John Halligan (Waterford, Independent)

Until comparatively recently, the ambit of criminal laws in most countries applied only to what was done in the country in question. Persons could not be prosecuted in one country for what they were alleged to have done in another jurisdiction. Thus, Irish citizens were accountable only to the Irish courts for crimes they allegedly committed in Ireland. They were not accountable to the courts of countries such as Albania, Turkey and Zimbabwe, with which we have extradition treaties. In recent years, the laws of some countries purport to apply their criminal laws to acts done anywhere in the world even by non-citizens of those countries. This Bill aims to facilitate such developments. A person who previously lived in Albania, Turkey or Zimbabwe and is now living in Dublin or Cork could through his or her business or other activities provide the excuse for those countries to seek his or her extradition even though the activities in question do not warrant investigation by the Director of Public Prosecution in Ireland and may indeed be completely legal here. The only safeguard, if one could fairly describe it as a safeguard, is the discretion, whim or good sense of the Minister for Justice and Equality. United States law covers a plethora of complex crimes related to rasing funds and financing business. Under the proposed amendments, any Irish citizen who raises funds here in a similar way is at risk of being extradited to the United States, even if the DPP declines to prosecute.

The amendment proposed by the Government makes our citizens and those who legally reside here amenable to the laws of our extradition partners, including Albania, Turkey and Zimbabwe, and potentially applies to every activity in this country undertaken by a person which the applicant country wishes to extradite. A conscientious citizen would be advised to become familiar with the criminal laws of countries with which Ireland has extradition arrangements before adopting any particular course of conduct in respect of these countries. Subject to the decision of the DPP and the discretion of the Minister, one could be at risk of extradition to any number of countries. It is easy to envisage a situation in which a person offended the authorities of a country in which he or she conducted business. Those countries would be able to seek extradition on the grounds that the way in which that person conducts business in Ireland offends their criminal codes and, hence, their extraterritorial law. In such circumstances, only the discretion of the Minister could save a person from extradition. The lawyers whom I have consulted take the view that such a state of affairs is most likely unconstitutional. In practice it applies a whole variety of foreign criminal laws to what citizens do in Ireland, including laws of which nobody here can reasonably be expected cognisant. These laws may be in languages which the citizen does not speak or based on the tenets of various religions. Accordingly, unless the amendment is surrounded by appropriate safeguards, this outrageous and wholly disproportionate proposal will most likely be struck down as unconstitutional, at least insofar as it applies to Irish citizens and permanent residents.

The amendment should not apply to Irish citizens. If they contravene criminal law in this country, the place to try them is before an Irish jury of their peers. It is impossible to envisage circumstances where citizens should be extradited to some other country to be tried, often without a jury, for crimes they have allegedly committed here. Insofar as non-citizens are concerned, since 2008 there have been procedures that greatly facilitate prosecutions in this State where aspects of the alleged offence occurred or have some effect outside the State. Under the Criminal Justice (Mutual Assistance) Act 2008, relevant evidence existing outside the State can easily be given in criminal trials in the State either by way of having evidence taken abroad and sent here or through audio-visual links.

Before anyone is extradited for an action that could be prosecuted as a crime in Ireland, it should be demonstrated that it is impossible to have the individual prosecuted in this country. Assuming the impossibility of prosecution in Ireland, the country seeking the extradition of a non-Irish citizen should be required to provide what is commonly referred to as a prima facie case. This is common justice in most democratic countries. The country seeking extradition should provide evidence to demonstrate that it has sufficient proof against the person concerned to justify his or her being put on trial when surrendered. A requirement along these lines exists in many international extradition arrangements, with the notable exception of the USA. When US authorities seek a person's extradition from Ireland or the UK they do not provide prima facie proof, whereas US law requires Irish or UK prosecutors to demonstrate a prima facie case in the US courts before it will permit an extradition. It is one law for the American State and another for everywhere else.

Where no material part of the offence occurred in the State, for example, a terrorist bombing committed in the US and prepared in Timbuktu, a case may be made for revoking some of the safeguards but the proponents of this amendment are citing extreme and exceptional case to justify the removal of proper safeguards in the more common cases. In the recent case concerning Sean Garland, US authorities alleged that he arranged the distribution of counterfeit US dollars in several EU countries , from his base in Dublin. The documentation sent by the US did not contain a shred of evidence to suggest that the alleged offence even occurred, let alone implicate Mr. Garland. The US authorities merely presented sweeping assertions without evidence to back them up. They repeatedly stated that they did not need to produce evidence until they brought Mr. Garland back to America. Surely that cannot be permitted. We cannot stand over such a regime. Notwithstanding that, Mr. Garland could have been put on trial here. The Criminal Justice (Mutual Assistance) Act 2008 applies to the USA, making it very easy for evidence gathered by the US authorities to be used in a criminal trial in this country. No attempt has since been made by the US authorities to have Mr. Garland prosecuted here. Had the US authorities evidence of his guilt, they could easily present the evidence in a prosecution before a jury in Ireland. That no such prosecution has commenced points to a simple conclusion, namely, that there never was evidence of his guilt and the attempt to have him extradited was simply an abuse of the system in order to get Mr. Garland to America. If this amendment is adopted without satisfactory safeguards, the only protection against extradition to the USA or elsewhere, for the purpose of putting the person on trial for crimes allegedly committed in this country, relies on the good offices of the Minister and political convenience.

Many Deputies and Senators supported Mr. Garland. Many of us believed the case was based on the fact that the man had spent his life fighting American imperialism and terrorism in South America, Africa and the Middle East. That was the real reason Mr. Garland was to be extradited. Fair Trials International, FTI, is a London-based non-governmental organisation. It is highly thought of across the world and has claimed to highlight a number of cases demonstrating that the European arrest warrant system is causing serious injustice and jeopardising the right to a fair trial. The organisation says the European arrest warrant has been issued many years after the alleged offence was committed and expressed concern that warrants have been used to force a person to trial when the charges are based on evidence obtained through police brutality in many countries. This has been accepted by many governments across the world. There have been numerous instances where people surrendered under an arrest warrant have had to spend months or even years in detention before they appear in court to establish their innocence. It is the first duty of the State to protect its citizens and allow them the right to a fair trial and we cannot allow the Bill to be passed. The alternative is to sacrifice the safeguards of due process for the sake of expediency.

I reiterate my point about the difference between America and here because the Minister was not in the Chamber at the time I made it. When the US authorities seek a person's extradition from Ireland or the UK, they provide no prima facie proof but when Ireland and the UK want to extradite someone from the US, the law of the US categorically states that a prima facie case must be demonstrated before the person is surrendered. No doubt, this is driven by outside interests. The Minister may or may not admit that he has been contacted by the American authorities or some of their agencies. It is interesting that the Bill has come before the Dáil so quickly. It reminds me of a song by Sandie Shaw called "Puppet on a String". Perhaps the Minister can make it his favourite tune of all time.

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