Alan Shatter (Dublin South, Fine Gael)

I am pleased to introduce the Bill to the House. Its main objective is to apply the provisions of the European Arrest Warrant Act 2003 to states other than EU member states. It also makes procedural and technical amendments to the 2003 Act and the Extradition Acts 1965 to 2001, and gives effect to an EU framework decision on the mutual recognition of judgments rendered in the absence of the defendant.

Before dealing with the detail of the Bill, I have some general comments on the European Arrest Warrant Act which I would like to share with Senators. I am keenly aware that this is the third Bill to amend the Act since being passed in 2003. It is useful to recall the circumstances in which the EU framework decision on surrender, to which the Act gives effect, was negotiated. While negotiations on a simplified system of surrender between EU member states had been ongoing since 1999, they were given added impetus following the 9/11 terrorist attacks on the United States in 2001. The terrorist attacks not only highlighted the importance of effective EU measures on internal security, but also put enormous pressure on the European Union to produce substantial legislative action in a very short period of time. Thus the European arrest warrant framework decision was agreed to with unprecedented speed. The speed of negotiation and the compromises involved resulted in a somewhat less than perfect final text.

In transposing this instrument into Irish law, Ireland, like other member states, was faced with legislating for a totally new concept of an inter-court surrender process. The Bill was, because of the deadline for entry into force, drafted with some haste and rushed through the Oireachtas. In these circumstances, it is hardly surprising that practical experience of the operation of the European arrest warrant, combined with court interpretations of the Act, meant that from an early stage the need for amendment became clear. The Act was amended in 2005 and 2009 and is once again being amended. I consider this piecemeal approach to be most unsatisfactory. It is unfair to the courts, legal practitioners, our fellow member states and the subjects of European arrest warrants. I have already announced that I am initiating a fundamental review of the legislation which will thoroughly examine our European arrest warrant procedures to see how they can be simplified and streamlined. It is likely that the review will take some time and, in the interim, I am anxious to ensure Ireland is in a position to discharge its international obligations on extradition and surrender. For that reason, I am proceeding with the Bill to make amendments that cannot await the outcome of the review.

The Bill has three main parts. Part 2 allows the European arrest warrant system to be extended to non-EU member states. Part 3 makes a series of amendments to the European Arrest Warrant Act 2003. Part 4 makes a series of amendments to the Extradition Act 1965. I will now deal with Parts 2, 3 and 4 in turn.

Part 2 enables the provisions of the European Arrest Warrant Act 2003, referred to as the European Arrest Warrant Act, to be extended to non-EU countries. The European Arrest Warrant Act gave effect to the EU framework decision on the European arrest warrant. It replaced extradition arrangements between EU member states which were, by and large, conducted on a Government to Government basis with a system of surrender based on arrest warrants issued and executed by judicial authorities. The key element of Part 2 is section 2(1). It provides that the Minister for Foreign Affairs and Trade, following consultation with me as Minister for Justice and Equality, may, by order, apply all or any of the provisions of the European Arrest Warrant Act to a non-EU country where there is an agreement between the European Union and that country on surrender. Any extension of the European Arrest Warrant Act to non-EU countries is subject to some important limitations. Under section 2(3), an order applying the European arrest warrant arrangements to a third country may only be made where there is an EU agreement on surrender in force with that third country. I emphasise that the agreement must be one for surrender as opposed to extradition. I have explained that the European arrest warrant replaced extradition arrangements between EU member states with a system of surrender based on arrest warrants issued and executed by judicial authorities of member states.

For an order to be made under Part 2, the agreement with the third country must be one for a judicial system of surrender. I labour this point because, since the Bill was introduced, there has been much ill-informed comment on this provision, within the Oireachtas and beyond, including, I regret to say, by some members of the legal profession. Members of the House are unlikely to labour under the misapprehensions that have affected others on this provision. Nonetheless, I stress that this provision does not enable the European arrest warrant to be extended by ministerial order to, for example, the United States. There is an EU-US agreement on extradition which is very clearly entitled and worded as such and operates on a Government to Government basis. It is not a surrender agreement and, therefore, does not fulfil the requirement of this section. Similarly, the European arrest warrant cannot be applied under this provision to Albania, Zimbabwe or Thailand - to mention but a few of the countries it has been, somewhat fancifully and completely inaccurately, suggested might qualify.

