Brian Lenihan Jnr (Dublin West, Fianna Fail)

The essence of this amendment is to provide for the deletion of section 42(c) of the European Arrest Warrant Act. Section 42 sets out one of the grounds for refusal to surrender a wanted person. It provides that a person shall not be surrendered where the DPP or the Attorney General is considering a prosecution for any offence or where proceedings are being brought in the State in respect of the offence set out in the warrant. Neither of these grounds is being changed. However, the director has sought a review of section 42(c) which provides that where there has been a decision to enter a nolle prosequi or a decision not to bring proceedings in respect of the offence in the warrant, the person may not be surrendered. The director is concerned that this could have undesirable results where the decision not to bring proceedings or to halt any proceedings arises due to insufficiency of evidence or lack of evidence in this jurisdiction, although such evidence or witnesses may be available in the state that has requested the person's surrender.

The existing provision would be workable in a case where all the evidence had been known and available to the Irish authorities when the decision was taken not to bring proceedings or to enter a nolle prosequi. However, a number of circumstances can arise where this is not the case. As a result, an accused person would be able to evade justice in circumstances where there is no good reason, in principle, that he or she should not be surrendered. The most obvious case where this can arise is where there is no evidence available in this jurisdiction or insufficient evidence to warrant the case proceeding. In these circumstances, a decision may be made not to prosecute the person concerned. As currently worded, the paragraph could operate as a bar to a person's extradition for the same offence to a jurisdiction which has the evidence to deal with that person. The provision, as it stands, also creates a difficulty if a decision is not taken to prosecute here because of a lack of evidence without any knowledge that said evidence is or might be available in another jurisdiction.

It might be useful to refer to some examples of the type of circumstances about which the director is concerned. Offences relating to sex tourism or trafficking in persons are among the most notable of these, as are those relating to torture, war crimes or similar offences arising under international conventions. In such cases, Ireland may have jurisdiction to try the offences but the best evidence and witnesses may be located elsewhere. We must not prevent the effective prosecution of such offences. Amendment No. 5 will ensure that a potential barrier to effective prosecutions will be removed.