Friday, 19 December 2003
European Arrest Warrant Bill 2003: Committee and Remaining Stages.
I am also concerned that section 10 repeatedly speaks of transmissions and there is no mention of receiving them. The Minister is trying to transpose the principle of the postal rule in contract law. I do not believe it is good enough to act on foot of a transmission. What may appear at one end to be a valid transmission may turn out to be a no receipt.
Mr. M. McDowell: I thank Senator Terry for raising this issue and while we have given it some consideration, we have concluded that the distinction between transmission and receipt will not give cause for practical concern. If something is not received in Ireland it will not be acted upon. For example, if someone in Paris thinks he or she is transmitting warrants to us and they are going off into the ether, they will not be acted on in Ireland. It is not essential to provide for the receipt of the warrant, as warrants transmitted but not received will not have any practical effect. We have no obligations in respect of something we do not receive. If something is missing, this is a problem for the transmitting state. There is no possibility of anything adverse happening to anyone unless the document is received in some shape or form.
I propose this amendment as I feel a defendant should be able to make a case as to why a document should not be admitted. As the section is currently worded, documents listed are taken as conclusive evidence. We believe there is no such thing as conclusive evidence following the case of Maher v. the Attorney General.
Mr. M. McDowell: I am grateful to the Senators for raising this issue. This was considered on Report Stage in Dáil Éireann. The operative term in 12(8) is that a document that complies with the subparagraphs "shall be received in evidence without further proof." While people may think this holds for evidence of its contents without further truth, this is not the case. This means that it shall be admissible without further preliminary proof as to whether it is admissible. A document that purports to be a European arrest warrant issued by a judicial authority in the issuing state, or an undertaking, or a copy of such a document, shall be received in evidence without further proof. This means the signature on the document will not have to be proven to belong to, for example, the magistrate in charge of the courts in Milan. An affidavit will not have to be presented to the court concerning the identity of the maker. If there is a doubt about it or somebody suggests that the signature of the man or woman on the bottom of the document is not that of the chief magistrate of Milan or whoever he or she claims to be, the mere fact that it is receivable in evidence without further proof does not mean it becomes conclusive of its contents or that one cannot raise an objection to it. All that is implied is that it can be handed up in court without proving the validity of the signature. If the signature appears to be valid, the court can deal with it on this basis unless somebody raises a substantive objection to it.
I explained at some length in the Dáil that a document's being receivable in evidence without further proof does not mean it is proof of its contents or that nobody is in a position to contradict it. It merely facilitates the capacity to hand it up in court. Sometimes people wonder about this. Apart from circumstances in which a sentence is under discussion, one cannot just hand up a letter from a parish priest, for example, to prove what is in a particular document. If one wants to produce a document, one normally has to prove who made it, where it was made and the validity of the signature, etc. Otherwise it would not be admissible.
In this case we are saying it is admissible until the counsel for the person regarding whom surrender is sought claims the signature on the document in question is not that of the chief magistrate of Milan, for example, and that the document looks as if it did not originate in Italy but in a solicitor's office in Dublin. This allows the court to proceed on the basis that a document is what it appears to be until somebody questions it.
Ms Tuffy: I never dealt with this type of case before, but if an arrest warrant, for example, was subject to the problems identified by the Minister, one would expect it not to be admissible in the first place. Surely one should be able to say in court that such a document is not admissible at all. The Minister is saying one can prove afterwards that it should not have been admitted. This seems to be ignoring a fundamental procedure one should be able to follow in a court case.
Mr. M. McDowell: I follow the Senator's point. However, she should consider what would occur if this provision did not exist. Let us assume she is acting for the Office of the Chief State Solicitor and presents such a document in court. If I were acting on behalf of the person sought to be surrendered and questioned the validity of the signature of the Italian magistrate on the document, the logic would be that the Italian magistrate would have to be produced to prove he or she signed it. Alternatively, witnesses to the magistrate's signing of the document would have to be produced. The ordinary rule of admissibility of evidence is that a document is not admissible at all unless one proves where it came from, who made it and that it is signed by the person required to sign it. If I were to accept Senator Tuffy's point, the whole system would grind to a halt.
We are dealing with a system whereby these documents will be transmissible by fax and capable of being acted upon. This would all be swept away if one had to produce witnesses to the original execution of the document in the Irish courts. I accept what the Senator is saying. One can argue about the validity of a document afterwards but such a document is receivable in evidence. If I said it were not receivable in evidence unless its validity were fully proven, the system would collapse.
This is not the case in respect of our existing arrangement with the United Kingdom, with which we have a rendition arrangement rather than an extradition arrangement. If one gets a warrant from the magistrates in Manchester seeking the extradition of an Irish person to face charges in that city, we do not question whether the signature on the warrant is that of the clerk to the magistrate or somebody on the street outside the Bridewell Garda station who was asked to fill in the blank. If we did so, the procedure would be unworkable. Therefore subsection (8) should not be taken as meaning that these documents cannot be contradicted. Rather, it means that they can be considered and that the court can act on them unless a challenge is made to them. This is a fair way of proceeding.
