Seanad Éireann - Volume 139 - 24 March, 1994
Extradition (Amendment) Bill, 1994: Second Stage.
Question proposed: “That the Bill be now read a Second Time.”
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: I welcome the Minister to the House.
Minister for Justice (Mrs. Geoghegan-Quinn) Máire Geoghegan-Quinn
Minister for Justice (Mrs. Geoghegan-Quinn): The primary purpose of the Extradition (Amendment) Bill, 1994, is to amend and clarify our law with regard to the offences which are not to be regarded as political for the purposes of extradition.
 The Extradition Act, 1965, provides that a person shall not be extradited or delivered up for an offence which is a political offence or an offence connected with a political offence. The term “political offence” is not defined but there are statutory provisions which exclude certain offences from the scope of the political offence exception. The most relevant of these provisions are contained in the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, and are being amended by this Bill.
The 1987 Act came under the scrutiny of the High Court and Supreme Court in the cases of Sloan, Magee and McKee v. Culligan  ILRM 641 and  ILRM 186. The Act was held not to be repugnant to the Constitution. However, the Supreme Court stated that as the Act may impose upon an individual a liability to be delivered out of the jurisdiction for the purposes of standing trial or of serving a sentence, it should be strictly construed. In particular, it was held that in the absence of an unambiguous expression to the contrary, the offence of possession of an automatic firearm with intent to endanger life could be regarded as a political offence. In light of the Supreme Court decision, it is clear that the provisions of the 1987 Act are inadequate and need to be amended.
It is the view of the Government that offences involving violence, offences involving the use or possession of firearms and explosives with intent to endanger life or cause serious injury to property or offences involving drugs should not be regarded as an acceptable form of political activity, particularly when they are committed in states which have democratically elected governments and which are party to the European Convention on Human Rights.
It is in the light of this view that the scope of the political offence exception is being restricted. This is not to say that we are abolishing the political offence exception entirely or that we will extradite people without safeguards. The effect of this Bill, in conjunction with existing legislation, will be that a person  who commits an offence involving violence, an offence involving the use or possession of firearms or explosives with criminal intent or an offence involving drugs will be unable to escape extradition on the basis that his or her offence is political. However, where a person engages in political activity against a foreign government without resorting to such offences, it will still be open to that person to seek the benefit of the political offence exception.
There are a number of safeguards in place to ensure that the extradition process will not be abused and the rights of those accused of crimes will be protected. It would be no harm to remind the House of these safeguards. Regardless of the offence charged, extradition may always be refused if there are grounds for believing that the request for extradition was made for the purposes of prosecuting or punishing a person on account of his or her race, religion, nationality or political opinion. This safeguard is set out in section 11 of the Extradition Act, 1965, and section 44 of that Act as amended by section 8 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987.
We have special arrangements with the UK providing for a system of backing of warrants and the Extradition (Amendment) Act, 1987, introduced a number of controls which apply in respect of those arrangements. In particular, UK warrants seeking the return of a person to the UK for the purpose of prosecution there will not be endorsed for execution here unless the Attorney General is satisfied that there is a clear intention to prosecute and such intention is founded on the existence of sufficient evidence. Furthermore, extradition can be refused if by reason of lapse of time it would be unjust, oppressive or invidious to deliver the person to the UK authorities.
While I am on the topic of safeguards I should mention the question of specialty. Specialty refers to that generally accepted principle that where a person is extradited to a country in respect of a specific crime, he or she should only be  proceeded against in respect of that crime and no other, unless the country which extradited that person consents to the prosecution of that person for a different crime. Part II of the Extradition Act, 1965, gives statutory effect to the rule of specialty as regards extradition to all countries except the UK. We have an unwritten agreement with the UK regarding specialty but difficulties did arise in the last few years in its application. Both Governments have now agreed that specialty should be placed on a proper legislative footing. The necessary enabling legislative provision on our side was introduced by section 3 of the Extradition (Amendment) Act, 1987, and this allows us to apply the rule of specialty to our arrangements with the UK by means of a statutory instrument. Last year, the UK passed the legislation necessary for it to apply specialty by order. Both sides have drawn up draft orders and discussions are under way to ensure that they will be consistent. The two orders should be finalised in the near future.
Turning to the provisions of the Bill, section 1 (2) and (3) provide that the Bill will apply in respect of offences committed before the passing of the Bill with two exceptions. First, it will not be possible to reopen a case where the courts have already ordered the release of the person concerned and have decided that the offence in question was political in the particular circumstances of the case. The constitutionality of any other approach would be open to question and could lead to what would be perceived as a clash between the Legislature and the courts.
