James Browne (Wexford, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am pleased to introduce the European Arrest Warrant (Amendment) Bill 2022 to the House. This Bill aims to address certain issues that have been identified by the European Commission with our existing legislation in this area in formal EU infringement proceedings. Timely enactment of the Bill will ensure that Ireland is not referred to the Court of Justice of the European Union, CJEU, and will not become liable for financial penalties. Second, this Bill also makes a number further amendments to European Arrest Warrant Act 2003 to ensure there is a continued efficient operation of European arrest warrant system within the State.

By way of background, any European Union country may use European arrest warrant systems to seek the return of a person who is wanted in that country in relation to a crime. The warrant may seek the return of the person to stand trial, to face sentencing after a conviction or to serve a sentence that has already been handed down by a court in that country. The original European Arrest Warrant Act 2003 transposed the European Union Council framework decision 2002/584/JHA and came into effect on 1 January 2004. It replaced the previous extradition process between EU member states with a much faster and more simplified system that has been successful and that is regarded as a vital tool in the fight against crime right across the European Union.

The 2019 report by the Irish central authority for the operation of the European arrest warrant, which was published by my Department only last year, noted that the arrest warrants received and issued during 2019 cited a wide range of offences. Among the principal offences that were cited were murder, grievous previous bodily harm, sexual offences, including the rape and sexual abuse of children, drug offences, robbery, assault, fraud and human trafficking. This shows the full scope of serious offences which can be subject to more effective criminal law enforcement as a result of the arrest warrant system. Some 109 orders for surrender were executed by the State in 2019, which involved 94 individuals. In addition, 51 individuals who were subject to the Irish-European arrest warrants were surrendered to the State in 2019.

I will briefly mention some of the main provisions of the Bill. Section 4 amends section 10 of the 2003 Act, which sets down the general provisions of the obligation to surrender persons on foot of an arrest warrant. The aim is to reflect as unambiguously as possible the requirement that a person will be arrested and surrendered by the State to the state that sent the arrest warrant, known as the "issuing state", where a private or criminal prosecution will be or is being brought against the person concerned.

Section 4 has been drawn up in parallel with section 26A of the Bill, which provides for the repeal of section 21A of the 2003 Act. The latter provision currently requires the High Court to refuse a surrender request where a decision has not been made to charge the person with, and try him or her for, an offence. The Commission's view is that the current section 21A represents an additional mandatory ground for non-execution of a warrant that is not provided in EU law. On legal advice, it is proposed to accept this approach and thus delete section 21A.

I am advised that the State will still be able to rely on section 10 of the 2003 Act to provide a similar safeguard, as the language used has a clear legal basis in article 1 of the framework decision, which provides that a European arrest warrant is issued with "a view to the arrest and surrender ... of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order".

Section 7A amends section 14(5) of the 2003 Act by providing that there is certainty with regard to the full release of individuals who are on bail where an arrest warrant is not produced in court on the required date. Part b provides that any such release does not prejudice any potential re-arrest and surrender and provides that a standard notice is to be added to the Schengen information system to reflect the fact that the release has taken place. The Schengen information system is the European Union-wide system for security and border management, which is administered in Ireland by An Garda Síochána.

Section 8 inserts a new section 14A into the 2003 Act, providing for the temporary transfer of the person who is the subject of an arrest warrant to the issuing state under conditions agreed by the High Court and a judicial authority in the issuing state. Subsections (4) to (6), inclusive, provide for an alternative to the temporary transfer where the person who is subject to an arrest warrant can be heard by a court in the State on the basis of a request made by the issuing state. Deputies may wish to note that my Department is currently in contact with the European Commission to confirm the exact nature of the legal changes required for this section. It is likely to be the subject of an amendment on Committee Stage.

The purpose of sections 9 and 10 is to align the timelines in the 2003 Act for the making of the High Court decision on the arrest warrant and the surrender of the requested person with the relevant provisions within the EU framework decision. The effect of the changes is that there will be a need for more expeditious processing of arrest warrant cases in this jurisdiction based on the requirements of the EU framework decision. A consequential amendment is made in section 11, providing that failure to adhere to the revised timelines for processing an arrest warrant for any reason does not constitute a ground to refuse to surrender a person and does not preclude the continued detention of the person under 2003 Act. This reflects the case of European Court of Justice, which requires that the deciding court must always retain the capacity to process arrest warrant cases to finality. Section 15 relates to the operation of the rule of specialty in section 22 of the 2003 Act. This rule is codified in international extradition treaties. It states that an extradited person should not be proceeded against, sentenced, detained or re-extradited in requesting state for any offence committed before surrender, other than the offence for which extradition was granted. At present, section 22 provides that this rule may be waived by the High Court where certain criteria are met. Section 15 provides that the High Court shall waive rule of specialty where the criteria are met. This section also provides a time limit for the High Court's decision in this area.

Section 16 amends section 23 of the 2003 Act, which provides for the surrender of an individual by the issuing state to another member state in certain circumstances. Section 16 introduces an obligation and a timeline for the High Court in giving its consent to a request for surrender from the issuing state to another member state where certain requirements are met, such as where the person consents to the surrender. At present, the High Court has the discretion to give such a consent and there is no time limit for its decision.

Section 21 amends section 39 of the 2003 Act, which deals with the prohibition on surrender on foot of an arrest warrant, due to the person being immune from prosecution or punishment due to any amnesty or pardon. The amendment consolidates the existing provision into one paragraph, dealing with all forms of legal amnesty or pardon. In addition, the amendment clarifies that the State must have jurisdiction to prosecute the offence concerned if a person is not to be surrendered due to amnesty or pardon.

Section 22 amends section 41 of the 2003 Act, which deals with the concept of double jeopardy. Section 41 of the 2003 Act currently provides that a person cannot be surrendered for the purposes of being proceeded against in an issuing state where final judgment has already been given in the state, another member state or a third country for the same offence. Section 22 amends this to state that any sentence of imprisonment or detention already imposed in the state, a member or third country must have been served or no longer applied to the person for this provision to apply, as required by the EU framework decision.

Section 24 amends section 45 in 2003 Act changing from mandatory to discretionary the power of the High Court to refuse to order the surrender of the person where he or she did not appear to the proceedings giving rise to the arrest warrant. This section also provides that the High Court shall arrange for the issuing state to be informed of any request from a person for a copy of the judgment, which was the basis for the arrest warrant.

Section 25 amends section 46 of the 2003 Act, which currently prohibits surrender of a person who has immunity from prosecution as a result of holding any office or other position under the law of the State.

This is qualified to state that the prohibition on surrender applies while the person holds that office. Provision is also made for the High Court to request the waiver of such privilege in certain circumstances and for consequential changes to the time limits for arrest warrants.

Section 26 will provide for repeals, including the proposed repeal of section 37(1)(b) of the 2003 Act. At present, that section provides that a person shall not be surrendered if doing so would be incompatible with the European Convention on Human Rights, would contravene any provision of the Constitution or would be otherwise discriminatory or against human rights. It is proposed to repeal section 37(1)(b), deleting the reference to a contravention of the Constitution, as this is not provided for in the framework decision. I am advised this is required by the EU framework decision and that, given the remaining references, it will still ensure there is no overall change in the level of human rights protection provided by the section.

I look forward to the debate on the Bill, which will underpin a more efficient system for the European arrest warrant in Ireland, a system that is central to the fight against crime. I am pleased to commend it to the House and I look forward to working constructively with Deputies as it is progressed.

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