Ms Tuffy: We are saying the same thing as the Minister. We are not saying one has to provide all sorts of proof. If our amendment were accepted, the text would still use the phrase, "without further proof". I refer to circumstances in which the validity of a document is called into question in court and the court sees good reason not to admit it. What we are saying is not so different to what the Minister is saying the section is intended to do. We are just including a further basic safeguard.
Mr. M. McDowell: I fully accept there is a distinction. The Senator's arrangement would be that one could have an argument whether a document should be admitted in evidence and mine is that a document that purports to be such is admitted in evidence and then can be argued about. I do not believe it makes all that much difference in practice. If the court sees good reason to the contrary against admitting it, it will see good reason to the contrary against acting on it. Nobody's rights are seriously prejudiced by taking the Government's line on this matter.
My party also tabled this amendment on Committee Stage in the Dáil. The section, as worded, will not allow a hearing to be adjourned if it runs into a second day or past midnight. It would be better worded in the manner proposed in our amendment. I would like to hear the Minister's comments on this.
Mr. M. McDowell: I do not propose to accept the Senator's amendment. She is proposing to delete the reference to section 13 in subsection (1) of section 16. Section 13(5)(b) requires the court to fix a date for a hearing for the purposes of section 16 that falls not later than 21 days after the person's arrest. The reference in section 16(1) refers back to this. The requirement sets a date for a hearing arising from a basic element of the new system, the need to respect tighter timeframes. This would not have the effect Senator Tuffy is arguing for, with a decision having to be made on the day with no provision for a second day. A court clearly has the power to extend its own time for consideration of something once the proceedings have started within the period.
"(2)A person shall not be surrendered to an issuing state in respect of an offence where the person is, in the issuing state, liable to be proceeded against or detained in respect of another offence in respect of which the High Court has either refused to order the surrender of the person or not been requested so to order, unless the issuing judicial authority gives an undertaking in writing that the person will not be proceeded against in respect of such other offence.".
This amendment, which the Labour Party also tabled in the Dáil, arises because while section 17, as worded, includes a safeguard regarding other offences, it is not strong enough. The amendment would strengthen the section. It seeks to ensure that a person could not be prosecuted for an offence when the High Court had not agreed to surrender him or her on the basis of that charge. The legislation attempts to do that but the amendment would make this clearer and ensure the person either would not be surrendered or that there would be a guarantee in writing that proceedings would not continue in relation to another offence.
A person shall not be surrendered to an issuing state in respect of an offence where the person is, in the issuing state, liable to be proceeded against or detained in respect of another offence in respect of which the High Court has either refused to order the surrender of the person or not been requested so to order, unless the issuing judicial authority gives an undertaking in writing that the person will not be proceeded against in respect of such other offence.
The amendment seeks to ensure the same effect, but it is unnecessary as current provisions in the Bill cover the matter. I refer in particular to section 22, and, especially subsections (1) and (2), which provide that a person shall not be surrendered under the Act unless, under the law of the issuing state, or on an undertaking in writing, a person who is surrendered pursuant to a European arrest warrant will not be proceeded against for an offence committed before his surrender other than the offence in respect of which he or she was surrendered, as specified in the warrant.
This has the effect the amendment seeks to ensure. Perhaps one has to go hunting for it but it is the same law, which is that if a person is surrendered under a European arrest warranty, the person may not be proceeded against for an offence which is not specified in the warrant. Section 17 effectively states that where a warrant is disaggregated, with some offences proceeded with while others are not, the result is that the warrant is deemed to be for the surviving offences only. It is the same thing.
The Minister knows that a person's home is given special protection under the Constitution. Despite this, section 25 would allow a garda to enter a house without a District Court warrant. This aspect should be addressed and the inclusion of this amendment in section 25(4) will ensure that a garda cannot enter a person's home without a District Court warrant. I hope the Minister accepts the amendment.
Mr. M. McDowell: Section 25(1) deals with gardaí entering any place if they have reasonable grounds for believing a person in respect of whom a European arrest warrant has been issued is to be found in that place. The most important thing is for the garda to get access to the person to be arrested. Section 25(3) deals with a garda entering any place where he or she has reasonable grounds for believing that evidence of or relating to an offence specified in a European arrest warrant, or property obtained by or recovered as a result of or in connection with that offence, is to be found in that place. Under subsection (3), a garda can only enter a dwelling with the consent of an occupier or in accordance with a warrant. The two situations are different and for that reason I will not accept the amendment.
If a garda with a European arrest warrant seeks to arrest a person and he or she sees the person going down the street then the arrest can be made. However, if the person walks into their home must the garda first seek sanction from the District Court even though the arrest warrant allows him or her to arrest that person walking down the street to their home? Does the fact that the person gets behind their hall door mean the garda has to go to the District Court, explain the situation, get documents ready and draft warrants before returning to the house? In certain circumstances I could see that being a reasonable thing to do, but in this case the distinction between subsections (1) and (3) is fairly clear. A garda can only enter a home to arrest a person if he or she believes the person is the subject of a European arrest warrant. Having a separate warrant from an Irish court to the same effect would complicate matters. It would not add to the inviolability of the home if a District Court judge was asked to effectively back the warrant for execution in those circumstances. In practical terms it is better to leave this as it is.
