European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Bill 2011
Second Stage – Dáil Éireann
Speech by Mr. Alan Shatter, T.D.
Minister for Justice, Equality and Defence
A Cathaoirligh,
I am pleased to introduce this Bill to the House.
The main objective of this Bill is to apply the provisions of the European Arrest Warrant Act 2003 to States other than EU Member States. It also makes procedural and technical amendments to the 2003 Act and the Extradition Acts 1965 – 2001, and gives effect to an EU Framework Decision 2009/299/JHA on the mutual recognition of judgments rendered in the absence of the defendant.
Before dealing with the detail of the Bill I wish to make some general comments on European Arrest Warrant Act itself. I am keenly aware that this is the third Bill to amend the Act since its enactment in 2003. It is worth recalling the circumstances in which the EU Framework Decision on Surrender, which the Act gives effect to, was negotiated. While negotiations on a simplified system of surrender between EU states had been ongoing since 1999, these were given added impetus following the 9/11 terrorist attacks on the United States.
The terrorist attacks not only highlighted the importance of effective EU measures on internal security, but also put enormous pressure on the EU to produce substantial legislative action in a very short period of time. Thus the EAW Framework Decision was agreed with unprecedented speed. The speed of negotiation and the compromises involved resulted in a somewhat less than perfect final text.
In transposing this instrument into Irish law, Ireland, like other Member States, was faced with legislating for a totally new concept of an inter court surrender process. The Bill was, because of the deadline for entry into force, drafted with some haste and was rushed through the Oireachtas.
In these circumstances it is hardly surprising that practical experience of the operation of the EAW combined with Court interpretations of the Act meant that from an early stage the need for amendment became clear.
The Act was amended in 2005 and again in 2009 and is once again being amended now.
I consider this piecemeal approach to be most unsatisfactory. It is unfair to the Courts, legal practitioners, our fellow Member States and indeed the subjects of EAWs themselves. I am initiating a fundamental review of the legislation which will thoroughly examine our EAW procedures to see how they can be simplified and streamlined.
It is likely that the review will take some time and, in the interim, I am anxious to ensure that Ireland is in a position to discharge its international obligations in relation to extradition and surrender. It is for that reason that I am proceeding with this Bill to make those amendments which cannot await the outcome of the review.
The Bill has three main parts. Part 2 of the Bill allows the European Arrest Warrant system to be extended to non-EU states. Part 3 makes a series of amendments to the European Arrest W\arrant Act 2003. Part 4 makes a series of amendments to the Extradition Act 1965.
I will now deal with Parts 2, 3 and 4 in turn.
Part 2
Part 2 enables the provisions of the European Arrest Warrant Act 2003, referred to as the EAW Act, to be extended to non-EU countries. The EAW Act gave effect to the EU Framework Decision on the European Arrest Warrant. It replaced extradition arrangements between EU Member States which were, by and large, conducted on a Government to Government basis with a system of surrender based on arrest warrants issued and executed by judicial authorities of Member States.
The key element of Part 2 is section 2(1). It provides that the Minister for Foreign Affairs and Trade, following consultation with me as Minister for Justice and Equality, may, by order, apply all or any of the provisions of the EAW Act to a non-EU country where there is an agreement between the European Union and that country on surrender.
There is currently one such agreement and that is the 2006 Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway on surrender procedures. Ireland will be in a position to give effect to the Agreement when this Bill is enacted.
The terms of the Agreement are almost identical to those of the Framework Decision on the European Arrest Warrant. Rather than repeat these provisions in detail in a separate statute, I have opted for the approach of enabling the provisions of the EAW Act to be extended by order to third countries. One advantage of this approach is that the provisions of the EAW Act are familiar to the courts and practitioners and have been clarified in numerous judgments over the years.
Also, I understand that agreements similar to the Norway and Iceland Agreement are likely to be concluded by the EU with other countries in the future. The present approach will allow the terms of the European Arrest Warrant Act to be applied to such countries in the future without further primary legislation.
I would point out that any extension of the EAW Act to non-EU countries is subject to some important limitations. Under section 2(3), an order applying the EAW arrangements to a third country may only be made where there is an EU Agreement on surrender in force with that third country. Such an agreement would, of course, require a high degree of mutual trust between the EU and the country concerned. A further limitation is that, under section 2(4), an order applying the EAW Act to a third country must reflect the terms of the agreement it gives effect to.
Part 3
Part 3 contains a number of amendments to the European Arrest Warrant Act 2003.
Since the EAW system came into force in 2004, the number of EAWs received in, and issued by, Ireland has increased year on year.
