Wednesday, 14 May 2003
Criminal Justice (Joint Investigation Teams) Bill 2003: Second Stage.
Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea): Joint investigation teams have, for many years, been a feature of international co-operation in investigating cross-border crime, especially organised crime. They have generally been set up on the basis of understandings between the responsible competent authorities, without an internationally agreed framework for establishing and operating the teams. This Bill will enable effect to be given in Irish law to an agreement at European Union level which attempts to ensure that international boundaries are not used by criminal gangs to their advantage.
Organised criminal groups exploit modern day phenomena such as globalisation, an increasingly border-free world and rapid technological advances in computers and communications. They traffic illegal drugs, women and children for forced labour and sexual exploitation, and launder huge amounts of money arising from these activities. Their operations inflict harm on citizens and societies worldwide, as well as threatening economic and social stability.
Crime does not respect national borders. Organised criminals are increasingly more sophisticated and regularly use EU-wide or international networks to carry out their activities. Faced with this reality, EU governments are aware that they cannot effectively tackle international organised crime by relying solely on national law enforcement agencies. At the heart of the European fight against organised crime is better and closer co-operation between the national law enforcement agencies and, in particular, between the national police services. In Vienna, in December 1998, the European Council agreed an action plan on how best to make the Union an area of freedom, security and justice for its citizens. The Tampere European Council took this further in October 1999 by deciding on a comprehensive approach to reinforce the fight against serious organised crime.
This included a number of new initiatives designed to foster practical police co-operation. A European police college, for example, was set up to train the next generation of senior police officers, to enable them to get to know their counterparts in other European countries and to enable them to become familiar with working in a European context. The college has opened initially as a network of national police colleges.
Other Tampere initiatives included the creation of a task force of European police chiefs. This has helped to create personal links between the heads of national police services in EU countries. The chiefs are probably now more willing and able to lift the telephone to discuss practical problems and joint operations with their opposite numbers in neighbouring and nearby countries. The regular meetings of the police chiefs should result in a more spontaneous input, and in closer co-operation, between national police services in the EU member states. Both the training and police chiefs' initiatives should help considerably in the practical implementation of joint investigations of serious crime as envisaged in this Bill.
The European Council was anxious to ensure that maximum benefit should be derived from co-operation between the member states' authorities when investigating cross-border crime in any member state. The Council called for joint investigation teams, as foreseen in the treaty, to be set up without delay, as a first step, to combat trafficking in drugs and human beings as well as international terrorism.
Provision was made in Article 13 of the Convention on Mutual Assistance in Criminal Matters between member states of the European Union for the establishment of such teams. That convention was signed in May 2000. Following the tragic events of 11 September 2001, the Council of the European Union considered that joint investigation teams should be set up as a matter of priority in order to combat offences committed by terrorists and organised crime generally and that a specific and legally binding instrument providing for such teams should be adopted at the earliest opportunity. Accordingly, the text of Article 13 of the mutual assistance convention, together with Articles 15 and 16 which make provision for criminal and civil liability, were brought forward in the form of a framework decision.
All member states agree on the particular need to tackle organised criminals. The European Union has a co-ordinated action plan to cover the years 2000-04. It is designed to put more emphasis on prevention and on reducing drugs demand. However, it also aims to reinforce the fight against organised crime and to strengthen police and customs co-operation. The establishment of joint investigation teams, as necessary, is an essential element in this fight.
Trafficking in persons, especially women and children for sexual purposes, is also an odious crime. Unfortunately, it is widespread and growing. Recent tragic experiences in this country show that we are not immune from being targeted in this respect by organised criminal gangs. Recent successful prosecutions abroad show also the value and the benefit of international co-operation in this area. The provisions of this Bill also interact with a number of the recommendations of the Patten report on policing in Northern Ireland.
The full text of the EU Council framework decision of 13 June 2002 is contained in the Schedule to the Bill. The framework decision provides, by mutual agreement of the competent authorities of two or more member states, for the setting up of joint investigation teams for a specific purpose and limited period, to carry out criminal investigations in one or more of the member states setting up the team.
Section 1 of the Bill defines some of the key terms used throughout the Bill. Section 2 provides that the Commissioner of the Garda Síochána will be the competent authority for the State for the purposes of the council framework decision, except where a judicial authority is required by another state for the making or receiving of a request, in which case the Minister, not the Commissioner, will be the competent authority.
Section 3 deals with the establishment of joint investigation teams by the State where the Irish competent authority is satisfied that an offence has been committed, or that there are reasonable grounds for suspecting that an offence has been committed, in the State and the investigation of the offence or suspected offence has links with another member state or states; that conduct which would constitute an offence if it occurred in the State has occurred, or there are reasonable grounds for suspicion that the conduct has occurred partly in the State and partly in another member state; and that where there are reasonable grounds for believing that it would be in the public interest to establish a joint investigation team because it is anticipated or is the case that at least some part of the investigation will be conducted in the State and the investigation requires co-ordinated and concerted action with another member state or states, it may request the relevant competent authority or authorities of the other member state or states to establish a joint investigation team. Section 4 provides for the establishment of joint investigation teams on receipt of requests from other member states and contains provisions which are similar in nature to those contained in section 3.
Section 5 contains provisions relating to the establishment and termination of joint investigation teams and in relation to the agreement governing the establishment of such teams. A joint investigation team can be established for a specific purpose and for a limited period which can be extended for such periods as are agreed by the competent authorities concerned. A team can operate for as long as is necessary for the purpose of conducting the investigation concerned and parts of the team can operate in more than one member state at the same time. Provision is also made for member states to join a team which has already been established. The agreement to establish the team can be amended to reflect changing needs in relation to any of these matters. The final subsection of this section allows a joint investigation team to be terminated when the purposes for which it was established have been achieved or when there is no further benefit to be gained from its continued operation.