Ms Terry: I accept the picture painted by the Minister of an individual entering his or her home and of gardaí being unable to enter that home. We must ensure that civil liberties are provided for and must provide every safeguard we can for individuals. The inclusion of "(1) or" at subsection (4)(a) would provide as much of a safeguard as is possible for civil liberties.
Mr. M. McDowell: I appreciate the Senator's motive in moving this amendment. Here we are talking about a warrant which has been received by the central authority in Ireland and given to a garda to execute. The Senator suggests that depending where the person happens to be when the garda catches up with him or her, a different set of procedures must be applied. We must balance convenience and efficiency. Therefore, it is better to leave the subsection as it is.
These are technical amendments. I have spoken before about using the active voice, as recommended by the Law Reform Commission. In this context, the active voice has been used in other Bills. It would be helpful to use it for the purpose of consistency and I therefore ask the Minister to accept these amendments.
Mr. M. McDowell: Unfortunately, due to time constraints in the Dáil, it was not possible to deal with all of the Opposition amendments. I did accept some of Deputy Deasy's amendments seeking the use of the active voice. If the Dáil was still sitting and it would not be inconvenient, I would take this back to it. There are two ways of saying the same thing. I agree with the Senator that in accordance with the Law Reform Commission's plain English directives, her amendment would be preferable. However, it is unthinkable that stylistic issues would prevent me from bringing this legislation into effect on 1 January 2004 and I cannot accept the amendments.
The wording of subsection (1)(b) which we propose to amend suggests that a person would not be surrendered under this Act if his or her surrender would constitute a contravention of any provision of the Constitution. This is in keeping with the framework decision highlighted in the speech we heard yesterday on Second Stage. The framework decision allows states to apply their own constitutional rules and does not take away from that in any way.
There is a major exclusion in subsection (1)(b) which we would like to see deleted. That is "(other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38(1)(b) applies),". It is incredible that legislation would make such an allowance or exception. Would it not require a constitutional amendment to do this? Does this inclusion make the legislation unconstitutional or has the Minister considered that aspect? The subsection seems to remove major rights. The subsection should end with the words if "his or her surrender would constitute a contravention of the Constitution". We should not make any allowances. I am surprised that the inclusion in parentheses is included. Why is it there?
Mr. M. McDowell: The qualification of the contravention of the Constitution recognises a number of points. First, European Union law takes precedence over the Constitution. When I, as Minister for Justice, Equality and Law Reform, in a Home Affairs Council meeting come to a framework decision, I know that I cannot agree to it unless the options and discretion provision set out in the last amendment of the Constitution allow me to do so, and I have the authority of both Houses of the Oireachtas to bind Ireland in those circumstances. Our Constitution requires that before I agree to a framework decision which in any way impinges upon the Constitution, I have the authority of both Houses before I commit Ireland to the matter and oblige us to comply under European law. The mechanism for protecting constitutional rights where there is a conflict between them and any framework decision proposed at the European Council is that I must have the prior permission of both Houses of the Oireachtas before I can make such a decision.
Second, the positive list idea is an integral part of the framework decision as it was accepted. The positive list is an exception to the other ruling in the framework decision which is that for an offence to be the subject of a surrender of a person, it must be one where dual criminality applies. In other words, it must be an offence in the requesting country and in the executing state. The positive list is an exception. It could have been argued – there is a case for it in constitutional law texts and decided case law – that it was regarded as a constitutional principle in Ireland that there must be dual criminality and that nobody could be sent out of Ireland to face a charge in some other country unless the activity he or she was charged with would also be an offence under Irish law. I do not say this was a cast iron point of constitutional doctrine here, but nonetheless it was arguable.
Section 37(1)(b) states that a person shall not be surrendered if "his or her surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 38(1)(b) applies),"; in other words, the dual criminality requirement is not there. Effectively, Senator Tuffy's argument is that if dual criminality is required, then no Irish person should ever be extradited where dual criminality does not exist. That would fly in the face of the framework decision as eventually adopted by all member states. It provides for two bases for surrender under a European arrest warrant: first, that dual criminality applied and, second, that the case involved a positive list offence which carried a three year sentence in the requesting country. The Bill, as currently drafted in section 37(1)(b), gives the maximum constitutional protection to Irish citizens, consistent with our obligations under the framework decision to respect the positive list procedure.