The seventh and most recent annual report on the operation of the EAW, which I laid before the House, is for the year 2010. It shows that 161 persons were surrendered to other Member States in 2010 –up from 69 in 2009. Of those surrendered, 87 were sent to Poland and 34 were sent to the UK. Ireland received 373 EAWs in 2010, up from 326 in 2009. The offences cited included murder, rape, drugs trafficking, assault and robbery. Ireland issued 51 warrants in 2010 and 26 persons were surrendered to Ireland during the year. While the 2011 figures have yet to be finalised, I understand the upward trend is continuing.
As the volume of warrants increases, officials and practitioners gain greater practical experience of the operation of the EAW system. Also the Courts have had the opportunity to provide important interpretations of the law in their judgments. My Department monitors these developments continuously and, in consultation with the Office of the Attorney General, identifies where amendments to the Act could be made to improve the operation of the EAW.
The amendments in this Part arise from that process. Many of the amendments are of a purely technical or linguistic nature and, rather than detailing all the changes, I will comment on the more substantive provisions.
Section 5 deletes a reference to the EU Framework Decision from the Act, the reason being to clarify that the Framework Decision does not have direct effect in Irish law. There are similar deletions in sections 8, 9, 10, 15 and 16 of the Bill.
Section 6 amends the form of the European Arrest Warrant as part of the transposition into Irish law of the 2009 EU Framework Decision on judgments in absentia. This Framework Decision requires that where the requested person was not present at his or her trial the EAW must contain certain information concerning the proceedings. The amendment provides for this.
Sections 9 and 10 of the Bill contain the most important changes made by this Bill to the EAW Act. These sections amend section 15 and section 16 respectively of the EAW Act. These sections are the heart of the Act and are critical to the operation of the surrender procedure. They set out the procedure the High Court is to follow in ordering the surrender of a requested person. Section 15 applies to cases where the requested person consents to surrender on foot of the EAW and section 16 applies where the person has contested the EAW.
The main purpose of the amendments is to provide a procedure which ensures that at all stages in the surrender process the requested person is subject to the supervision of the High Court.
Within the new section 15, the amended Section 15(3) removes the option for the person whose surrender has been ordered by the High Court to request that the surrender order come into effect early. The original provision created operational difficulties in meeting the time limits specified for the carrying out of the surrender order. However, I now think is desirable to allow for “fast track” surrender where this does not create operational difficulties and I will bring forward an amendment at Committee Stage to provide for this.
The amended section 15(4)(c) will, I believe, bring greater clarity to the position of a person who is placed in custody on foot of an order for surrender.
It provides that where the Court orders the surrender of a person it
must also order that the person be detained for a period not exceeding 20 days by the end of which period the person must, normally, be surrendered. The current text merely provides that the person be committed to prison pending the carrying out of the order.
The amended section 15(4)(d) is important. It provides that if a person is not surrendered by the end of the 20 day period I have just mentioned, the person must be brought before the High Court again as soon as practicable after the deadline passes. Alternatively, if it appears to the Central Authority, which deals with the administrative and logistical aspects of surrender, that it will not be possible to surrender the person by the deadline, the person must be brought before the High Court before the deadline expires.
The amended section 15(5) sets out the powers of the Court in dealing with a person brought before it under the previous subsection. If the Court is satisfied that the person was not, or will not be, surrendered by the deadline due to circumstances beyond the control of Ireland or the issuing state, the Court will, with the agreement of the issuing judicial authority, fix a new surrender date and order the detention of the person for up to 10 days after the new date. This new provision will bring the Act closer to the relevant provisions of the Framework Decision.
A new section 15(5A) is inserted which provides that if the person is not surrendered within 10 days of the new date fixed, he or she must be discharged.
The new section 15(5B) provides that where the period for surrender has expired and the person has not been surrendered, the person will be deemed to be in lawful custody from the expiry of the period up to the appearance before the Court. There will therefore be no period in the process in which the person’s detention will be other than lawful.
Section 15(7) is new and is clarifies that it is within the jurisdiction of the High Court to grant bail to a person where an appeal has been lodged to the Supreme Court against an order for surrender. This had been the subject of some doubt and I think it is best to bring legal certainty to the matter.
Section 10 of the Bill makes a number of amendments to section 16 of the 2003 Act. That section, as I said earlier, deals with procedures where the person has contested the EAW. Many of the amended provisions are identical to those in the amended section 15 and I do not propose to take up the time of the House in repeating my comments on the previous section which apply equally to this section, including where I have indicated a proposed Committee Stage amendment.
I should also point out that having considered the text of 16(4)(b) in the overall context of the substantial amendments to the section I believe it to be no longer necessary or appropriate and I intend to move an amendment at Committee Stage to delete it from the Bill.