Section 6 deals with membership of a joint investigation team and the terms and conditions of such membership, including remuneration and allowances. National membership can be drawn from the Garda Síochána, Customs and Excise, the Revenue Commissioners, other Departments and persons who, in the opinion of the Minister for Justice, Equality and Law Reform, have experience or expertise relevant to the investigation concerned.
Members of the Garda Síochána and civil servants will continue to be subject to the same terms and conditions of employment as they were subject to immediately before they became members of the team. Provision is made for the removal of members from the team by the Commissioner in the case of members of the Garda Síochána, or by the Minister, at the Commissioner's request, in the case of other team members. Members of the Garda Síochána and officers of Customs and Excise will continue to be vested with and can exercise their Garda or Customs and Excise powers while operating as members of a team.
Section 7 provides for the operation of a joint investigation team. A team will perform its functions in accordance with the law of the state of operation. In Ireland, a team will operate under the control and general superintendence of the Garda Commissioner who will make the necessary organisational arrangements, including the appointment of a team leader. Team members, including seconded members, will perform their functions under the direction and control of the team leader.
While Article 1.6 of the framework decision provides for discretion as to whether or not seconded members of a joint investigation team are to be entrusted with the task of taking certain investigative measures in the host state, it is not intended to provide for such an option in the case of a joint investigation team operating here.
Section 7(4) contains the necessary prohibition. This is in line with the practice being adopted in other member states in respect of the role of seconded members in joint investigation teams. Seconded members may be present, however, when investigative measures are taken, unless otherwise decided by the team leader. Evidence obtained during the course of an investigation will remain in the possession of the Garda Síochána or, if not already in its possession, will be taken into its possession.
Section 7(7), (8) and (9) provide for one of the more innovative aspects of the Bill in that where investigative measures are required by a joint investigation team in one of the member states involved in the team, seconded members can request their own national authorities to take such measures. This means it will not be necessary for the member state of operation to submit a formal request for mutual assistance to another member state. The relevant measures sought will be considered in the member state in question in accordance with the conditions which would apply had the measures been sought in a national investigation. In order to give effect to this, subsection (7) provides that evidence which is obtained directly by a seconded member operating in the State from his or her competent authority of appointment will be considered as if it had been obtained on foot of a mutual assistance request made under section 52 of the Criminal Justice Act 1994. Provision is also made in subsections (8) and (9) for a member of the Garda Síochána who is operating as a seconded member in another member state to make a request, on behalf of the team, for mutual assistance under section 51 of the Criminal Justice Act 1994 or for a search warrant authorising entry, search and seizure under section 55(4) of the Criminal Justice Act 1994.
Another innovative measure is provided for in section 7(11), which allows a member of a joint investigation team operating as a seconded member in another member state to provide to that team information which is available in the State and which is relevant to the investigation being conducted by the team. This will only be possible where it can be undertaken within the scope of national law and within the limits of the team member's competence.
Section 8 deals with the written agreement for the establishment of a joint investigation team and lists the provisions which must be included in any agreement – the parties to the agreement, the purpose for which the team is established, the identity of the person or persons to be investigated, if known, details of membership of the team and financial arrangements. Provision is also made for the agreement to be amended to allow for issues such as the extension of the period of operation, changes of membership, etc.
Section 9 provides for additional assistance and expertise to be provided to a joint investigation team by appropriate persons, or participants, from EU bodies or from authorities of countries other than member states. Participants can be drawn from Europol, bodies established under Title VI of the European Union such as Eurojust, the European Commission or other institutions of the European Union and from authorities of countries, other than member states, which have been designated by the Minister. The role of participants is similar to that of seconded members and like seconded members, they will not be permitted to take investigative measures.
Section 10 amends the Garda Síochána Act 1989 in order to allow the Garda Commissioner to assign a member of the Garda Síochána as a member of a joint investigation team abroad. It also provides for the making of regulations to allow for the registration of his or her death, or of the birth or death of a member of his or her family, while serving in that capacity outside the State.
Section 11 is concerned with the use of information lawfully obtained by any member of a joint investigation team which is not otherwise available to the competent authorities of the member states that established the team. Such information can only be used for the purposes for which the team was established. It may be used in other circumstances, but only where the prior consent of the member state in which such information became available has been obtained or where the member state has been informed. Consent to use of the information for the detection, investigation and prosecution of criminal offences other than those in respect of which the team was established may be withheld where it would be likely to prejudice criminal investigations being conducted in the State or where a request for mutual assistance or co-operation could be refused under the international co-operation provisions of the Criminal Justice Act 1994.
Section 12 makes provision for criminal liability in respect of offences committed by or against seconded members while they are operating in the State as part of a joint investigation team. Specific provision is made for seconded members who are also members of a foreign police force in that they will be deemed to be members of the Garda Síochána for the purpose of criminal liability.
Section 13 provides for the satisfaction of civil claims which may arise from operations carried out by members from another member state operating in the State as part of a joint investigation team and also by Irish members operating abroad. The State will reimburse another member state in full for any amount paid in respect of injury, loss or damage caused by our national members in the performance of their duties as seconded members. The State will also pay compensation or damages or provide any other appropriate remedy for any injury, loss or damage caused by seconded members in the State in the same way as would apply with regard to injury, loss or damage caused by national members. The State may seek reimbursement of any compensation or damages it has paid or other loss incurred from the member state which appointed the seconded members or from third parties who may be liable for injury, loss or damage caused.