It is important to emphasise that section 37 provides very wide and thorough-going protection for Irish citizens. First, it gives any citizen – or, indeed, a person who is not a citizen – the right to object on the grounds that the convention or its protocols would be contravened. It allows them to invoke the Constitution, with the exception of the dual criminality rule and only to the extent that the dual criminality rule is relaxed by the framework decision. It goes on to give additional grounds, under subsection (1)(c), for not surrendering a person if the European arrest warrant was issued in respect of the person for the purposes of facilitating his or her prosecution in the issuing state for reasons connected with his or her sex, race, religion, ethnic origin, nationality, language, political opinion or sexual orientation. Section 37(1)(c)(ii), goes on to outline the circumstances in which a person could resist a warrant by establishing that he or she would get less than fair treatment in the requesting state. Accordingly, one can plead the Strasbourg Convention and the European Convention on Human Rights, the Constitution, improper motive under section 37(1)(c)(i) or likelihood of unfair treatment under section 37(c)(ii). I wonder what other grounds we could have included as a basis for objecting to one's surrender. It is a very broad charter. I commend the Parliamentary Counsel on using the recitals in the arrest warrant, as set out in Part B. Paragraph (12), page 68, states:
This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of those reasons.
As I said in the other House, we have gone as far as we possibly can, while remaining loyal to our obligation to implement the framework decision. We have given every possible protection. It is not a matter on which the right is given to the Garda Síochána or the Minister for Justice, Equality and Law Reform not to back a warrant. Rather, section 37 is a direction to the Irish courts, not merely that they may take these matters into account but, that there is a direct prohibition on any judge in Ireland, including on the Supreme Court, concerning the surrender of any person in respect of whom those factors are present. I do not believe any country in Europe will have as effective a statement of the grounds set out in the recitals as the Irish text. That gives the individual citizen the right, not merely to argue these points before the courts and obtain an independent decision – it directs the courts not to surrender the person if any of those grounds exist. That is as strong as we can make it.
Ms Tuffy: I agree with the Minister's comments on section 37(1)(c), which is very strongly worded and definite in its intention. Basically, the subsection clearly recognises that other European Union countries might not give a defendant equally fair treatment as would be the case in our judicial system. It outlines various rights in this regard. I would have thought we would be particularly protective of our constitutional rights, in accordance with the Minister's stated position of being protective of our legal system by comparison with that of other European countries.
On the one hand, the Minister seems to accept that European countries will act fairly and that constitutional rights will, somehow, be protected in the context of any breach of the Constitution. On the other hand, a sub-section of the Bill recognises the reverse situation – that the judicial system of other European countries might not treat every defendant as it should. That involves a contradiction.
The Bill has come to the House at a very late stage. I refer to the list positive offences as set out Article 2 on page 70. They include "participation in a criminal organisation"– an offence that is not yet in our law; "computer-related crime"– a very broadly worded offence; and "swindling". We are conceding a great deal in this area. From my understanding of the framework agreement, we do not have to make such a concession – we could simply leave the section as the Labour Party has proposed. If the framework decision allows us to avoid detrimental impact on our Constitution, why not take that course?
Mr. J. Walsh: As Senator Tuffy will be aware, we had considerable discussion in the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights on the issues to which she has referred. There is a strong body of opinion that the pendulum has swung too far on the civil liberties side, with the result that some people who should be in prison are walking the streets. In most instances, what is envisaged is the extradition of people for fairly serious offences. My one concern, which appears to be well covered in the Bill, relates to high profile instances of miscarriage of justice in the neighbouring jurisdiction involving Irish people. I do not recall whether any of those related to extradition. However, if that happened, the Bill provides that a case may be made at the extradition hearing for the protection of any individual in that type of situation. I am reasonably satisfied with this but there is a fine balance in ensuring that those who commit offences are brought to justice across the European Union. It is wrong to claim that other EU states do not have equally developed legal systems which recognise the principles of the convention on human rights.
1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.
2. The following offences, if they are punishable in the issuing Member State by a custodial sentence . . . for at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this framework decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant.
A list of positive offences are given in this regard of which murder is one. We have our law of murder and various other states have theirs. We recently amended our laws since I was Attorney General but I understand the rule of death occurring within a year and a day of the act of murder was dispensed with. However, another European country might maintain the rule that death has to be related to the unlawful act by occurring within 366 days. In this scenario, does it make sense that someone is not extradited from Ireland to that member state because its law has this 366 days stipulation? This positive list of offences means that as long as an offence, punishable by a serious penalty in the issuing state, fits into this broad category of offences, there does not have to be direct correspondence between the necessary elements of the crime. Therefore, the 366 day rule for murder that used to apply in Ireland is not central to the issue of murder. Murder is murder across Europe and the manner of its exact definition is not crucially important.
One offence in the Bill that caused me concern at the Council meeting was racism and xenophobia. What is xenophobia? In the discussions on the framework decision on racism and xenophobia, the German delegation was keen that Holocaust denial be included in that term. I argued strongly that one way of looking at racism and xenophobia is that Holocaust denial is a criminal offence, but that in Irish law, Holocaust denial could be legitimately engaged in as part of freedom of speech. There was the case of the English professor getting into trouble when he sued those who accused him of being a denying the Holocaust. Common law countries have a different view.
