James Browne (Wexford, Fianna Fail) | Oireachtas source

I do not propose to speak to amendment No. 2.

The purpose of amendments Nos. 3 to 5, inclusive, is to delete the words "in that state" in section 4. The need for the amendment arises from the decision of the High Court in the case of the Minister for Justice and Equality v.Giedrius Gustas 2021. It was subject to an Article 267 reference in the Court of Justice of the European Union, ECJ. The High Court ultimately held that section 2(d) of the 2003 Act obliged it to refuse surrender on foot of a European arrest warrant, EAW, issued by Lithuania where Norway had originally handed down the criminal conviction and sentence, even though that conviction was recognised in Lithuania on foot of a bilateral agreement with Norway. This relates to a rewording of the section to a sentence reading imposed "in that state", so it did not cover a sentence imposed in another state that was then transferred. This limitation is not necessary from a policy perspective and the proposed amendment will remedy this.

Amendments Nos. 6 and 8 from Senator Ward are typographical in nature. His view is that it is a subject drafting matter. I will defer to the draftsperson on this matter.

I understand where the Senator is coming from with amendments Nos. 9 and 10 but, again, I do not think there is genuine ambiguity here.

I thank the Senator for his comments on amendment No. 11. Section 7(b) confirms that the position that the release of an arrested person where an EAW is not produced in time does not afford any immunity in respect of surrender and that application may be made to endorse an EAW for execution. I am satisfied that the wording "is received by" is consistent with section 13 of the 2003 Act, which provides for such endorsements.

Amendment No. 51 inserts a new section into the Bill, which will amend section 38 of the 2003 Act in respect of refusal of surrender under that section. It will provide the High Court with discretion to refuse surrender where previously it would have been obliged to refuse surrender. This arises in a number of these amendments. I will, therefore, speak to the general point briefly. The framework decision provides for mandatory refusal grounds in Article 3 and the option of refusal grounds in Article 4. The interpretation taken at the time of transposition was that where the grounds were optional, that was a member state option. Member states could decide that wherever those circumstances arose, surrender would be refused. Subsequent case law of the ECJ held that where grounds are optional, the option must be available for the judicial authority to consider in each case. Accordingly, based on detailed legal advice received, the approach taken in the Act toseveral groundsfor refusal under Article 4 is that the framework decision needs to be changed. In this amendment and, indeed, several others, we are reframing what is currently an obligation to refuse to surrender as an option to do so.It will be for the court to decide whether surrender should be granted, notwithstanding the existence of Article 4 grounds for refusal and under what circumstances justify refusal. This will have regard to the body of EU case law that has emerged in these areas.

Along similar lines, amendment No. 58 amends section 4 of the 2003 Act to provide for an optional rather than a mandatory ground for refusing surrender in respect of certain offences committed outside the issuing state, while amendment No. 61 is a technical drafting amendment.