Section 14 provides that the Act is without prejudice to any other agreements or provisions that exist regarding the establishment or operation of joint investigation teams. Section 15 is a standard provision providing for the payment of expenses out of moneys provided by the Oireachtas. Section 16 repeals section 5 of the Europol Act 1997 as a consequence of the provisions contained in section 10.
Section 17 is a standard provision dealing with the short title and commencement. As far as commencement is concerned, it would be my intention, and I am sure it is the wish of this House, that the Bill will be brought into effect as quickly as possible, on enactment. That completes my detailed statement on the purpose and main provisions of the Bill which I commend to the House.
I welcome the Minister of State for the debate on the Bill. I will make a number of points about it and I would like the Minister of State to comment on them.
I would welcome any Bill to tackle the problems of organised crime and terrorism, but this Bill makes few changes to the criminal law. It simply provides a statutory basis for the way in which the joint investigation teams will be set up and operate. I wonder whether this has come about as a gesture, internationally, to tackle terrorism, particularly since the awful events of 11 September 2001.
Under current legislation, it is already possible to do what is set out in the Bill. There is nothing stopping our police force investigating matters in another country and forces in other countries can investigate matters here. That co-operation still exists and the Europol system has worked well in that regard. Will the Minister explain how these investigation teams will operate differently from the current system under Part VII of the Criminal Justice Act 1994 and the Europol Act of 1997? I understand that the Bill is not being driven by the Government, but that it came about on foot of a directive from the EU Council framework decision with which we have to deal. I wish to criticise the way the Government has chosen to deal with it.
Section 2 designates the Garda Commissioner as the competent authority. We are all aware of the crime statistics currently available, particularly in respect of violent street crimes. Nobody can deny that Garda resources are over-stretched. That problem was not helped when the Government reneged on its pre-election promise to provide an additional 2,000 gardaí.
This legislation does nothing to address the problem of Garda resources. No provision is made for the allocation of additional resources to enable the Garda to discharge the considerable burden placed upon it by the Bill. Day in, day out, Senators call for measures to be put in place to enable the Garda to carry out its duties more efficiently. The most frequent call is for the recruitment of additional gardaí. What pressure will the legislation put on Garda resources, which are overstretched?
I refer to the duration and cost of investigations. Operationally, the Bill has the potential to result in a proliferation of lengthy, joint investigations consuming considerable Garda time. There is complete flexibility for extending the duration of investigations under section 5(1). The period of extension should be limited to one further term or longer in consultation with the Minister because the Bill could give rise to excessively lengthy investigations. Garda drug operations are fully costed prior to sanction. There are good reasons to provide a costing mechanism under the legislation. I would like the Minister of State to comment on this issue.
Under section 2(1) the Garda Commissioner has been designated as the competent authority but under section 2(2) the Minister shall be the competent authority for the purpose of making requests to competent authorities in other jurisdictions. I cannot understand this. If the Commissioner is capable of being the competent authority, why is he not allowed to be the competent authority for all aspects of the legislation? Does this reflect a rift between the Minister and the Commissioner or a mistrust of the Commissioner? An explanation is needed.
The Minister of State did not mention that this policy was supposed to have been implemented by 1 January 2003. How strong is his commitment to the Bill? Is it the correct mechanism for dealing with investigation teams? Perhaps they would be better dealt with under the proposed Garda Bill. Given that the legislation is late, should we not wait another few months and deal with investigation teams in the correct context?
A significant portion of the explanatory memorandum, particularly sections 3 and 4, reads more like the heads of a Bill and is difficult for ordinary people, including myself, to read. The Law Reform Commission states the text of legislation should not be cited in the explanatory memorandum and that layman's language should be used. Those are the points I have to make. I look forward to the Minister of State's response.
I welcome the Minister of State. As Senator Terry mentioned, he is a frequent visitor to the House which is indicative of the number of Bills emanating from the Department of Justice, Equality and Law Reform. This Bill is to be welcomed as it gives effect in Irish law to the requirements of the EU Council framework decision of 13 June 2002 which resulted from the call at the 1999 European Council for the establishment of joint investigation teams, as envisaged under Article 30 of the Treaty on European Union. Joint investigation teams can be set up by mutual agreement for specific purposes over a limited time by two or more member states.
There has been harmonisation in many areas since Ireland's accession to the European Union which has benefited citizens throughout the Union. There are many fine examples of this such as the Common Agricultural Policy. While farming is going through a difficult period, the harmonisation of agricultural policy has benefited farmers throughout the Union. Harmonisation of competition and consumer legislation has benefited citizens as well as free trade and the free movement of people. Labour law and environmental controls have also been harmonised. Co-operation in law enforcement is welcome while harmonisation of laws within the Union and the protection of citizens are moves in the right direction, which I hope will be fully supported by the Minister of State and his Department.
The legislation is eminently sensible. The criminal fraternity does not allow national borders or boundaries to curtail its activities. Therefore, if law enforcement agents are not allowed to operate on a level playing pitch, they will be seriously disadvantaged. There have been many debates on crime in the House recently and it has been acknowledged by the Garda Commissioner that organised crime is presenting a major challenge to many societies. Ireland is feeling the effects of such crime because of its newly found affluence.
Drugs, for example, are the scourge of many societies, particularly among young people in urban areas. Those involved in the drugs trade are extremely well organised and police activity is often directed at addicts and low-level drug pushers. It is not easy to catch the godfathers, although the Criminal Assets Bureau has provided a role model for other states. The bureau has been effective and I hope there will not be a judicial decision that will hamper its positive activities. Officials from other EU member states have visited Ireland to examine its establishment and operations with a view to employing a similar body within their jurisdictions.
Organised crime operates at international level and all the gangs have strong connections to the drugs trade. The violent nature of the crimes committed is anathema to most and there have been many debates on the issue. Life is a cheap currency in the eyes of those involved in organised crime. There have been gangland murders in Dublin and Limerick, yet members of the drug gangs and their hitmen are free to walk the streets and pose a hazard to ordinary law abiding citizens.
