Wednesday, 18 July 2012
European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Bill 2011: Committee and Remaining Stages
In page 16, before section 23, to insert the following new section:
23.—The following is substituted for section 44 of the Act of 2003—
"44.—(1) A person shall not be surrendered under this Act if:
(a) the offence specified in the European arrest warrant issued in respect of him or her was committed or is alleged to have been committed in a place other than the issuing state, and
(b) the act or omission of which the offence consists does not, by virtue of having been committed in a place other than the State, constitute an offence under the law of the State;
(2) In deciding whether the act or omission of which the offence consists constitutes an offence under the law of the State, the Court shall not have regard to the nationality of the respondent or any other person nor to the particular basis upon which jurisdiction is asserted by the issuing state".".
As I noted on Second Stage of the Bill, I welcome the acknowledgement by the Minister for Justice and Equality that the piecemeal approach to amending the European Arrest Warrant Act 2003 is most unsatisfactory. I also welcome his commitment to initiate a fundamental review of the legislation underpinning our arrest warrant procedures. He acknowledged that certain specific issues arising out of the Supreme Court judgment in the Bailey case have implications for European arrest warrant legislation and stated these will be considered in the context of the overall review. However, we have not been given an indication of the date or timeframe for this fundamental review. Furthermore, the flaw I am endeavouring to address by means of amendment No. 1 is equally urgent to the procedural and technical amendments contained in the Bill.
The ultimate goal of our extradition procedures is to establish a system of surrender based on mutual recognition and respect for the judicial processes and decisions of fellow EU member states, while also ensuring that Ireland is not a safe haven for fugitives from justice. However, having considered the implications of the Supreme Court's interpretation of extra-territorial jurisdiction under section 44 of the European Arrest Warrant Act 2003, I believe Ireland is exposed to that very risk. In discussing the Supreme Court decision in Bailey I do not purport to express a view on the rightness or wrongness of the outcome. The problem that arose in the Bailey case, and which is likely to arise again with the potential for real embarrassment on the part of the State, was that the Supreme Court was tasked with interpreting section 44 and the underlying provision of the framework decision with little or no guidance. In identifying the specific test to be applied in the circumstances of Bailey, which the majority ultimately decided must be informed by the principle of reciprocity, dissenting Mr. Justice Hardiman and Mr. Justice O'Donnell were candid in their criticism of the difficult and obscure drafting of section 44. The dissenting Justices Hardiman and O'Donnell were very candid in their criticism of the difficult and obscure drafting in section 44.
As I stated on Second Stage, I do not purport to be an expert in international extradition law which, I am reliably informed, is conceptually the most difficult part of criminal law. I have done a significant amount of research since Second Stage, however, and I understand there are four categories under which extra-territorial jurisdiction dealing with criminal cases generally fall. They are dealt with in some detail in the submission I made to the Minister prior to the debate on Second Stage. For the benefit of my colleagues in the House, I will summarise them as follows: First, the active personality principle whereby prosecution is based on the nationality of the accused; second, the passive personality principle whereby prosecution is based on the nationality of the victim; third, the protective principle whereby prosecution is based on the protection of national interests; and fourth, universal jurisdiction generally where the crime is considered as being one against the international community or international law. Typically, this involves crimes against humanity and piracy on the high seas.
Following the decision in the Bailey case, with a strict interpretation applied to section 44 and the specific statutory provisions that granted the power to prosecute on an extra-territorial basis, the decision to surrender by Ireland will be made solely on the basis of active personality. Therefore when dealing with a requesting state that asserts jurisdiction on the basis of one of the other principles and where Ireland could not prosecute the crime in analogous factual circumstances, surrender would be refused.
The danger therein in terms of Ireland offering a safe haven from justice, is possibly best demonstrated by following a hypothetical case that I put forward today to share with my colleagues. The fugitive is a German national married to a Spanish woman. They live in France and have a ten-year-old daughter who has Spanish citizenship. While on holiday in South Africa, the fugitive sexually abuses his daughter and the offences come to light when the family return to France. The mother takes the child and moves to Spain, while the fugitive then flees to Ireland. Spain purports to exercise extra-territorial jurisdiction in any sexual offences against a minor. This is on the basis of a universal jurisdiction set out in Ley Orgánica del Poder Judicial. The Spanish authorities obviously have a legitimate interest in prosecuting the offence as it was committed against a Spanish citizen. Moreover, there is no reality to the fugitive being extradited from Spain to South Africa to face trial as the prison conditions in the latter country fall well below the basic norms. A European arrest warrant is issued by the Spanish authorities for the fugitive for the extra-territorial child sex offences that occurred in South Africa. The fugitive is arrested in Ireland and contests his surrender. In light of the decision in Bailey, the courts would have to refuse surrender. The only basis upon which the Irish courts can exercise extra-territorial criminal jurisdiction is section 2(1) of the Sexual Offences (Jurisdiction) Act 1996 which bases jurisdiction on the suspect being either an Irish citizen or ordinarily resident here. As Spain bases its jurisdiction on a form of universal jurisdiction and the fugitive is neither a Spanish citizen nor ordinarily resident in Spain, the highly abstract test of reciprocity contemplated by the Bailey case cannot be satisfied.
