European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Bill 2011, Second Stage – Seanad Éireann, 10 July 2012, Speech by Mr. Alan Shatter, T.D., Minister for Justice, Equality and Defence
Check Against Delivery
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 on the mutual recognition of judgments rendered in the absence of the defendant.
Before dealing with the detail of the Bill, I have some general comments on the European Arrest Warrant Act itself which I would like to share with you. I am keenly aware that this is the third Bill to amend the Act since its enactment in 2003. I think it is useful to recall the circumstances in which the EU Framework Decision on Surrender, to which the Act gives effect, was negotiated.
While negotiations on a simplified system of surrender between EU states had been ongoing since 1999, they were given added impetus following the 9/11 terrorist attacks on the United States in 2001.
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 have already announced that 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 Warrant 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 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
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.
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. I want to emphasise that the agreement must be one for surrender.
That is to say surrender as opposed to extradition. I explained earlier that the EAW replaced extradition arrangements between EU Member States with a system of surrender based on arrest warrants issued and executed by judicial authorities of Member States.
For an order to be made under Part 2, the agreement with the third country must be one for a judicial system of surrender.
I labour this point because, since the Bill was introduced, there has been much ill-informed comment on this provision, both within the Oireachtas and beyond, including, I regret to say, by some members of the legal profession.
Members of this House are unlikely to labour under the misapprehensions that have affected others on this particular provision. Nonetheless, I want to stress that this provision does not enable the EAW to be extended by Ministerial order to, for example, the US. There is an EU – US Agreement on Extradition which is very clearly entitled and worded as such and operates on a Government to Government basis. It is not a surrender agreement and therefore does not fulfil the requirement of this section. Similarly, the EAW cannot be applied under this provision to Albania, Zimbabwe or Thailand -- to mention but a few of the countries which it has been, somewhat fancifully, and completely inaccurately, suggested might qualify.
A surrender agreement, of course, requires a high degree of mutual trust between the EU and the country concerned. There is currently only one agreement which falls within this provision 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.
A further limitation on the operation of this Part 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 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.
I laid the annual report on the operation of the EAW for 2011 before the House recently. It shows that Ireland issued 71 warrants in 2011, up from 51 in 2010, and 36 persons were surrendered to Ireland during the year, up from 26 the previous year. Of these, 31 were surrendered by the UK with the balance being surrendered by five other Member States.
It also shows that Ireland received 384 warrants in 2011, up from 373 in 2010 and that 177 persons were surrendered to other Member States in 2011 –up from 161 in 2010. Of those surrendered, 113 were sent to Poland and 19 were sent to the UK, the balance being sent to 13 other Member States.
The offences cited in the warrants included murder, sexual offences, drugs offences, trafficking, assault, robbery and fraud.
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 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 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 subsection 15(3) allows for "fast track" surrender, with the consent of the person sought, where this fast-tracking does not create operational difficulties. Under this subsection, the Central Authority, which deals with the administrative and logistical aspects of surrender, may request the Court to order that an order for surrender take effect at an earlier date than normal where the requested person consents. The Authority will only make such an application where it is satisfied that surrender can be carried out by the earlier date. This replaces an existing provision which allowed the person sought to request that the order for surrender take effect earlier than the 10 day period specified. This had created operational difficulties in meeting the time limits specified for the carrying out of the surrender order.
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, 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. Most 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.
Sections 11 to 24 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 substitutes the text of 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.
In the substituted text these grounds are unchanged. However the new text provides that, where the Court has ordered postponement it shall subsequently make an order ending the postponement when, in effect, it is satisfied that the grounds on which it was ordered no longer exist.
When postponement ends, the provisions of section 15 or 16, as appropriate, will apply. Thus, from the making of the order ending postponement the person is treated as if their surrender had been ordered on the date that postponement ended.
I believe this is a simpler procedure than the present system. Most importantly, it ensures that there is judicial supervision of the requested person at all stages of the process which I have highlighted as a key feature of my reform of the surrender process generally.