If we compare the reaction to the murder of Veronica Guerin, which was the spur to the setting up of the Criminal Assets Bureau, with the low-level outcry to the assassination of Brian Fitzgerald in Limerick who was playing his part to try to protect young people from the scourge of drugs, it raises questions. One hopes the loss of his life will be treated equally as a milestone in tackling this kind of organised crime.
It is important that the State recognises that its first duty is to protect its citizens. Any legal constraints must not be so tight as to obstruct investigation or detection. In a democracy we must balance this duty against the rights of individuals. Sometimes one feels the pendulum must be reset to cope with the current climate of crime.
We have also seen trafficking in people, to which the Minister of State referred. The problem is continental-wide. In my area, Wexford and Waterford, we have seen the adverse effects of trafficking with the loss of human life when people suffocated in containers. This shows the gay abandon of criminals towards the protection of human life. This issue must be tackled on a cross-border, cross-community basis. The remit and provisions of the Bill will facilitate better targeting.
We have seen recent reports on the burgeoning sex industry where girls, particularly from eastern bloc countries, have been lured abroad to various western European countries, including Ireland. Organised crime is strongly involved. The collapse of the communist regimes in the eastern bloc, while welcomed by all who espouse democracy, has had the adverse effect of involving people, particularly some who were involved in state security, in organised crime. The Russian and eastern bloc mafia present a significant challenge to the European Union. With the accession of countries in that region this problem will require priority and the attention of the Community to ensure mafia tentacles are not strengthened as a consequence of accession.
The events and atrocities of 11 September 2001 shocked the whole world. In response politicians looked to see what they could do. One of their best efforts is absolute co-operation between security forces. The European Union will expand to 25 countries and seek co-operation between police forces. I am concerned that some of the eastern bloc countries were part of left wing socialist totalitarian regimes. It is imperative that the culture which might have pertained in the past and which perhaps the transition has fuelled is not allowed to continue and grow in the future. Any links with crime must be stopped.
We had a discussion not so long ago on the Garda Síochána (Police Co-Operation) Bill which implements the cross-Border aspects of the Patten report. The Bill, for which there was broad support in the House for the measures contained in it, facilitates personnel exchanges between the two police forces and a pooling of investigative teams after major incidents with a cross-Border dimension. It also allows PSNI members to apply for senior positions within the Garda Síochána and the converse. It is part of the ongoing co-operation taking place, an arrangement, I am sure, it will enhance.
I wish to comment on recent public disclosures of events in the North involving the security forces. We have seen part of the Stevens report which shows evidence of collusion between members of the security forces and paramilitaries. The recent reports in regard to an agent called Stakeknife raise fundamental issues regarding the role of the state in the maintenance of law. Some would regard this as better left unsaid, a view to which I do not subscribe. We are at a sensitive stage in the peace process but if we build that process on sand, its sustainability into the future would be in greater danger than it might otherwise be.
I would like to think that the events in which the British state, in particular, was involved will be admitted. There have been many calls for co-operation with the Barron inquiry into the Dublin and Monaghan bombings. While there is a perception that there is a concealment of illegal activity by the state, it undermines the whole process of law enforcement. We must try to reach a situation where people can concede and admit the wrongs done, make the appropriate apologies and then move on, but let us not do so in a vacuum.
I raise these points, particularly what happened in the well developed British democracy over many years and the illegal activity in which that state was involved, and the activities which now present a major challenge within the eastern bloc countries, to see how they can be best addressed in the European Union context. Perhaps the Minister of State will consider a situation where the European Union would establish a regulatory authority which would have an over-arching role with regard to the compliance of enforcement agencies within member states with proper ethical standards and criteria applying. There is a role for the Community to play in that regard. It might obviate some of the points I have made in this debate. In particular, it would obviate the illegal activity and behaviour that should have no place within the law enforcement apparatus of any democratic state. It is important that member states gravitate towards the highest standards of law enforcement across the Community. Where we do not eradicate areas where there is less than that standard pertaining, there is a danger of the whole process falling to the lowest common denominator.
The impact of the Bill will be positive. It will provide a formal structure which will facilitate further police co-operation in criminal investigations. It will assist in improving crime detection, investigation and prosecution of offences. It will also have the effect of ensuring boundaries do not militate against effective co-operation. To be effective, law enforcement must not be unduly inhibited in scope or resources or geographically. I heartily welcome the provisions of the Bill.
I welcome the Minister of State and the Bill, to which Senator Terry has given careful consideration. I look forward to hearing the answers to her questions.
I welcome the Bill as an effort to highlight the fact that criminals should be dealt with through the rule of law, not the rule of force. We have come to a bad stage in world history. In recent months we have seen an attempt to use the rule of military force rather than the rule of law to deal with terrorism, the disastrous and foreseeable consequences of which we can now see.
The invasion of Afghanistan led to nothing other than an increase in the production of drugs in that region. Apart from trafficking in human beings, drugs are apparently the most lucrative business nowadays. To see it promoted is truly dreadful. Unfortunately, all countries, including Ireland, will have to take account of trafficking in human beings, as people are being brought through this country to get to more lucrative markets in other parts of Europe. Anything that will encourage co-operation between police forces to prevent this appalling practice must be applauded.
Will the Bill provide for the establishment of teams drawn from various international police forces to investigate the abduction of children? While this is a private matter, it is surely in the public interest not to allow such episodes to take place. Will the Minister of State indicate his views on the issue?