In section 37 of the Bill, one of the grounds for refusing to extradite persons is that this might breach their constitutional rights. Take the scenario where I cause an advertisement to be placed in an Irish newspaper that circulates in Germany claiming that the Holocaust never happened. If that was considered to be within my constitutional rights of freedom of expression in Ireland, then the mere fact that it would be an offence in Germany does not oblige an Irish court to surrender me if it believes such freedom is a protected constitutional right.
The positive list of offences is an integral part of the framework decision. I respectfully disagree with Senator Tuffy that we are not in a position to opt out of that. We must provide for that positive list of offences but we have done so in a manner that is as tight as possible and as protective of constitutional rights as the framework decision permits us.
Ms Tuffy: I do not accept the Minister's argument because this positive list of offences is broadly worded. The Minister gave the straightforward example of murder offences. However, the Bill states "without verification of the double criminality of the act". The first listed offence is participation in a criminal organisation which is being discussed at the Committee for Justice, Equality, Defence and Women's Rights. There are different opinions as to whether it is desirable to prescribe that type of offence, and if so, what variations should be applied. If an ancillary definition of participation in a criminal organisation is used, the offence could be viewed differently in another State. Senator Jim Walsh asked whether this goes too far on the liberal side which I do not believe it does. Obviously, this legislation needs to be tightened up and we need to ensure it can be implemented. The gist of this legislation is that the more serious the offence, the less right the person should have. Constitutional rights are fundamental and if we can protect them, we should do so.
Mr. J. Walsh: Senator Tuffy incorrectly attributed a statement to me. The whole reason the extradition laws are there is that if a person commits a serious offence that is prescribed in the Bill, then those people can be brought to justice. If a foreign national committed a serious crime in Ireland, then there should be a mechanism to bring that person before the courts where they answer to the charges. The issue is whether we are serious about ensuring that people are brought to justice. In the enlarged Europe, this will become more important. There is a proliferation, particularly in the former eastern bloc states, of the Russian Mafia. These are well-trained individuals that came through the security forces of those countries who will be a serious threat to the rule of law and order across the Union.
Mr. J. Walsh: These criminals do not recognise national frontiers and we owe it to society to have provisions in law that ensure people are not escaping justice on technicalities. In most instances, innocent people have nothing to fear from any of the Bill's provisions. The legal defence during the extradition hearing and the court case in the issuing country can be made to protect the individual's human rights. All countries within the EU subscribe to the human rights declaration. We should not be making it easy for people to escape justice. We must decide whether we are on the side of bringing people to heel for offences they commit or making it easy for criminals to escape justice. There are many who feel there are people walking the streets who should be in jail, as I said earlier. We have seen this in many high profile cases and if we took a straw poll on this among members of the public we would see it confirmed.
Mr. M. McDowell: Senator Tuffy makes a good point, but perhaps she should look at this from the other end of the telescope. She and Senator Walsh sit on the Joint Committee on Justice, Equality, Defence and Women's Rights, and she is about to draft a report which will deal with the question of organised crime. I am expected, as Minister for Justice, Equality and Law Reform, to listen carefully to what that report says and in time deal with the issue through legislation before both Houses.
Whatever balance is decided in the committee, whatever it believes is the correct definition of organised crime, or whatever degree of organisation it requires, will be quite subtle. There will be a great deal of discourse on where civil liberties end and where "big brother" begins. We will need a structured and balanced debate in both Houses of this Parliament as we consider the matter at length.
However, if someone is guilty of an offence here and he goes to France, Spain, Italy or Germany, is it to be the case that we cannot bring him back here because the Bundestag or the National Assembly of France have taken a slightly different view on what constitutes organised crime, and the person's lawyers in France, Germany or wherever say the offence is not covered under dual criminality, that the Irish have a slightly different definition from the second country? This would result in the person getting off scot free, as Senator Walsh said, and swaning around Paris for the rest of his life because we struck a different balance in this issue or stated the offence in different language for good reasons compared to those in other member states. This brings me to the kernel of the matter in this positive list arrangement. If we did not proceed with it we would inevitably be told by Antonio Vitorino, the Justice and Home Affairs Commissioner, that the only answer is to have a common criminal law across the European Union under which there would only be one definition of organised crime or murder. If Senator Tuffy's amendment was accepted people would be able to go free because of the differences between these offences across all the member states.
We cannot have it every way. The non-strict correspondence and the positive list of offences is in the interest of legal diversity across the Union and is a workable system of dealing with that issue. If the members of the committee decide on a definition of organised crime and I and the other Members of the Houses are persuaded by it, and if we and every other member state in the European Union accepted a similar amendment in regard to legislation, it would mean that unless the law was identical across Europe on that issue, nobody would ever be extradited for that offence. That would not be desirable as it would hand the federalists and integrationists in Europe an unanswerable argument that the only way around this is a common criminal law for all Europe which entails a common law of criminal procedure for Europe. Our system of adversarial trial by jury, habeus corpus etc. would be swept aside in favour of a single Code Napoleon, mark II, which would operate right across Europe and many of our civil liberties would go up in smoke.