I put it to the Minister, therefore, that it is open to the Oireachtas to take a view of the extra-territoriality exception other than one based on reciprocity. I believe that the amendment tabled provides the appropriate legislative intervention to do so. The amendment would give much needed guidance to the Supreme Court. It would make the test simpler - one based on the underlying facts of the offence in question, rather than the jurisdiction upon which the extra-territorial jurisdiction is asserted.
I thank Senator van Turnhout for raising this issue. It was also raised with me and both of us had canvassed for it on Second Stage. I welcome the Minister to the House. Both Senator van Turnhout and I welcomed the Minister's announcement on Second Stage of a comprehensive review of this highly complex area of law. During the Second Stage debate, I asked the Minister when that review was envisaged and he pointed out that it would probably be in the second half of 2013. I think I am right in saying that that was the timing involved. It may be that this amendment should be considered as part of that comprehensive review with the merit of an amendment similar to this one.
Senator Van Turnhout has raised an important point in terms of the effect of the Bailey decision. She has given a helpful, practical example of the difficulty with the abstract test set forward by the Supreme Court in applying this strict view of reciprocity. There is a question about whether the Oireachtas should now review that decision and seek to provide for a different test.
The position as a result of Bailey, as Senator van Turnhout has illustrated, is that it is not open to this State to surrender a non-national to another EU member state for an extra-territorial offence simply because the requesting state asserts jurisdiction on a basis that is alien to Irish jurisprudence. It is a relatively narrow test and one that will inevitably have consequences in other cases, as can easily be envisaged.
The difficulty with its application begs the question as to whether an amendment should be introduced. I look forward to hearing the Minister's view as to whether it will be in this Bill, which as we saw on Second Stage has a relatively limited remit, or as part of the more comprehensive reform that is envisaged. In any case, it is important that it should be considered. I thank Senator van Turnhout for raising it.
I would like to thank Senator Van Turnhout for raising this matter, as well as thanking Senator Bacik for her comments. I also wish to thank the solicitor, James McGill, who presented a very interesting paper on this issue, a copy of which Senator Van Turnhout kindly gave to me. I read it with great interest. I have a great deal of sympathy with the proposal. It may well be that this is a sound proposal with regard to addressing this issue. Unfortunately, however, in the time available it is not possible for me to take the matter on board. There are a number of reasons for that.
Coming back to what I said on Second Stage, a series of amendments has been made to this legislation already. As regards this legislation, which is a difficult and technical area, we have discovered on occasion that there are unintended consequences which result from addressing particular issues. There has not been adequate time for the Attorney General's office to consider the amendment required. More important, I am concerned that, in so far as we can, we meet our international obligations in this area as best we can at the present time.
I am conscious that the Dáil rises tomorrow and if we are to amend this Bill this afternoon and take on board this amendment, in practical terms, this legislation could not then be enacted until the autumn. I think it is urgent that we get our house in order as best we can with regard to the areas the Bill addresses.
It is important that we move away from the piecemeal amendments that we are engaged in. This is yet another piecemeal piece of legislation. While I am in principle favourably disposed to an amendment along the lines being proposed, I believe that its implications for the European arrest warrant legislation can best be addressed in the context of the overall review of the EAW procedure, which I have announced.
I am sure that the proposal and the excellent analysis on which it is based are fully considered. I have read it carefully and, as Minister, I have an obligation to ensure that what is proposed is fully considered by the Attorney General. There must be a reasonable time to consider it, so that we do not effect another change in a rushed manner. It is important that this Bill is enacted in its current form. For those reasons I regret that I cannot accept the amendment.
I am anxious to get to a space where we have an overall piece of legislation incorporating any further reforms that are necessary. It is desirable that it should all be embodied in the one Act. I deliberately gave a date of autumn 2013 because I am conscious of the enormous legislative programme and the pressures on my Department and others for the first six months of 2013 with regard to the EU Presidency. Work is commencing, however, with regard to the overall review. If it turns out that the review can be conducted more quickly or that the Attorney General's office has the capacity to address matters more quickly, I hope there would be a possibility of bringing in the next anticipated Bill somewhat sooner. I do not want to mislead the House in any way, however. I cannot give a guarantee in that regard and autumn 2013 is the safest time to give. I do not want with unnecessary speed to accept an amendment, which on the face of it is reasonable but without the Office of the Attorney General having an opportunity to consider it fully and without us fully ensuring there are not hidden unintended consequences that have not come to mind at this point.