A surrender agreement requires a high degree of mutual trust between the European Union and the country concerned. There is only one agreement that falls within this provision - the 2006 agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on surrender procedures. Ireland will be in a position to give effect to the agreement when the Bill is enacted. The terms of the agreement are almost identical to those of the framework decision on the European arrest warrant. Rather than repeat these provisions in detail in a separate statute, I have opted for the approach of enabling the provisions of the European Arrest Warrant Act to be extended by order to third countries. One advantage of this approach is that the provisions of the European Arrest Warrant Act are familiar to the courts and practitioners and have been clarified in numerous judgments during the years. Also, I understand agreements similar to the Norway and Iceland agreement are likely to be concluded by the European Union with other countries in the future.

The current approach will allow the terms of the European Arrest Warrant Act to be applied to such countries in the future without further primary legislation.

A further limitation on the operation of this Part is that, under section 2(4), an order applying the European Arrest Warrant Act to a third country must reflect the terms of the agreement to which it gives effect. Part 3 contains a number of amendments to the European Arrest Warrant Act 2003. Since the European arrest warrant system came into force in 2004, the number of European arrest warrants received in and issued by Ireland has increased year on year. I laid the annual report on the operation of the European arrest warrant for 2011 before the Houses recently. It shows that Ireland issued 71 warrants in 2011, up from 51 in 2010, and 36 persons were surrendered to Ireland during the year, up from 26 the previous year. Of these, 31 were surrendered by the UK, with the balance being surrendered by five other member states.

It also shows that Ireland received 384 warrants in 2011, up from 373 in 2010, and that 177 persons were surrendered to other member states in 2011, up from 161 in 2010. Of those surrendered, 113 were sent to Poland and 19 were sent to the UK, the balance being sent to 13 other member states. The offences cited in the warrants included murder, sexual offences, drugs offences, trafficking, assault, robbery and fraud.

As the volume of warrants increases, officials and practitioners gain greater practical experience of the operation of the European arrest warrant system. Also, the courts have had the opportunity to provide important interpretations of the law in their judgments. My Department monitors these developments continually and, in consultation with the Office of the Attorney General, identifies where amendments to the Act could be made to improve the operation of the European arrest warrant.

The amendments in this Part arise from that process. Many of the amendments are of a purely technical or linguistic nature and, rather than detailing all the changes, I will comment on the more substantive provisions.

Section 5 deletes a reference to the EU framework decision from the Act, the reason being to clarify that the framework decision does not have direct effect in Irish law. There are similar deletions in sections 9, 10, 15 and 16.

Section 6 amends the form of the European arrest warrant as part of the transposition into Irish law of the 2009 EU framework decision on judgments in absentia. The framework decision requires that, where the requested person was not present at his or her trial, the European arrest warrant must contain certain information concerning the proceedings. The amendment provides for this.

Sections 9 and 10 contain the most important changes made by this Bill to the European Arrest Warrant Act. These sections amend sections 15 and 16, respectively, of the Act. These sections are the heart of the Act and are critical to the operation of the surrender procedure. They set out the procedure the High Court is to follow in ordering the surrender of a requested person. Section 15 applies to cases where the requested person consents to surrender on foot of the European arrest warrant, and section 16 applies where the person has contested the European arrest warrant. The main purpose of the amendments is to provide a procedure which ensures at all stages in the surrender process the requested person is subject to the supervision of the High Court.

Within the new section 15, subsection (3) allows for the fast-track surrender, with the consent of the person sought, where this fast-tracking does not create operational difficulties. Under this subsection, the central authority, which deals with the administrative and logistical aspects of surrender, may request the court to order that an order for surrender take effect at a date earlier than normal where the requested person consents. The authority will only make such an application where it is satisfied that surrender can be carried out by the earlier date. This replaces an existing provision which allowed the person sought to request that the order for surrender take effect earlier than the ten day period specified. This had created operational difficulties in meeting the time limits specified for the carrying out of the surrender order.

The amended section 15(4)(c) will, I believe, bring greater clarity to the position of a person who is placed in custody on foot of an order for surrender. It provides that where the court orders the surrender of a person, it must also order that the person be detained for a period not exceeding 20 days, by the end of which period the person must normally be surrendered. The current text merely provides that the person be committed to prison pending the carrying out of the order. The amended section 15(4)(d) is important. It provides that if a person is not surrendered by the end of the 20 day period I have just mentioned, the person must be brought before the High Court again as soon as practicable after the deadline passes. Alternatively, if it appears to the central authority that it will not be possible to surrender the person by the deadline, the person must be brought before the High Court before the deadline expires.

The amended section 15(5) sets out the powers of the court in dealing with a person brought before it under the previous subsection. If the court is satisfied the person was not, or will not be, surrendered by the deadline due to circumstances beyond the control of Ireland or the issuing state, the court will, with the agreement of the issuing judicial authority, fix a new surrender date and order the detention of the person for up to ten days after the new date. The new provision will bring the Act closer to the relevant provisions of the framework decision.