The war on terrorism was followed by the illegal invasion of Iraq by the United States of America and the United Kingdom, which I bitterly regret. The words of President Mubarak of Egypt have been brought to fruition in the suicide bombings in Riyadh and Chechnya in recent days, which are a continuation of what has been happening in Israel. As the House will recall, President Mubarak said the invasion of Iraq would create 100 bin Ladens. The attacks were to be expected. I very much regret that one Irish national is apparently among those killed in the dreadful outrage in Saudi Arabia.
It is essential that the rule of law is supported internationally. It worries me when I hear President Bush state those who collaborated with the suicide bombings – the bombers are all dead – will be subjected to American justice. Unfortunately, American justice to date has involved sending people to Guantanamo Bay or issuing instructions to catch people dead or alive, as was the case with the soldiers who received the pack of 55 cards distributed in Iraq. Even the President used those words. Fortunately, the people featured on the cards have apparently decided to give themselves up, a much more sensible option than being hunted down.
We must aim to introduce measures to bring police forces together in order that people can be brought before courts. In Europe we have been doing well in rounding up suspects from the various terrorist organisations. The only person convicted in association with the atrocity on 11 September 2001 appeared before a German court, while others have been brought before courts in Spain, the Netherlands and Great Britain. This is the only way to proceed or to try to gain control of world order. Shooting down people who have nothing to do with the various atrocities only breeds more terrorists.
We have a great deal of experience in this area. Despite going backwards and forwards on occasion and the current problems we face, the Governments of both the United Kingdom and the Republic have shown extraordinary courage in much of what they have done. The news that emerged recently, which has been most unedifying in terms of the methods used in some cases, has not been clarified.
I welcome the Minister of State and this valuable legislation which will be a major asset in strengthening the rule of law in the fight against organised crime. As the Minister of State and my colleague, Senator Jim Walsh, outlined, the purpose of the Bill is to give effect in law to a Council framework decision to establish joint investigating teams. Teams will be set up for a specific purpose and a limited period to carry out criminal investigations with a cross-border dimension where one or more member states are involved. This initiative will lend much greater cohesion and co-operation to the concept of fighting international organised crime and send a clear message to those involved that the European Union and its member states, including Ireland as of today, are serious about tracking those involved in terrorism and the trafficking of drugs and human beings.
The events of 11 September 2001 resulted in a new focus on terrorism. America has shown by its actions in Iraq that it is focused on the issue and will tackle it wherever and whenever it raises its ugly head. I hope Europe's commitment in this regard will be seen as serious.
In countries with borders there is always a probability that smuggling will take place. The smuggling of alcohol, petrol and various other commodities, when profitable, has been a feature of our Border between North and South. In the current economic climate trucks containing some of these commodities have started running in the opposite direction. Money laundering and VAT fraud have been a feature of cross-Border criminality here in recent years.
The scale of the problem, particularly drug trafficking, was highlighted late last year when a haul of drugs valued at €25 million was intercepted on its way from Belgium to both parts of this country. The shipment in question was bound for a cell of an organised gang based in both the North and the South which, I understand, had links to both Nationalist and loyalist paramilitaries. Some time after the find I read an article which stated two paramilitary organisations in the North were earning in the region of €8 million and €12 million respectively from organised crime, which gives us an indication of the type of mountain we have to climb.
In giving effect to this Council decision, the Government and the European Union are sending a clear message that we take this matter very seriously. Closer co-operation between police forces, customs authorities and the intelligence services will play a major part in the combined effort. As the Minister of State said, the measures will allow two police forces to set up a joint investigation team for a specific period and with specific terms of reference to carry out a joint investigation in either participating country. In addition, the member of an outside police force working in a second country is given the official status of its police force while investigating a crime. This is a unique and far-sighted measure which will bring about greater co-operation between police forces.
Instead of just talking to someone on the other end of a telephone line, people will now form bonds and friendships. This will create a better cohesive working unit and be a positive step in fighting crime across borders.
The idea of transfers between police forces is not unique to Northern Ireland. I am led to believe there are 40 police services in the United Kingdom with broadly similar terms of reference and conditions of service. Members of such forces can be seconded or arrangements can be made for transfers. They will find it different to move to a strange country.
The success or failure of this initiative in terms of personnel exchanges will depend on the way it is effected. The organisations or authorities which represent the volunteers must be considered when arrangements are made for their transfer. It is important that people transferring to another country know their terms of reference and what to expect and are fully aware of all the elements of their new life. I do not have any doubt that this will lead to greater understanding and appreciation between the two forces, North and South. I know the situation has improved dramatically in recent years but there was a time when friendships were not great. There are personal friendships between members of the police forces, North and South. I hope this measure will help to forge better friendships which would bring about better policing.
Illegal immigrants are a new phenomenon. It is only in recent years that this country has become an attractive destination due to the fact that it is economically viable. The first legislation we considered in relation to these issues was introduced in September 2000 to deal with offences relating to the trafficking of human beings. The discovery of subsequent networks meant we were probably late in trying to catch them or find out how they operated. We were caught on the hop with the level of immigration. At the time we had only a handful working in the immigration section of the Department. We now have in excess of 200 working there with all the necessary infrastructure. The growing number entering the State in articulated trucks is a cause of concern. We remember the tragedy in Wexford when women, children and men, who had had their money taken from them and were shoved into the back of an articulated truck, were forgotten and left to die.
I thank the Minister of State for being in the Chamber and his presentation. The Labour Party broadly welcomes the Bill, which is based on co-operation in criminal law rather than harmonisation of criminal law. It is the right approach to leave intact as much as possible our sovereignty as regards criminal law and the principles which underpin it, while maximising measures at European level regarding criminal investigations. It is important that the courts remain an important part of the picture. Section 11 seems to limit how information obtained by the joint investigation teams can be used. That is a good principle of legal practice. While it is important to be tough on crime, it is also important to respect good legal principles, including fairness, etc.