Mr. M. McDowell: I am not disposed to accept this amendment because the protections in section 37 are adequate as they stand. I do not know what Senator Terry would describe as bad faith, unless it is undermining constitutional rights or rights under the European convention, dealing with a person on a discriminatory basis on the grounds outlined in the Bill, or dealing with them in a way less favourable than that provided for in the Bill.
If a prima facie case could be made to an Irish court that the arrest warrant was a complete invention drawn up in bad faith and was an attempt to get, for example, Senator Terry to Italy by fabricating an hallucinatory case against her, she would be able to resist extradition on a number of grounds. If we were to introduce a separate bad faith argument we would give a very loose escape clause to everybody whereby they could argue a warrant was issued in bad faith. What does that mean? How will it affect cases? The existing protections in section 37 are sufficient.
Mr. McDowell: I will give the Senator an example. Supposing a policeman had beaten me up quite badly in Ireland and prosecuted me for assaulting him. This has happened sometimes, but I hope not too often. I remember a case where I appeared for two individuals who brought a case for malicious prosecution stating that they had not assaulted the policemen, but on the contrary had been badly assaulted by them. They won their case before a jury in the High Court. In that case the accused had to beat off a criminal prosecution and subsequently commence a civil action.
Suppose it was an Italian carabiniere who was fabricating a case against Senator Terry and the Senator had not assaulted the carabiniere but had been assaulted by him and he was trying to hide that fact in exactly the same circumstances. How could the trial of that issue be transferred to the Irish courts? Would the Senator insist that the Irish court examine who struck the first blow etc. before deciding to send her back to Italy to face that case? In that example, if that is allowed as a defence to rendition, the person would say that he or she is alleging that he or she is innocent and was badly beaten up by the police and never touched them and that it is simply a cover up for that. If one is given the right to make that case in Ireland one will effectively force the Italian police to come to Ireland to answer that claim. This would involve the Irish High Court in justice on the basis of "he did, he did not", which is not what this is all about.
This is about trusting the courts in the member states to the extent that is consistent with section 37. It is about saying that we do believe that if one is sent one will get a fair trial and if one can establish that one will not get a fair trial on any of the grounds under section 37 one need not go. However, if we say as a defence along with that that the prosecution is motivated by bad faith, if I was back in the Four Courts it would make many cases very difficult to extradite as it would require the production of all the witnesses in Ireland to overcome the argument and would allow the accused or the person whose rendition is being sought, major scope to fight the case in the Irish courts instead of the foreign courts. If the man for whom I appeared in the case I mentioned had gone to England and claimed he did not want to be returned to Ireland under a European arrest warrant, the only way the two malicious policemen could have got him back in that case would have been to travel to England and have an argument in the English courts about what happened in Ireland on a particular night prior to the case. We must realise this is about mutual recognition of courts. The fundamental arguments in a case must take place where the case is being fought. We cannot have preliminary trials and runs out over the evidence and have an Irish court adjudicate on the credibility or good faith of witnesses as a precondition for sending somebody home.
Mr. M. McDowell: I do not propose to accept this amendment or amendment No. 16. This section provides that where the European arrest warrant has been issued for the purpose of executing a sentence or a detention order imposed by a decision rendered in absentia and the person concerned had not been summoned in person or otherwise notified of the place or date of the hearing which led to this decision rendered in absentia or he or she was not permitted to attend the trial in respect of the offences concerned, surrender shall be made subject to the condition that the issuing state gives an undertaking in writing that, upon being surrendered, the person will be retried for the offence or will be given the opportunity of a retrial, be notified of the time and place of the retrial and be permitted to be present at the retrial.
This reflects the wording of article 5 of the framework decision. The effect of article 5 is that the need for a guarantee of a right to retrial arises only where the original trial was held without the person having been informed. Being absent, for example, due to escape from lawful custody is very different from an absence due to not being informed about the trial.
Somebody on bail during a murder trial could skip bail on the last day during the summing up of the judge. We cannot then allow the jury to be discharged and the trial to halt. In certain circumstances, the trial should be allowed to conclude. In other cases people have shouted and roared in the court and have had to be removed. However, they are given the opportunity to be heard. If a defendant, not as a result of his or her own default, is absent from a portion of a trial he or she should be guaranteed a right of retrial if he or she goes back to the country, but not otherwise.
It would be sufficient for the subparagraph to read, "be retried for that offence". Offering the opportunity for a retrial is very open-ended and would leave the matter hanging over the head of the defendant. As the opportunity of a retrial is a very vague concept, why have it in the legislation? It is sufficient for the section to include an undertaking for a retrial.
Mr. M. McDowell: As it stands it is possible to decide there is no point in having a retrial, as it would go the same way. It obliges the state to give the accused the option of a retrial, but does not oblige it to go through with it regardless of whether the accused says there is no point, as the same conclusion would be reached. We have phrased it in such a way that the requesting state does not have to undertake to have a trial even if the accused does not want it.
46.–A person shall not be surrendered under this Act to serve a life sentence or a sentence of over 20 years, or surrendered on a charge which carries such a sentence as a maximum penalty, unless the issuing state undertakes that the person will be subject to procedures for the review of his or her detention with a view to release after not more than 20 years if the person is not at that stage a danger to the community.".
