James Browne (Wexford, Fianna Fail) | Oireachtas source

I am pleased to bring the European Arrest Warrant (Amendment) Bill 2022 before the House on Second Stage. The Bill aims to address issues raised by the European Commission in infringement proceedings with regard to the State’s transposition of Council Framework Decision 2002/584/JHA on European arrest warrants and the surrender procedures between member states. Enactment of the Bill will ensure that Ireland will not be referred to the European Court of Justice and it will allow for the closure of the European Union infringement case.

The Bill also makes a number of additional amendments to the existing European Arrest Warrant Act 2003 in order to ensure the continued efficient operation of the European arrest warrant system in this State.

By way of background, any EU member state may use the European arrest warrant system to seek the return of a person who is wanted in that member state in relation to a crime. The warrant may be used to seek the return of the person to stand trial, face sentencing after conviction, or serve a sentence already handed down by a court in that country.

The original European Arrest Warrant Act 2003 transposed EU 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 very successful and is regarded as vital in the fight against crime within the EU.

The 2020 report of the Irish central authority on the operation of the European arrest warrant, published by my Department earlier this year, noted that arrest warrants received and issued during 2020 cited a wide range of offences. Among the principal offences cited were murder; grievous bodily harm; sexual offences, including rape and sexual abuse of children; drug offences; robbery; assault; fraud; and human trafficking. This shows the full scope of serious offences that can be subject to effective criminal law enforcement as a result of the arrest warrant system. The State executed 91 orders for surrender in 2019, involving 79 individuals. In addition, 47 individuals who were the subject of Irish-European arrest warrants were surrendered to the State in 2020.

Senators may wish to note, notwithstanding the departure of the United Kingdom from the EU in early 2020, there is still a European arrest warrant regime in place as a result of the EU-UK Trade and Cooperation agreement. The UK remains the state which is the source of both the highest number of European arrest warrants received and issued by the State by far. A total of 262 warrants were received from the UK in 2020, and a total of 105 warrants were issued by Ireland to the UK.

I will briefly mention some of the main provisions of the Bill. Section 4 amends section 10 of the 2003 Act setting down the general provisions on 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 criminal prosecution will be or is being brought against the person concerned.

Section 4 was drawn up in parallel with section 26(a) of the Bill, which provides for the repeal of section 21A of the 2003 Act. Section 21A, as it stands, 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 section 21A currently represents an additional mandatory ground for non-execution of a warrant that is not provided for 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 7(a) provides 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. Section 7(b) provides that any such release does not prejudice any potential rearrest and surrender and provides that a standard notice is to be added to the Schengen information system to reflect the fact that release has taken place. The Schengen information system is the EU-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 the judicial authority in the issuing state. Subsections (4) to (6) provide for an alternative to that temporary transfer where the person who is the subject of an arrest warrant can be heard by a court in the State on the basis of a request made by the issuing state. Senators 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 in this regard. Accordingly, this section is likely to be the subject of 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 in 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 the 2003 Act. This reflects the case law of the 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 the 2003 Act. This rule is codified in international extradition treaties and states that an extradited person shall not be proceeded against, sentenced, detained or reextradited in the requesting state for any offence committed before surrender other than the offence for which extradition was granted. At present, this rule may be waived by the High Court where certain criteria are met. Section 15 provides that the High Court "shall", not “may”, waive the rule of specialty where the criteria are met, as provided for by EU law. The section also provides a time limit for the High Court’s decision in this area.

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 24 amends section 45 of the 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 at the original proceedings in the issuing state that gave rise to the arrest warrant. The 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 26 provides for repeals, including the proposed repeal of section 37(1)(b) of the 2003 Act. At present, section 37 of the 2003 Act 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 EU framework decision. I am advised that this is required to align Irish law with the EU framework decision and that the remaining references will still ensure that there is no overall change in the level of human rights protection provided by this section.

Apart from the issue of temporary transfers under an arrest warrant, which I mentioned earlier, I wish to advise that I will be tabling a limited number of amendments to the Bill on Committee stage. These will include amendments regarding procedural rights, such as the right to translation of documents and to be advised of the right to legal assistance.

I look forward to Senators’ contributions on this 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 look forward to continuing to work constructively with Senators.