The Minister of State and Senator Terry have pointed out that we have the ability to set up joint investigation teams. However, it makes sense to set up a legal framework for this. It is necessary to do so in accordance with the EU decision which requires specific and legally binding instruments to underpin the investigation teams. I note that this decision by the Council predated the EU scrutiny Bill. It is important that such Council decisions are previewed by the Oireachtas before they are made. I know this is outside it. The Minister recently attended a meeting of the Joint Committee on Justice, Equality, Defence and Women's Rights to bring to our attention proposals to amend the European convention in relation to the setting up of Europol. It is important that such scrutiny is carried out as much as possible.
I agree with Senator Terry that we must ensure resources are given to the Garda Síochána to do its work under this legislation, which I welcome. Like the Europol Act and other initiatives at European Union level, this measure is necessary. As the Minister of State and other Members said, crime does not respect national borders. Senator Terry raised a number of questions to which I would be interested to hear the Minister of State's response. Having dealt with the Bill on co-operation between the Garda Síochána and the Police Service of Northern Ireland, it seems this legislation does not deal with misdemeanours by members of police forces involved in the joint investigation teams in the same way as the other Bill, although I may have missed the appropriate reference.
I welcome the thrust and purpose of the Bill which no sensible person could oppose. As has been said, crime does not know any boundaries. Large-scale crime is increasingly organised on an international basis and, with international terrorism, must be dealt with. I do not have any difficulty commending the Bill to the House.
Like other Members, I have some concerns with which, I am sure, the Minister of State will be able to deal. It is appropriate to raise them on Second Stage. It would help if the Minister of State could describe the prosecutorial context in which the legislation will operate. When the investigation takes place and there is sufficient evidence produced, will those concerned be prosecuted in Ireland, or will the Irish investigation assist the prosecution elsewhere, or will there be a single composite international authority in the lead country?
I wonder if section 3 is unnecessarily limited where it relates to the setting up of a joint investigative team in jurisdictions where a crime has been committed. I am not in favour of pre-emptive strikes but there is strong reason to believe a policeman in other places would act in cases where a crime was about to be committed or where people who had committed a crime elsewhere were about to enter this country, either to take refuge or commit another crime.
I am a little worried about the designation of a single individual as a competent authority without providing for some form of reporting mechanism or scrutiny. Senator Terry pointed to the interesting dichotomy whereby the Garda Commissioner is the competent authority for one purpose and the Minister is the competent authority for another. It is one of those areas which yearns for a police authority or policing board. There is merit in considering how the exercise of this function could be tied into reporting to a committee of the Houses. Otherwise, there is a danger that ad hoc forces, about which we will not know too much, will be created.
I am concerned, too, about what will happen when one of those involved in such matters causes an offence. We will shortly address the issue of a Garda ombudsman. While I do not wish to anticipate that debate, the Bill relates to the Garda, customs officers and others. It might be sensible to include accountants, forensic experts and police officers from other jurisdictions. A person taking up the position of police officer in this country should be subject to the same regime as the Garda. I wonder whether the logical extension of what we are talking about is adherence to or an extension of the Schengen acquis. I know there are particular difficulties as long as the United Kingdom refuses to become part of it.
If one is co-operating with somebody, one needs to be sure who it is one is co-operating with and that he or she has the same standards and procedures. My colleague suggested that standards, principles and codes of practice should be drawn up at European level which is to be welcomed. It is interesting that at a meeting dealing with conditions for the setting up of joint committees matters such as pen rations and so on were dealt with but not much was said about the methodology and standards required.
The United Kingdom national serious crime squad includes intelligence services, rightly so. It is those sorts of skills that are required because international criminals generally do not give themselves up. There will be a need for covert activity and infiltration to gain information one way or the other. If even a fraction of the allegations currently being made are true, it would cause one to pause for one moment. This could be met by ensuring the protocol for each of the investigations clearly sets out the standards expected, the extent of covert activity, the way in which accomplice evidence is to be dealt with and the dangers of entrapment. It is important we meet the highest standards in this regard.
This is not an appropriate time to talk about resources. That is a debate for another day but it might be a good idea to provide for such an exercise by way of a separate subhead in the Vote in order that ordinary policing is not distorted when an enormous international investigation takes place. Implicit in all this is the ability to share and move information. The development of IT systems for the Garda must be compatible with that for other police forces. I am deeply concerned about the provision of appropriate protocols to minimise the possibility of matters going wrong in covert investigations.
Like other speakers, I am against crime in most of its manifestations. I accept international boundaries are used by organised crime and that with the globalisation of crime, it is inevitable there will be globalisation to match it on the part of police authorities. I understand this and the difficulties imposed by international criminal organisations confronting isolated national jurisdictions. In principle, I completely accept a degree of internationalisation. I do, however, have some hesitations about aspects of the Bill which I will share with Senator Maurice Hayes, who rightly said there should be an independent person involved.
The Minister of State referred to the establishment of a police school, which I welcome, although I do so with certain qualifications or additions. A number of years ago I accepted an invitation to be a gadfly at an international police gathering in Dublin Castle. I did not concentrate on all the wonderful things the police did, rather I concentrated on areas of concern in terms of the way in which policing impacted on the local population and its behaviour. I was able to cite instances of sexual harassment, not only of women but also of men, and the brutalisation of suspects on a racial basis in France and other jurisdictions. Not alone did the police organisations not co-operate, they also actively supported members known to be engaged in criminal acts against innocent members of the public.
I would like the Minister of State to make representations to the appropriate quarters that such a police school, if established, should deal not only with the mechanics of policing and the transmission of information but also with the interface with the public, recognition of human rights and an indication that a severe view will be taken of the violation of citizen's rights while in police custody.