The purpose of this amendment is to ensure that the legislation reflects article 5.2 of the framework decision. The Minister has outlined how the framework decision was inserted in section 38 as a protection in the legislation and how strong our legislation would be as a result. The same argument could be made about this proposed amendment, which consolidates the rights from the Framework Document into the legislation.
Mr. J. Walsh: This amendment presupposes that the maximum sentence would be 20 years. However, there have been many cases, for example the Moors murders and the recent Soham murders, where society felt a 20 year sentence would be far too lenient for the nature of the offences. Within our laws we should accept that there are criminals whose crimes are so serious that such a limitation should not be imposed. This is particularly true given that only jurisdictions that do not invoke the death penalty are involved. As the only punishment is a custodial one, the Judiciary in any jurisdiction should not be limited in imposing sentence.
Mr. M. McDowell: This is an optional matter for the law of the executing member state. Some member states, particularly Portugal, have this rule. I imagine that this provision was included in Article 5 of the framework decision primarily to facilitate it. Although people may be critical of the system we have in place here, I have not seen any convincing proposals to amend it. I remind Senators that persons convicted of murdering a member of the Garda Síochána, prison officer, diplomat or Head of State are liable to be imprisoned for 40 years without remission. The sentence for such crimes used to be the death penalty before it was made unlawful and unconstitutional. I do not want to begin to unravel this provision without first thinking very carefully about it. It is an option which we are free to choose. We are free to change our position at some future stage. We are not bound to keep this for all time. If Senator Tuffy's argument becomes attractive or persuasive at some future stage, we could adopt the provision she has recommended. I ask the House to bear in mind that a person who murders a policeman faces 40 years in prison, without remission or an entitlement to temporary release. I would prefer to leave the provisions in this area unchanged in such circumstances.
46.–A person who is a citizen of or is ordinarily resident in or otherwise in the opinion of the Minister has a sufficient connection with the State shall not without his or her consent be surrendered under this Act unless the issuing state agrees to transfer the person to the State pursuant to the Transfer of Sentenced Persons Act 1995 as soon as practicable after his or her surrender or sentence as the case may be.".
This amendment is similar to amendment No. 17 and has been tabled to reflect Articles 4.6 and 5.3 of the framework decision. It is slightly different from the other article I mentioned. It seeks to introduce a positive element to the legislation – to guarantee that a person convicted of a crime in another country "who is a citizen of or is ordinarily resident in or otherwise in the opinion of the Minister has a sufficient connection with the State" would be able to return to the State to serve his or her sentence here. I think that is fair from our point of view.
We have expressed concerns about other legal systems but I have particular concerns about prison conditions in other countries. There are certain issues relating to the treatment of foreigners in prisons. I stress that persons who have been convicted would have to serve their sentences – I do not advocate that we should be soft on them. Some persons may not want to serve their sentences here but I imagine that most prisoners would prefer to serve their sentences in their countries of origin. This is particularly true of Irish people. We should include such a positive proposal in our legislation to try to ensure such persons can be repatriated.
Mr. M. McDowell: Under international law, we are party to a convention for the repatriation of prisoners in certain circumstances. Two aspects of this matter should be considered – we are not obliged to send anybody back and we are not obliged to receive anybody. In my short period as Minister for Justice, Equality and Law Reform I have encountered a few cases in which it has been desirable for the Minister to be entitled to refuse, in the interests of public confidence in the administration of justice, to send somebody back to his or her country of origin. Similarly, I sometimes refused to make an order accepting a person who was trying to get back into this country. I have an element of discretion in that respect but this amendment would eliminate it. It would mean that if I raped and murdered a woman while on holiday in Italy, I would be entitled to serve my sentence in Ireland as of right if I fled back here and later became the subject of a European arrest warrant. It may or may not be desirable, depending on the individual case, that I should be repatriated. I can imagine that Italian public opinion might be one of outrage if somebody was repatriated in such circumstances.
Mr. M. McDowell: Yes. These issues have arisen in relatively recent cases. Regardless of whether Senator Tuffy agrees with my argument, my trump card is that to accept this amendment and thereby insert such a precondition would be a breach of the framework decision. The suggestion is not provided for and would amount, in effect, to a repudiation of the obligations we have undertaken under the framework decision.
Ms White: I did not intend to contribute to this debate but, having listened to all of the eloquent speakers, have decided to do so. In the context of this discussion about prisoners, I would like to raise with the Minister the issue of three Irish citizens about to spend their third Christmas in a prison in Bogota, Colombia. I have spent five weeks as an observer at their trial and not seen any evidence to suggest that they are guilty of the charges they face. The judge is expected to make his judgment in January.
Ms Tuffy: Our proposal is much stronger than the contents of Article 5.3 of the framework decision. Did the Minister consider including Article 3 in the legislation? Is he happy that it will happen? Article 5.3 states the "surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State". Can this happen anyway without something being included in the legislation? Is it enough for it to be in the framework decision or does it need to be spelled out in this Bill? I would have thought that in the case of a young person, for example, it would be preferable for such a condition to be in place.
