Bill, however, will potentially sacrifice the safeguards of due process for the sake of expediency. As a member of the legal profession, the Minister surely knows more than I about due process. However, it is clear to me that it is something to which each citizen of this State is entitled. In fairness, the rights of citizens are generally upheld in this country and, as such, I would urge the Minister to make haste slowly.

I am not sure where the rush is coming from to implement these provisions. The Minister has cited the need fundamentally to overhaul the provisions in this area, but I am concerned he may be using that as a cover to put his own flavour in a very serious way on this important legal and human rights issue. I hope he will heed advice to proceed with caution. When groups such as the Irish Council for Civil Liberties - I do not always agree with the views put forth by the council but it is a body everybody respects - Fair Trials International and many other non-governmental organisations are expressing serious concerns about this proposal, the Minister must be obliged to take those concerns on board. Representatives of the various groups should be invited to a meeting of the Oireachtas Committee on Justice, Defence and Equality to put forward their proposals for the Bill before it proceeds further. I urge the Minister not to guillotine the debate on the Bill. The Government's record is poor in this regard, with almost 78% of all Bills introduced by it being subjected to the guillotine. This is far too serious an issue to be treated in that way. The legislation should not be brought further in the absence of a broad consensus that is sensible of the serious repercussions of proposals in this area and which takes account of the legal implications. We are all aware of cases where people have been extradited to various countries where they are locked up for years awaiting trial, may receive little or no legal representation, are given no access to interpreters and so on. It is a very lonely place in which to find oneself. Some people are extradited for offences they committed unknowingly. We must be 100% sure before we go down the road of extraditing our citizens to countries where they might encounter such treatment.

I am entirely supportive of extradition in respect of serious crimes, where it is done legally. The equation of a common judicial space with common laws has untold merits in bolstering the capacity of law enforcement authorities to combat crime across international and EU borders. However, alarm bells must go off when one considers that the scope of this Bill is draconian in the extreme, a view held by a broad range of members of the Judiciary, legislators, academics and non-governmental organisations across Europe. Were their concerns taken into account in the drafting of the Bill? The Minister said he was dissatisfied with previous amendments to the law and has undertaken, in these proposals, to implement a fundamental change. However, I must question his motives. The Bill places far too high a degree of trust and good faith in the criminal justice systems and human rights standards of other countries. Any such act of faith cannot be taken lightly. We can only vouch for our own justice system and our own rules concerning trials, the preparation of a book of evidence, defence procedures and the right to legal representation. We can have absolutely no influence over what happens in other countries. To allow citizens of this State to be extradited to another country in the absence of a requirement for a solid case against them, in accordance with our own laws and procedures, would be very dangerous.

Under European arrest warrant law, local police are obliged to arrest a suspect without any evidence of a crime being presented. Surely that should be a no-go area, especially in respect of third party countries whose justice systems would not meet our standards. In this State the Office of the Director of Public Prosecutions may take a year or more before deciding whether to proceed with a prosecution. It is an understandable source of concern and frustration to complainants that there is no transparency in regard to these decisions. There is no way to know what is presented in evidence to the DPP other than on the hearsay of a Garda superintendent, for instance, or by some other type of leak. As such, it is very difficult to understand the DPP's decisions and the rationale behind them. There are enough concerns about procedures within this State without adopting what is proposed in the legislation.

The Bill provides for a no-questions-asked approach to extradition and is, therefore, fundamentally flawed. A person can be picked up and handed over to the authorities of another country, without any tangible evidence of a criminal offence, for those authorities to do what they will. That cannot sit right with anybody. Citizens can be arrested and extradited for crimes they do not even know they have committed or for such minor offences as referred to by others. We might even be talking about an administrative error at a border crossing or an error on a passport. I have had cases where people have been held up unduly because of an incorrect spelling on their passport. That could happen to any of us or to any one of our family and friends.