I would like to see the adoption of decent standards by police forces across the globe. By and large, we have such standards in this country or, at least, on this part of the island. However, I share the concern which, I assume, has been expressed by other Members. Although I welcome co-operation with the Police Service of Northern Ireland, the kind of recent revelations about the apparent co-operation between police authorities and criminal elements of a politically subversive nature – including connivance in the murder of innocent citizens – are a matter of grave concern.
This Bill was has been advanced on foot of the growing feeling that the western world, in particular, is confronting a problem of terrorism. This stems from the early entry into force in the EU of the provisions of the mutual legal assistance convention relating to joint investigations teams. I presume it is from this convention that much of this material derives.
The mutual legal assistance convention was agreed in June 2000 after five years of negotiations and its entry into force requires ratification by 15 national parliaments. At yet, no parliament has formally ratified it but the procedure is being pushed ahead. On 16 November last, the permanent representatives of the four member states behind the proposal declared that the framework decision should correspond to that of the original article 13 of the MLA convention which would remove any limitation on the scope of the offences. That is a concern on my part. In light of his detailed knowledge of the workings of the Bill, will the Minister of State indicate if there is a limitation on the scope of the offences contained in the Bill? The phrase used in the MLA convention is "criminal offences that require difficult and demanding investigations having links with other member states". However, during the discussion on the drafting of this prior document – the mutual legal assistance convention – there was much confusion about its scope. The United Kingdom Home Office, in response to this kind of concern, clearly stated that the convention could, as described in the words of the 1959 convention, cover "any crime however minor". I am not sure if this is the situation in the Bill or if there is a limitation on the scope of offences. Whereas I agree with the Minister of State in terms of the kind of crime to which he referred in the early part of his contribution, I would be concerned if these relatively minor areas could be trawled, perhaps for the purpose of political harassment of figures in other member states.
I received a letter this week from someone who lives not too far from the Minister of State's constituency. I have no knowledge of the author, but he seems to be an intelligent person. He alleges that the Garda are placing gay people under surveillance in his area – it is a rural, not an urban, area – for unspecified reasons and that they appear to be collecting information. He is concerned that such information would be permanently placed on the computer network. If this is happening and if it was to occur on a Europe-wide basis, then there is some cause for concern.
Members of joint investigation teams working in a member state other than their own will be regarded as seconded to that force by their national authorities. They can be entrusted to undertake certain investigative measures such as being present at interrogations, etc. Any intelligence seconded agents lawfully come across during the course of investigation in a foreign jurisdiction may be used for any purpose whatsoever, with the consent of the authorities of the member state in which it originated. However, going along with that and referring back to what I said earlier, there seems to be no explicit provision for this to be covered by international data protection law. Will the information gathered by these joint investigation teams be covered by both domestic and international data protection law? It may be that it is and that I have not noticed it, or will it simply be by virtue of the superior enactment of this law that all our legislation will be covered?
There seems to be a provision under the MLA convention not just for European police forces but also – this is specifically mentioned in the discussions, although it is not in the Bill – for similar arrangements and co-operation with the police forces of the United States of America. I am concerned about this because we have seen the way America behaved with regard to international law during the recent Iraq war. We know, for example, that the US is violating the Geneva Convention in its treatment of the prisoners at Guantanamo. The US is probably exporting certain of these prisoners to third countries where they can be properly tortured. We must be careful about the police forces with which we involve ourselves. I referred to the British in Northern Ireland and the French and I now mention my concern about the police forces of the United States of America.
It is one thing to allow these provisions on joint teams to come into effect to investigate terrorist offences. It is quite another to introduce it without any limitation on the scope of offences. One has to wonder how seriously the EU is taking its national parliaments and whether the EU intends to bring any other of the convention provisions into force early, using this simplified procedure.
While I welcome the war against crime, I believe it is appropriate that we raise specific concerns about the possible infringement of the rights of individual citizens in this country. We look to the Minister of State to provide answers to these questions. He may be well able to provide them and I accept that my interpretation of particular matters may be wrong. Alternatively, we may seek to place safeguards in the Bill.
Senator Terry made the point that there were little or no changes in the criminal law in this Bill. The intention of the Bill is not to change criminal law. There is a raft of legislation before both Houses which has the intention of changing, updating and modernising the criminal law. The purpose of this legislation is to provide, as Senator Tuffy said, a legal framework for the establishment of joint investigation teams. It is true that there is co-operation between police forces of different states at present. However, what is lacking is a statutory basis and a legal framework. It is believed that it will operate more efficiently if a legal framework is put in place and if the parameters are set out in law. Senator Tuffy correctly pointed out that this is part of our legal obligations. Ireland, like other member states, is legally obliged to introduce this legislation.
The question of the 2,000 extra recruits to the Garda was raised. I emphasise again that the commitment in the programme for Government is to provide 2,000 extra gardaí over the lifetime of the Government. The Government has another four years to run. A caveat was also put in place that this would be done if resources permit and let us hope that this proves to be the case.
The point was also made that the Bill may put pressure on Garda resources. Crime has to be investigated. Crime which occurs in this country and which has an international dimension, must be investigated in the same way as that which occurs exclusively within our borders. This is simply a mechanism to facilitate such investigations and, I hope, bring them to successful conclusions.
I can see situations where money will actually be saved as a result of what is being put in place in the Bill. If some of those involved in this kind of crime, mainly in this country, originated from another country and had connections in other countries and if we had a mechanism whereby we could bring in the police forces of other countries to assist the Garda, investigations could be speedier and more efficient.