Section 18 substitutes the text of section 30 of the EAW Act, which deals with cases where both an extradition request and an EAW are received in respect of a person. The substituted text sets out more clearly my role, as Minister, and that of the High Court, as executing judicial authority for the purposes of the EAW, in cases where both an EAW and an Extradition request are received for a person. The text more accurately reflects the provisions of the Framework Decision on the EAW relating to such situations.
Section 19 amends section 33 of the EAW Act which deals with the issue of EAWs by an Irish Court. It simplifies the procedure considerably. 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 42(b) of the EAW Act which deals with the position where there are proceedings in the State against a requested person. It is a linguistic change recommended to me by the Attorney General in the light of judicial comments on the current wording. The section now provides that a person shall not be surrendered if proceedings are pending against the person in the State rather than have been brought. I believe the substituted language is more precise.
Section 23 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 which I have referred to previously.. The new text provides that in an ‘in absentia’ case a person will not be surrendered unless the EAW states the matters set out in the EAW form as amended by the Framework Decision. So as to be absolutely clear as to what is required, the substituted text sets out that part of the EAW form as a Table to the section.
Section 24 substitutes the text of Section 45C of the 2003 Act which provides that surrender shall not be refused on the grounds of a technical flaw in an application, provided that this would not cause an injustice to the requested person.
In the substituted text I am further strengthening the protection for the requested person where this provision is applied. The revised text of subsection (b) now provides that where there is a variance between any document grounding an application and the evidence adduced on the part of the applicant at the hearing of the application, the Court cannot apply the provision unless it is satisfied that such variance is explained by the evidence.
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 27, 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.
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 26, 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 28, 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 33 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 30 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 31 a new provision in section 29 of the Extradition Act which provides that a Court may make an order for extradition even if there is a technical flaw in an application provided that this would not cause an injustice to the requested person. This mirrors a provision in similar terms in the EAW Act.
Section 32 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 something about the Tobin case which was recently decided by the Supreme Court. As the House will be aware, this tragic case related to the death of two young children, aged just 2 and 5, in Hungary.
This was an appalling case. I know that all Members will feel great sympathy for the children's parents who have suffered such immeasurable loss.
To address the practicalities of the case - Ultimately, decisions in relation to surrender under the European Arrest Warrant system are a matter for the courts. This particular case has been before the Supreme Court twice. The Hungarian authorities issued a European Arrest Warrant in respect of Mr Tobin in 2005. Surrender was refused in the High Court on the basis that Mr Tobin had not fled the jurisdiction, which was a requirement of the Act at that time. The State appealed that decision to the Supreme Court which affirmed the High Court decision.
As a consequence of the Supreme Court decision, the legislation was amended to remove the 'fled' requirement in respect of persons sought to serve a sentence in the issuing state. The "fled" requirement was removed on legal advice as it was an elaboration in Irish law that was not mandated by the Framework Decision on the European Arrest Warrant. Once the Act was amended, it was open to the Hungarian authorities to issue another EAW for Mr Tobin. The High Court ordered the surrender of Mr Tobin to Hungary based on the new warrant but this was appealed to the Supreme Court. The Supreme Court reversed the findings of the High Court and refused to surrender Mr Tobin, holding that to do so following the previous proceedings in which he was successful would amount to an abuse of process and that, under the Interpretation Act, 2005, which limits the retrospective application of amended legislation, the amendment to the European Arrest Warrant Act 2003 did not apply to Mr Tobin.
The House will appreciate that in those circumstances there is no further action open to me in relation to securing the surrender of the person concerned.
In recent days the Hungarian Minister for Justice has written to me reiterating his concerns and there has been some contact with the European Commission about this matter. There will be ongoing contacts in this regard but I would be doing a disservice to a family which has suffered so much if I were to hold out any hope that their wishes can be met. I greatly regret that there is no further appropriate action that can be taken under Irish law.
That concludes my narrative on the Bill. I commend the Bill to the House.