A new section 15(5A) is inserted which provides that if the person is not surrendered within ten days of the new date fixed, he or she must be discharged. The new section 15(5B) provides that where the period for surrender has expired and the person has not been surrendered, the person will be deemed to be in lawful custody from the expiry of the period up to the appearance before the court. There will, therefore, be no period in the process in which the person's detention will be other than lawful.

Section 15(7) is new, and it clarifies that it is within the jurisdiction of the High Court to grant bail to a person where an appeal has been lodged to the Supreme Court against an order for surrender. This had been the subject of some doubt and I think it is best to bring legal certainty to the matter.

Section 10 makes a number of amendments to section 16 of the 2003 Act. This section deals with procedures where the person has contested the European arrest warrant. Most of the amended provisions are identical to those in the amended section 15 and I do not propose to take up the time of the House by repeating my comments on the previous section which apply equally to this section.

Sections 11 to 24, inclusive, make a range of changes to the 2003 Act, some which are technical in nature or consequential on changes referred to earlier. I will confine my comments to the more important changes.

Section 11 substitutes the text of section 18 of the European Arrest Warrant Act, which sets out the circumstances and procedure whereby the High Court may postpone the surrender of a person on humanitarian grounds or where the person is being prosecuted for an offence here or is serving a sentence in the State. In the substituted text these grounds are unchanged. However, the new text provides that, where the court has ordered postponement, it shall subsequently make an order ending the postponement when, in effect, it is satisfied the grounds on which it was ordered no longer exist. When postponement ends, the provisions of sections 15 or 16, as appropriate, will apply. Thus, from the making of the order ending postponement, the person is treated as if their surrender had been ordered on the date that postponement ended. I believe this is a simpler procedure than the present system. Most important, it ensures there is judicial supervision of the requested person at all stages of the process which I have highlighted as a key feature of my reform of the surrender process generally.

Section 18 substitutes the text of section 30 of the European Arrest Warrant Act, which deals with cases where both an extradition request and a European arrest warrant are received in respect of a person. The substituted text sets out more clearly my role, as Minister, and that of the High Court, as executing judicial authority for the purposes of the European arrest warrant, in cases where both a European arrest warrant and an extradition request are received for a person. The text more accurately reflects the provisions of the framework decision on the European arrest warrant relating to such situations.

Section 19 amends section 33 of the European Arrest Warrant Act which deals with the issue of European arrest warrants by an Irish court. It simplifies the procedure considerably. The current provisions require that the court be satisfied the person in respect of whom a warrant is sought is not in the State. In practice, this can be difficult to state with absolute certainty and thus the revised provision omits this requirement. As applications for a European arrest warrant can only be made by, or on behalf of, the Director of Public Prosecutions, I believe the DPP should be in a position to request the issue of a European arrest warrant subject only to there being a domestic warrant in existence.

Section 22 amends section 42(b) of the European Arrest Warrant Act which deals with the position where there are proceedings in the State against a requested person. It is a linguistic change recommended to me by the Attorney General in the light of judicial comments on the current wording. The section now provides that a person shall not be surrendered if "proceedings are pending" against the person in the State rather than "proceedings have been brought". I believe the substituted language is more accurate and precise.

Section 23 amends section 45 of the European Arrest Warrant Act, which sets out the grounds on which the State may refuse surrender if the person to whom the European arrest warrant refers was not present at the trial which led to the sentence being imposed. Again, the amendment is part of the transposition of the European arrest warrant decision on judgments in absentia to which I have referred. The new text provides that in an in absentia case a person will not be surrendered unless the European arrest warrant states the matters set out in the European arrest warrant form as amended by the framework decision. To be absolutely clear as to what is required, the substituted text sets out that part of the European arrest warrant form as a table to the section.

Section 24 substitutes the text of section 45C of the 2003 Act which provides that surrender shall not be refused on the grounds of a technical flaw in an application provided this would not cause an injustice to the requested person. In the substituted text I am further strengthening the protection for the requested person where the provision is applied. The revised text of subsection (b) now provides that where there is a variance between any document grounding an application, and the evidence adduced on the part of the applicant at the hearing of the application, the court cannot apply the provision unless it is satisfied that such variance is explained by the evidence.