The Bill must be pressure tested and there must be engagement with all of the groups that wish to have a say. The Minister cannot consult the Judiciary on such matters but, as I said, there have been comments by judges, legislators, academics and non-governmental organisations throughout Europe. We should allow representatives of these groups to present their concerns at the justice committee and to propose amendments to the Bill. We all recall the very high-profile case concerning Sean Garland, which went on for a long time before being resolved. I was never a supporter of Mr. Garland, but I signed the petition opposing his extradition because, first, he was a sick and elderly man and, moreover, there were no assurances as to what type of trial he would receive. There was a perception abroad that this individual was guilty and had to be proved innocent, the very opposite of the fundamental principle of our democracy that one is innocent until proven guilty.

In this country one can receive legal aid, or employ barristers if one can afford them, to fight to prove one's innocence. It is much more difficult if one is extradited to a country where laws are not as fair as we understand them here and must try to prove one's self innocent of charges as one is labelled guilty before ever coming to court. It is a serious matter. The no-questions-asked approach is a non-runner as far as I am concerned.

The subject of a warrant is prohibited from raising issues concerning what he or she is being accused of in the executing state, a situation which surely paves the way to injustice. We can question our warrants here and ensure they are right and proper. We do not know what kinds of warrant will come from states seeking extradition. There is a large number of such cases at present under the European arrest warrant system. There undoubtedly has been a rapid increase in the use of European arrest warrants, with a record 326 warrants received in this country in 2009, which obliged citizens of Ireland and other countries to try to clear their names abroad. In the same period there were 69 completed surrenders. That is a worrying figure. As has been mentioned previously, a report by the President of the Council of Ministers noted that European arrest warrants had been issued for such trivial offences as the possession of a tiny number of ecstasy tablets and the theft of a piglet, or a banbh, as I would call it. It is worrying that these are so trivial. This is not coming from me; it is from the President of the Council of Ministers. In such situations we certainly should sit up and think. Discussion at national and European level on the appropriate issuance of European arrest warrants is crucial. If that many were issued in 2009 - 326 - and 69 were allowed, it does not take a genius to conclude that not many are being allowed, but why are so many being issued and on what grounds? Why do we acquiesce to them, and why do we want to widen their scope? Why do we want to make it easier?

Significant details that are contained in the Bill presuppose the guilt of the requested person without the necessity to prove or produce evidence. We need tangible evidence, and for anyone to be tried in this country - or in the neighbouring jurisdictions - the DPP or similar body must be satisfied beyond reasonable doubt that crimes have been committed. We must be fairly sure that if the State decides to try somebody it has a reasonable chance of success. There is a presumption that laws were infringed or broken. I am worried about that.

The removal of double criminality as a feature of this legislation also gives rise to serious questions. Some of the offences under the European arrest warrant lists are readily identifiable as criminal offences and share common if not identical requirements for their commission throughout member states. Others are noticeably vague. A considerable number of such laws are the subject of debate, such as the offence of Holocaust denial in Germany, and there are disparities in the extent of crimes such as conspiracy in different countries. The use of language and people's attitudes are vastly important in determining what constitutes a crime. Legal experts have argued that the Bill could result in requests for the surrender of persons for offences unknown in the country that receives the request, which would be unthinkable. This is skating on thin ice as far as I am concerned. It is totally at variance with the presumption of innocence until proven guilty, which we should be supporting.

The Minister says we need reform, which is probably true, but I question the rush to supersede all reforms that have already taken place in just a couple of amendments. Root and branch reform is required. I question what is behind this, who is driving it and from where it has come. There is no guarantee that the people we might allow to be extradited under this system, whether our citizens or others, will get a fair trial or due process. As Deputy Daly said, a person could be placed under such extreme pressure that he or she would admit to an offence that he or she did not commit simply to finish the ordeal and get home to his or her country. That would be most unsatisfactory, and would be a terrible ordeal through which to put a citizen of Ireland or any other country in the absence of a tangible reason for doing so.

I look forward to further debate on this. I hope the Minister will provide an opportunity for a broad discussion and allow the NGOs and organisations I mentioned, as well as legal representatives and members of the Judiciary, to make their points. We must have balance at all times. There is no point in throwing the baby out with the bath water. I am concerned about this legislation. I thank you for your forbearance, a Cheann Comhairle, and look forward to more debate on this issue.

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