I am disappointed that this has been rejected on the basis that the Attorney General has not had time and because the clock is ticking down. I appreciate the Minister's honesty in saying that. When I tabled the amendment I considered our EU obligations in complying with the European arrest warrant framework. I was very careful with the language used. I appreciate it needs to be considered by the Attorney General, but I fear it puts Ireland in a different situation.
I will outline another hypothetical case. If a group of French oil workers was murdered in an al-Qaeda terrorist attack in a Gulf state, there would be no question of extraditing those suspected of involvement to the Gulf state as it applies the death penalty and its justice and prison system falls far short of the acceptable international norms. Some months later a suspect is identified. He is a national of the Gulf state in question and has fled to Ireland in the meantime. On the basis of the passive personality principle, that is, the French nationality of the victims, France may wish to prosecute the fugitive and, therefore, a European arrest warrant is issued. It is unclear if Ireland would surrender the person in such circumstances. While the Criminal Justice (Terrorist Offences) Act 2005 would appear to allow Ireland to exercise a form of universal jurisdiction in such offences, it could be argued that we should not surrender where we would assert a universal jurisdiction while France would assert jurisdiction on the basis of the passive personality principle.
If we take a similar case that is not terrorist-related, Ireland only exercises extraterritorial jurisdiction for murder in the case of an Irish suspect and not an Irish victim. That being so the fact that France exercises its jurisdiction on the basis of the nationality of the victim would mean that we would need to refuse surrender. This is more or less precisely what happened in the case of Mr. Bailey - albeit a more dramatic example. I feel we are exposing Ireland as a place for fugitives because we do not have clarity on the issue. I obviously admire the work the Minister is doing and I will not press the amendment because he has been honest with me. If I had been told the wording of my amendment had been flawed and I had not done my homework adequately, I would feel that was fair enough. However, I am being told that the clock is ticking down - we are finishing up tomorrow, will not have time to go back to back to the Dáil and will not have time for the Attorney General to consider it. Is that really how we should be legislating? I am extremely disappointed.
Given the obligations on the Government to deliver certain legislation within set timeframes as prescribed by the troika, there is a limit to the amount of legislation that can be dealt with at a particular time. There is a human limit in that regard. I pay tribute to Attorney General and those in her office. The amount of legislation we have been able to produce, for example, through the Department of Justice and Equality, has been as a consequence of extraordinary work and dedication by officials in the Department and in the Office of the Attorney General. One gets to a point where there is a limit to the work that can be completed and it is important that we do things correctly and not in a rushed manner.
If the paper I was handed in this House last week had been received by me two or three weeks earlier, there would have been some additional time available to ensure that everyone who needed to could give consideration to it. I refer not just to me, but also to the Office of the Attorney General. Normally if a major substantive amendment is being proposed to legislation either originating from or being accepted by Government, it is a matter that would be drawn to the attention of Cabinet. There was not an opportunity for that to happen within the timeframe. I need to be careful that we deal with matters correctly.
The examples the Senator has given are interesting. In the context of the complexities of human relationships, it is reasonable to say that an event such as she describes could occur, but the two examples she gives are less likely events in their complexity than other events that may give rise to the European arrest warrant procedure. My priority has to be to implement now the provisions of the Bill that have been dealt with in the other House and are before this House, and not to allow an amendment that has not been given the detailed perusal that is required to be suddenly incorporated into the Bill to the detriment of the Bill being enacted before the Houses adjourn. It is important to implement the reforms contained in this measure. When we return with the more detailed, consolidated Bill, bringing together what will now end up being four pieces of legislation, we will have an opportunity to address not only the issues the Senator has raised, but also certain possible other areas that need to be tidied up in the legislation. That is reasonable.
I come back to the point that if the proposal being made had been received somewhat earlier than it was received, there might have been a capacity to incorporate it. However, we needed to focus on other legislation. While it may not be relevant to this, I can inform Senators that the vetting Bill was approved by Cabinet in its full form yesterday and it will be published on Friday. The Europol Bill was approved by Cabinet yesterday and will probably be published early next week. I am afraid there is a limit to the amount of legislation or amendments that can be considered at any one time.
I fully accept what the Minister says. I will be handing to him today another paper from the solicitor, James McGuill, raising a number of different issues with arrest warrant procedures, which I hope will be considered in the preparation of the consolidated Bill, the announcement of which we all welcome.