Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure: Proposal for a Regulation of the European Parliament and of the Council on the transfer of proceedings in criminal matters, a copy of which was laid before Dáil Éireann on 2nd May, 2023.

I thank the House for facilitating the motion today. Its focus is on improving cross-border co-operation in tackling and solving crime and administering justice. As all present are aware, such co-operation is essential at a time when the criminals we pursue show no regard for borders. This regulation will introduce common rules on the transfer of criminal proceedings, making it easier to transfer them from one member state to another. It will contribute to the efficient and proper administration of criminal justice across Europe and will be particularly effective in tackling organised crime gangs. I welcome the opportunity to address the House on Ireland's opt-in to this new regulation on the transfer of proceedings in criminal matters.

Ireland has an option, provided for in Article 3 of Protocol 21 annexed to the Treaty on the Functioning of the European Union, to opt in to individual proposals in the area of freedom, security and justice. The protocol provides that Ireland has three months from the date a proposal is presented to the Council to notify the Presidency of the Council that it wishes to take part in the negotiation, adoption and application of the measure. The exercise of this opt-in is subject to the approval of both Houses of the Oireachtas, with the three-month period for this proposal ending on 26 July. Ireland can also accept a proposal at any time after it has been adopted, under Article 4 of Protocol 21. In such cases, however, Ireland will not have been in a position to vote on the final content of the proposal. It must also be noted that Ireland made a declaration, appended to the EU treaties, of its intention to opt in to measures in the area of freedom, security and justice to the maximum extent it deems possible.

The Commission published its proposal for a regulation on the transfer of proceedings in criminal matters on 5 April this year. Increasing cross-border crime has led to more cases where several EU member states have jurisdiction to prosecute the same case. For instance, preparation or planning for a crime can be carried out in one member state, the crime itself committed in another member state, the perpetrators arrested in a third member state and the assets derived from the crime transferred to a fourth member state. This is expressly true for crimes perpetrated by organised criminal groups. Without mentioning particular groups, Members can probably think of such scenarios.

Parallel or multiple prosecutions can be inefficient, ineffective and lead to duplication of activities and may also be detrimental to the rights and interests of individuals concerned. Defendants, victims and witnesses may have to be summoned for hearings in several countries. Common rules on the transfer of criminal proceedings are necessary, therefore, to ensure the best-placed member state investigates or prosecutes a criminal offence. This proposal aims to reduce the number of multiple criminal proceedings being conducted in different member states in respect of the same facts or against the same person. This will reduce inefficient use of human and financial resources. Preventing unnecessary parallel criminal proceedings in different member states will also help to protect against infringement of the fundamental principle of criminal law that a person may not be prosecuted or punished twice for the same offence.

The proposal also aims to enable transfers of criminal proceedings where they are in the interest of justice but not currently possible between member states, thus reducing the phenomenon of impunity. For example, situations where a person surrenders under a European arrest warrant but that is refused would come under the proposal.

The proposed regulation requires certain criteria to be present for a transfer of criminal proceedings. Examples of the required criteria include the criminal offence having taken place wholly or partly in the requested state, the suspect or accused being a national of or resident in the requested state, the requested state having refused to surrender the person or, finally, most of the evidence being located in the requested state or the majority of the witnesses residing there.

In order to improve the efficiency of the transfer procedure, the proposal provides for jurisdiction in specific cases to ensure the state requested to take over criminal proceedings has jurisdiction to try the criminal offence for which the transfer is sought. Such jurisdiction can be exercised only upon a request for the transfer of criminal proceedings from another member state which has original jurisdiction to prosecute the criminal offence. It is important to note that this proposal is not intended to impose an obligation on member states to accept a request for the transfer of proceedings and it affords member states a wide range of grounds for refusal.

The proposal also introduces obligations with respect to the rights of suspects and accused persons, as well as victims. Authorities in the requesting state must give due consideration to the legitimate interests of the suspect or accused person and those of the victim and should consult with them on the intended transfer of proceedings, where the conditions allow for it, without undermining the confidentiality of investigation.

The proposal will make digital communications channels the default for all cross-border communication between requesting and requested states, in accordance with the digitalisation regulation. It also provides for consultation among member states and co-operation with Eurojust and the European Judicial Network.

While the transfer of criminal proceedings may be necessary in a number of situations, existing measures at EU level do not regulate this form of co-operation. In the absence of a specific EU legal act, member states currently transfer criminal proceedings between themselves using a variety of legal instruments, with no uniform legal framework across the EU. It is expected that this proposal will reduce the level of fragmentation, provide greater legal certainty and eventually increase the number of successfully transferred criminal proceedings.

The Office of the Attorney General has advised there are no legal impediments or constitutional obstacles to Ireland electing to opt in, participate and be bound by this measure pursuant to Protocol 21. My officials will continue to participate actively in the negotiations at working party meetings and to consult with relevant stakeholders in other bodies and agencies to ensure the final text of the regulation works well for Ireland and the EU as a whole.

Criminal activities continue to evolve and are becoming increasingly cross-border in nature. The proposed regulation on the transfer of criminal proceedings in criminal matters will be a useful tool in responding to the emerging challenges that come from that change. The regulation is likely to save time and resources, prevent unnecessary duplication and avoid impunity in cross-border cases. The Government has no hesitation in commending the motion to the House and I hope I will have the support of colleagues in that regard.

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