The second exception is that sections 2 and 3 of the Bill will not apply in a case where extradition proceedings had been initiated but not completed when the sections come into force. Again, this exception has been included for constitutional reasons. The courts have made it clear that, under the Constitution, the judicial process is inviolable while in operation.
Section 2 of the Bill provides for the amendment of the existing provisions in  the Extradition (European Convention on the Suppression of terrorism) Act, 1987 dealing with the political offence exception. That Act followed, to a large degree, the approach taken in the European Terrorism Convention and section 3 of the Act corresponds with Article 1 of the convention. Both section 3 and Article 1 contain a list of specific offences which are not to be regarded as political offences and that list of offences is being maintained.
Article 2 of the convention refers to more general offences and contracting states have discretion to decide whether such offences should be excluded from the scope of the political offence exception. Section 4 of the 1987 Act gave partial effect to Article 2 of the convention and is discretionary in its application, unlike section 3 of that Act which is mandatory on the courts. Section 4 (2) (a) (i) of the 1987 Act at present provides that an offence:
(I) involving an act of violence against the life, physical integrity or liberty of a person, or
(II) involving an act against property if the act created a collective danger for persons
shall not be regarded as a political offence if the court is of opinion that the offence cannot properly be so regarded. Section 4 (1) (a) provides that in determining whether or not such offences are or are not to be regarded as political, consideration must be given to:
any particularly serious aspect of the offence, including—
(i) that it created a collective danger to the life, physical integrity or liberty of persons,
(ii) that it affected persons foreign to the motives behind it, or
(iii) that cruel or vicious means were used in the commission of the offence,
The purpose behind section 2 (a) of the Bill is to remove the discretionary element as regards offences covered by  Article 2 of the convention. This is done by inserting the reference to offences:
(I) involving an act of violence against the life, physical integrity or liberty of a person, or
(II) involving an act against property if the act created a collective danger for persons,
into section 3 of the 1987 Act. The result will be that such offences cannot be political offences regardless of the circumstances. Section 4 of the 1987 Act is made superfluous by this amendment and is being repealed by section 16 of the Bill.
The changes effected by section 2 (a) of the Bill will give full effect to the convention and will mean that all serious offences involving violence cannot be regarded as political. The amended section 3 will still retain the language used in Articles 1 and 2 of the convention. However, the descriptions of offences used do not always correspond with offences under Irish law. This could lead to uncertainty. Furthermore, the Supreme Court judgment in the Sloan, Magee and McKee case was to the effect that possession of firearms with intent to endanger life is not covered by the convention. To avoid uncertainty, and to ensure offences involving possession with intent to endanger life are included, section 2 (b) provides for the insertion of a schedule of offences under Irish law and if an offence equivalent to one of the scheduled offences is committed abroad, then that offence cannot be regarded as political for the purposes of extradition.
The offences listed are serious offences of the type perpetrated by terrorists and which involve, in particular, offences against the person, offences involving firearms and explosives and offences related to hijacking. The list of offences is similar but not identical to that in the Schedule to the Criminal Law (Jurisdiction) Act, 1976. The majority of the offences in question would fall within the scope of the European Convention on the Suppression of Terrorism.
Regarding section 3 (a) of the Bill, it is the intention of the Government to  accede to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on 20 December 1988. A number of legislative measures are required before we can accede to that convention and those measures relating to extradition are dealt with by section 3 (a) of the Bill. Measures relating to the confiscation of the proceeds of drug related crime are being dealt with in the Criminal Justice (No. 3) Bill, 1993, which is also before the House at present.
Article 3.10 of the drugs convention, among other things, provides that for the purpose of extradition — dealt with by article 6 of the Convention — the offences provided for in Article 3 shall not be considered as fiscal offences or as political offences. The Government is satisfied that a person involved in drug related offences should not be able to escape extradition by claiming his or her offence is a political offence or a revenue offence. Section 3 (a) of the Bill amends the definition of “political offence” and “revenue offence” in the Extradition Act, 1965, so that the drug related offences referred to in Article 3 of the drugs convention are specifically excluded from the definitions in question.
Section 3 of the 1987 Act lists offences which cannot be regarded as political and the section specifically covers attempts at such offences and accomplices to such offences. However, there is no specific reference to the question of conspiracy to commit such offences. To avoid any possible uncertainty it is considered preferable that there should be a specific reference to conspiracy. This is achieved by the amendment, to what was subparagraph (vi) of section 3(3) of the 1987 Act, and is now renumbered subparagraph (vii), which inserts the words “or conspiracy”. This amendment, made by section 2 (a) of the Bill, reflects the existing law as decided in the case of Ellis v. O'Dea  ILRM 346, where it was held that the particular charges which related to conspiracy to cause an explosion could not be regarded as political offences.