I now turn to Part 4 which amends the Extradition Act 1965. The Act provides the statutory basis for our extradition arrangements with countries other than member states of the European Union. As with the amendments to the European Arrest Warrant Act, these arise from operational experience and court interpretations. The most important changes are in section 27, which substitutes sections 15 to 17, inclusive, of the 1965 Act. The existing section 15, which prohibits extradition where the offence is regarded as having been committed in the State, is not being re-enacted. I believe the transnational nature of crime nowadays means that a provision such as this is no longer appropriate. The revised text of section 15 clarifies the position regarding extradition where there are proceedings in contemplation or pending in the State for the same offence as that for which extradition is sought. The revised text of section 16 deals with persons who are convicted in their absence. I believe it is appropriate that we should have such a provision in our legislation. The revised text of section 17 clarifies the position on the refusal of extradition where the principle of ne bis in idem, or double jeopardy as it is commonly referred to, applies. It provides that the question of whether a judgment is final is to be determined by the law of the state where the judgment was handed down.

The other changes in Part 4 are mainly procedural or technical, including changes that should lead to more efficient handling of extradition applications. Section 26, for example, repeals a provision in the 1965 Act on evidence by affidavit and will thus address difficulties in practice in dealing with states whose legal systems do not embrace the concept of affidavits. A further change with a focus on efficiency is section 28, which deals with the documents to support a request for extradition. It provides that a reproduction or copy of the relevant documents will suffice and allows for the inclusion of identification material with a request for extradition, where it is available. In similar vein, section 33 extends the range of documents that can be received in evidence without further proof to include any evidence in writing received from a requesting country. It also enables documents to be authenticated by being signed or sealed by the appropriate authority.

Section 30 inserts a new provision in the 1965 Act which provides the High Court with a general power to adjourn proceedings under the Act and to remand the person sought in custody or on bail in the course of such proceedings. Section 31 inserts a new provision in section 29 of the Extradition Act which provides that a court may make an order for extradition even if there is a technical flaw in an application provided this would not cause an injustice to the requested person. This mirrors a provision in similar terms in the European Arrest Warrant Act.

Section 32 inserts a new section 36A in the 1965 Act which deals with identification material. It authorises the Garda Síochána to fingerprint, palm print or photograph persons arrested under the Act for the sole purpose of verifying the person's identity. Identification material of this type is often sent with extradition requests, and up to now the Garda Síochána had no power to take similar identification material for comparison purposes. The new section sets out the procedure for taking the identification material, including the use of reasonable force where necessary and authorised.

Before I conclude, I would like to say something about the Tobin case which was recently decided by the Supreme Court. As the House will be aware, the tragic case related to the death of two young children aged just two and five years in Hungary. It was an appalling case and I know that all Members will feel great sympathy for the children's parents who have suffered such immeasurable loss.

I will address the practicalities of the case. Ultimately, decisions in relation to surrender under the European arrest warrant system are a matter for the courts. This particular case has been before the Supreme Court twice. The Hungarian authorities issued a European arrest warrant in respect of Mr. Tobin in 2005. Surrender was refused in the High Court on the basis that Mr. Tobin had not fled the jurisdiction which was a requirement of the Act at that time. The State appealed the decision to the Supreme Court which affirmed the High Court decision.

As a consequence of the Supreme Court decision, the legislation was amended to remove the fled requirement in respect of persons sought to serve a sentence in the issuing state. The fled requirement was removed on legal advice as it was an elaboration in Irish law that was not mandated by the framework decision on the European arrest warrant. Once the Act was amended, it was open to the Hungarian authorities to issue another European arrest warrant in respect of Mr. Tobin. The High Court ordered the surrender of Mr. Tobin to Hungary based on the new warrant, but this was appealed to the Supreme Court. The Supreme Court reversed the findings of the High Court and refused to surrender Mr. Tobin, holding that to do so, following the previous proceedings in which he was successful, would amount to an abuse of process and that, under the Interpretation Act 2005, which limits the retrospective application of amended legislation, the amendment to the European Arrest Warrant Act 2003 did not apply to Mr. Tobin. The House will appreciate that in those circumstances, no further action is open to me in relation to securing the surrender of the person concerned.

In recent days the Hungarian Minister for Justice has written to me reiterating his concerns, and there has been some contact with the European Commission about the matter. There will be ongoing contacts in this regard but I would be doing a disservice to a family which has suffered so much if I were to hold out any hope that their wishes can be met. I greatly regret there is no further appropriate action that can be taken under Irish law.

That concludes my narrative on the Bill and I commend the Bill to the House. I appreciate the Bill and its contents are matters of some complexity, particularly in the context of the trilogy of legislation that exists in this area. I hope Members of the House will support the principles behind the Bill and I look forward to hearing what they have to say.