There are a number of innovative provisions in the Bill. For example, seconded members, that is, those coming from in outside, can make requests for information, or request their own national authorities to do something, without having to go through the bureaucratic procedure under the mutual co-operation provisions of the 1994 Act.
Senator Terry asked about the cost of joint investigation teams. It is not possible at this point to give an estimate of the cost of establishment of such a team or involvement in it. The cost will vary depending on issues such as the nature, size and length of investigations into offences, conduct or suspected conduct. This question will be addressed by the member states involved in the agreement setting up the joint investigation team. However, everyone will agree that the benefits to be gained from the establishment of such teams and the fight against terrorism, in particular, will largely outweigh any cost involved.
Senators Terry and Maurice Hayes raised the issue of a dichotomy, as to the reason the Garda Commissioner was the competent authority in one situation and the Minister for Justice, Equality and Law Reform in the other. Where member states specify their judicial authorities rather than chiefs of police as the competent authorities for the purposes of the legislation giving effect to the framework decision, those states will not send or accept requests from the Garda Commissioner. That is the difficulty. It is for this reason that the Minister for Justice, Equality and Law Reform has also been designated as a competent authority for the purposes of the Bill. Other states may designate judicial authorities in accordance with their legislative or constitutional arrangements. If so, they will not deal with the Garda Commissioner, and someone else will have to be appointed as the relevant competent authority, namely, the Minister.
In reply to Senator Terry's question about the deadline, 1 January, the framework decision on joint investigation teams is a relatively recent one, approved on 13 June 2002. Since its publication, work has been ongoing in my Department with a view to preparation of legislation to enable this country to make a decision as quickly as possible. However, as can be seen from the text of the Bill, the establishment of joint investigation teams within member states is not a straightforward matter. Despite the fact that it is already happening in practice, trying to provide for it in law and set parameters is not straightforward. As the framework decision is silent in this regard, many of the practical and procedural matters must inevitably be dealt with in legislation. Extensive consultation was required with the Attorney General, the Garda Síochána and the Revenue authorities, as well as with other Departments and Offices which could be involved in the establishment of joint investigation teams in order to determine the framework which would allow such teams to be established and operate most efficiently. Given the heavy workload in the law reform division of my Department and the office of the parliamentary counsel of the Office of the Attorney General, and the busy Dáil and Seanad schedules since June 2002, it has not been possible to bring the legislation before this House any earlier. I apologise for this.
Senator Terry also inquired how the revised structure would result in improved policing. One benefit, as I said, will be increased speed and efficiency, as is clear in section 7 in the reference to seconded personnel being able to request their own states to do things which need to be done quickly, or get information from their states at short notice. We have specifically excluded seconded members who have been involved in particular investigations. They will be present only as backup, to provide assistance and information. The same will apply to other experts attached to joint investigation teams such as forensic experts or accountants, or even those seconded from other European institutions such as Europol or Eurojust.
Senator Jim Walsh outlined some of the issues arising from perceived wrongdoing by states or state agencies. He will be aware that there is a police inspectorate Bill currently before the Oireachtas which will beef up the complaints system. We will be establishing an ombudsman to replace the Garda Síochána Complaints Board which everyone now accepts is not operating very effectively. This will be a much more robust operation, and we expect the legislation to be brought before this House shortly.
I welcome Senator Jim Walsh's comments and agree with his views. The legislation should assist us in a very significant way in a co-ordinated fight against drugs in an international context, as well as trafficking in people, another crime with a large international dimension and unfortunately a growing crime with which we must deal urgently.
In reply to Senator Henry's point on the investigation of child abduction cases and Senator Norris's query about restrictions on the type of offences that can be dealt with, my Department has considered these matters and the view is that the scope of the Bill should not be restricted in any way. Sensible decisions will have to be taken as to whether a joint investigation team should be set up. A decision to set up such a team, involving police forces, customs services and revenue commissioners from different countries, cannot be taken lightly and will not be taken for petty offences. However, international crime is not limited in its scope, neither should the Bill.
It is not possible to predict at the outset of an investigation, particularly one with an international dimension, exactly what offence or range of offences may have been committed. It would be wrong, therefore, to provide legislation which would preclude participation in a joint investigation team because part of the offence lay outside the scope of our legislation, or to terminate the operation of a joint investigation team for a similar reason. It is for this reason that the legislation goes beyond the minimum requirements set in the framework decision – Senator Norris is correct in that minimum requirements have been set – and permits the investigation of any offence or conduct where there is a cross-border dimension.
Senator Tuffy raised the issue of whether misdemeanours would be dealt with. Section 12 makes provision for criminal liability in respect of offences committed by or against seconded members who are members of a foreign police force while operating in the State as part of a joint investigation team. The officials concerned will be dealt with in the same way as national team members. They will be considered to be members of the Garda Síochána for the purposes of criminal liability. Civil claims are dealt with specifically and clearly in section 13.
Senator Maurice Hayes raised the question of where prosecution would take place. It will take place in the country which takes the initiative in establishing the joint investigation team. We envisage that that will be the country mainly affected by the crime. If there is evidence of offences having been committed in other countries, what will happen in practice is that the seconded members from the countries concerned will be prepared to attend court to give evidence of these offences to reinforce the prosecution's case.
Senator Maurice Hayes and one or two other Senators raised the issue of standards, an issue of which we are very much aware. The disciplinary group on organised crime has agreed a standard agreement for joint investigations which will be used in every case when joint investigation teams are being established. The issue of standards between member states participating in such teams will be addressed in that context.
I thank Senators for their valuable contributions which have certainly given us food for thought. One or two matters have been raised which I intend to discuss with the Minister. I look forward to coming back shortly to take Committee and Report Stages. We need to have this legislation passed and up and running as quickly as possible. I thank Senators for their co-operation in this regard.