Sections 11 to 22 of the Bill make a range of changes to the 2003 Act, including some which are technical in nature or consequential on changes referred to earlier. I will confine my comments to the more important changes.
Section 11 amends section 18 of the EAW Act, which sets out the circumstances and procedure whereby the High Court may postpone the surrender of a person on humanitarian grounds or where the person is being prosecuted for an offence here or is serving a sentence in the State. The new text applies the provisions of the section to all persons serving a sentence in the State whether the sentence was imposed in the State or elsewhere. This means that the section will apply to prisoners who have been transferred here to serve their sentences.
I have been made aware of operational difficulties in the working of this section. I intend to bring forward an amendment at Committee Stage to address the situation.
Section 18 is, as it stands, a purely technical amendment to section 30 of the EAW Act which deals with cases where an extradition request and an EAW are received in respect of a person. However, I should signal that it has been brought to my attention recently that the substantive text of the section could lead to difficulties. I am therefore preparing an amendment for Committee Stage which will address the problem.
Section 19 simplifies the procedure for the issue of a European Arrest Warrant by Irish courts. The present provisions require that the court be satisfied that the person in respect of whom a warrant is sought is not in the State. In practice, this can be difficult to state with absolute certainty and thus the revised provision omits this requirement.
As applications for an EAW can only be made by, or on behalf of, the Director of Public Prosecutions, I believe that the DPP should be in a position to request the issue of an EAW subject only to there being a domestic warrant in existence.
Section 22 amends section 45 of the EAW Act, which sets out the grounds on which the State may refuse surrender if the person to whom the EAW refers was not present at the trial which led to the sentence being imposed. Again, this amendment is part of the transposition of the EU Framework Decision on Judgments in Absentia. I have reflected on this provision and have consulted with the Attorney General and, as a result, I will bring forward an amendment at Committee Stage which will better reflect the relevant provisions of the Framework Decision.
Part 4
I will now turn to Part 4, which amends to the Extradition Act 1965. The Act provides the statutory basis for our extradition arrangements with countries other than Member States of the EU. As with the amendments to the EAW Act, these arise from operational experience and court interpretations.
The most important changes are in section 25, which substitutes sections 15 to 17 of the 1965 Act. The existing section 15, which prohibits extradition where the offence is regarded as having been committed in the State, is not being re-enacted. I believe that the transnational nature of crime nowadays means that a provision such as this is no longer appropriate.
The revised text of section 15 clarifies the position regarding extradition where there are proceedings in contemplation or pending in the State for the same offence as that for which extradition is sought.
I should inform the House that I intend to move an amendment to this section at Committee Stage to provide for more precise wording in the amended text of section 15(1)(b).
The revised text of section 16 deals with persons who are convicted in their absence. I believe it is appropriate that we should have such a provision in our legislation.
The revised text of section 17 clarifies the position on the refusal of extradition where the principle of ‘‘ne bis in idem”, or double jeopardy as it is commonly referred to, applies. It provides that the question of whether a judgment is final or not is to be determined by the law of the state where the judgment was handed down.
The other changes in Part 4 are mainly procedural or technical, including changes that should lead to more efficient handling of extradition applications.
Section 24, for example, repeals a provision in the 1965 Act on evidence by affidavit and will thus address difficulties in practice in dealing with states whose legal systems do not embrace the concept of affidavits.
A further change with a focus on efficiency is section 26, which deals with the documents to support a request for extradition. It provides that a ‘‘reproduction’’ or ‘‘copy’’ of the relevant documents will suffice and allows for the inclusion of identification material with a request for extradition, where it is available.
In similar vein, section 31 extends the range of documents that can be received in evidence without further proof to include any evidence in writing received from a requesting country. It also enables documents to be authenticated by being signed or sealed by the appropriate authority
Section 28 inserts a new provision in the 1965 Act which provides the High Court with a general power to adjourn proceedings under the Act and to remand the person sought in custody or on bail in the course of such proceedings.
Section 30 inserts a new section 36A in the 1965 Act which deals with identification material. It authorises the Garda Síochána to fingerprint, palm print or photograph persons arrested under the Act for the sole purpose of verifying the person’s identity. Identification material of this type is often sent with extradition requests and up to now the Garda Síochána had no power to take similar identification material for comparison purposes. The new section sets out the procedure for taking the identification material, including the use of reasonable force where necessary and authorised.
Before I conclude, I would like to say that, in addition to the proposed Committee Stage amendments already mentioned, I will be proposing some further amendments to various sections of the Bill which are essentially of a linguistic or technical nature.
That concludes my narrative on the Bill. I commend the Bill to the House.