Mr. M. McDowell: Our current repatriation system is treaty based. Generally, our extradition laws do not contain such preconditions. I would be very loathe to accept the principle behind the Senator's amendment. I do not see the reason, if I commit a crime in Italy of the kind I have described, I should have an automatic right to be brought back to Ireland to serve my sentence. It is better to leave it on a discretionary basis.
Mr. M. McDowell: Yes, it is. The Senator is right. I probably overstated the matter. It is probably something we could do but I do not propose to do it. Somebody may be in a position at some future stage to propose that we should do so. I am not keen on the proposition that people should come back to Ireland in such circumstances. I do not see the reason it should apply. Given that we do not have such an arrangement with the United States, Australia, Russia or New Zealand, why should we do it in the European Union context? I do not see the reason we should include in our law that a convicted person automatically has the right to come back to Ireland to serve his or her sentence. In my short term as Minister for Justice, Equality and Law Reform, I have encountered cases in respect of which there would have been very serious public disquiet if such a stipulation had been in place. The public might find it offensive if people convicted of serious crimes in Ireland were allowed to walk straight to the airport to serve their sentences elsewhere.
Mr. J. Walsh: I thank the Minister for bringing the Bill before the House. It would be fair to say it was probably one of the first Bills for some time from the Department of Justice, Equality and Law Reform not to be initiated in this House. The Minister has been particularly amenable to initiating Bills in the Seanad first, which is to be welcomed. I am sure the other spokespersons will agree that he has kept us quite busy during this term. It is appropriate that we wish him, his family and officials a very happy Christmas and prosperous new year. From what I hear, he will keep us busy in the new year, too.
This is important legislation that will, one hopes, ensure that, in the wider European Union, as we become more integrated – I note certain sensitivities about the extent – we will be able to regulate society in the interests of the vast majority in order that those who commit offences will be brought to heel.
The point made regarding the repatriation of prisoners to our jurisdiction and prisons was that it should be done on a discretionary basis. On mainland Europe and here, there have been outcries when it was felt prisoners who had committed serious offences would be sent back to other countries. Senator White referred to certain jurisdictions. Regarding those where human rights violations during imprisonment are more obvious, it is important that the Minister has discretion to deal with such situations.
Ms Terry: I thank the Minister and his staff for being here today. I also thank the Minister of State, Deputy O'Dea, for being with us yesterday. I join Senator Walsh in wishing the Minister and his family a very happy Christmas. They should avail of the break we will have, since there is no doubt that we will be very busy again once we return in the new year.
Let me make one point regarding the repatriation of prisoners. I was surprised when we visited Mountjoy Prison, particularly the women's prison, that there was a young woman there from another European country. I will certainly not identify the individual. She had served one year of a five year sentence. When we asked her whether she would like to return to her own country, she said she could but would rather stay in Ireland, since she was better looked after.
Ms Tuffy: I can confirm that story, since I was there, too. We were talking to the woman concerned. Her dilemma was whether to go back to her own country to be near her family or remain here where she had better opportunities and facilities. Senator White was talking about Mountjoy Prison but the women's prison is very nice. It is a pity that more prisons are not like it. The woman concerned was also very impressed with the educational facilities there. It was very interesting for us to see that someone felt that way, as Senator Terry outlined.
I thank the Minister and also the Minister of State, Deputy O'Dea, for his attendance yesterday. I thank the Minister for his clarifications during the debate and accepting some proposals from the Labour Party in the Dáil. I wish him a happy Christmas and new year and the same to Members of the House, the Cathaoirleach, the staff, and those who record the debates.
Minister for Justice, Equality and Law Reform (Mr. M. McDowell): I thank the Members of the House for their very kind words. I accept the compliments on behalf of the officials in my Department, particularly Mr. Boyle, who is sitting behind me. He should be specified personally as he prepared the Bill with immense care and energy. It is not often that one gets the opportunity to praise public servants but I do so now since the Bill has been prepared to meet our obligations. It is excellent and as good as the State could possibly do under the circumstances.
I thank the Members of the House for the manner in which they have debated this legislation, both yesterday and today, and also for the courteous and kind way in which they debate all of the legislation from our Department. I will reciprocate, if I may, and wish everyone a very happy Christmas and peaceful new year. Members of the Oireachtas have been working very hard, and I regret to say all the signs are that we will have to work even harder in the new year. There is a significant amount of accumulated work for us. I echo the Ceann Comhairle's words in Dáil Éireann that we should look after ourselves, too, sometimes.
Mr. M. McDowell: For a brief half second I was flattered enough to think that this amazing attendance was to see the end of the Bill but then I decided that the truth of it was that the Senators wanted to make sure that I shut up and finished in order that the proceedings could come to an end and we could all have a happy holiday season. I am deeply grateful to Members of this House for the kindness and courtesy that they have shown me during this last period, and also for all the care that they take with all of the legislation put before them.