 The Bill also contains a number of procedural changes. Most of these changes require minor amendments in a variety of sections. The changes will be more comprehensible if I deal with them by reference to the subject matter involved rather than concentrating on the amendments themselves which are technical.
I might also point out that the draftsman has adopted the policy that where an amendment is to be made to a section or subsection, the entire section or subsection, as amended, is reproduced rather than the amendment itself. This should make it easier for practitioners to follow the revised provisions.
The first procedural change relates to proceedings before the District Court. The Government is of the view that proceedings in the District Court relating to extradition should be centralised. The proposal in the Bill is that a panel of District Court Judges assigned to the Dublin Metropolitan District Court and nominated by the President of the District Court will deal with all extradition cases and in this way the juges in question will have an opportunity to build up a body of expertise and experience with respect to extradition cases. The only exception being made is in relation to dealing with applications for provisional arrest. As such applications are only made in urgent cases it is considered that it might be too restrictive to insist that they be made in Dublin.
The proposal will also remove what might be regarded as inconsistencies in the existing arrangements. In the case of a person arrested under Part II of the 1965 Act whose extradition is sought by a country other than the UK, the person is, under the existing arrangements, brought before a District Court Judge in Dublin unless the Minister directs otherwise. However, in the case of a person arrested under Part III whose extradition to the UK is sought, he or she must be brought before a judge of the District Court for the district in which the arrest was made. In future in both types of cases, a person arrested will be brought before one of a panel of District Court Judges in Dublin.
 At present the District Court has jurisdiction to release on bail a person arrested for the purposes of extradition. A person's constitutional right to bail cannot be restricted by legislation. However, the Government considers that it is not appropriate for the District Court to have jurisdiction to determine bail in cases involving extradition. Extradition cases can often involve offences of a grave nature, including murder. It might be noted that section 29 of the Criminal Procedure Act, 1967, restricts the power to grant bail to the High Court in the case of murder, treason and certain other offences. The Government has decided that a similar restriction should apply in extradition cases and section 5 of the Bill provides that in future bail may only be granted by the High Court in extradition cases.
At present members of the Garda Síochána have power to arrest a person without warrant in a variety of circumstances. For example, they may arrest a person without warrant where they suspect the person of having committed a felony or a scheduled offence under the Offences Against the State Act, 1939. However, there are strict controls on the power of the Garda Síochána to arrest a person whose extradition is sought. The Bill proposes to maintain the existing restriction which prevents the arrest of a person for the purpose of extradition unless a warrant has been issued for his or her arrest. However, it is intended to remedy the existing absurd situation where a member of the Garda Síochána cannot arrest a person in circumstances where the member knows that a warrant for the arrest of that person has been issued but the member does not have the actual original of the warrant in his or her possession when that person is found.
Section 6 of the Bill will allow the arrest of a person where a warrant is in existence but it does not have to be in the physical possession of the arresting garda. If the arresting garda does not have the warrant in his or her possession at the time, the warrant must be produced  and a copy given to the arrested person within 24 hours.
Another procedural change proposed by the Bill is the repeal of the requirement in section 47 of the 1965 Act that the District Court judge specify in advance the point of departure from the State. If this becomes public knowledge, it can create security problems. Section 12 proposes that the Garda Síochána will make appropriate arrangements for the delivery at a point chosen by them.
At present under Part III of the 1965 Act a warrant cannot be endorsed nor can a provisional warrant be issued unless the person who is the subject of the warrant is believed to be in the State. This has given rise to practical difficulties where a person is known to be on his or her way to the State but has not yet arrived. This problem is being remedied by the changes included in sections 10 and 13 of the Bill which will ensure that the relevant sections — sections 43 and 49 — apply to persons in the State and to persons who intend to enter the State.
A provisional warrant for the arrest of a person whose extradition is sought to the United Kingdom may be issued under section 49 of the 1965 Act by the District Court in circumstances where a warrant has been issued in the United Kingdom but has not yet arrived in Ireland for endorsement. A person arrested on the basis of a provisional warrant must be released unless the warrant issued in the United Kingdom is endorsed and produced to the District Court within three days of the arrest.
The three day period was considered adequate in 1965 because the mechanics involved in forwarding and endorsing the warrant were straightforward. However, the procedures introduced by the Extradition (Amendment) Act, 1987, have complicated the situation. A further step was added to the process and this requires the Attorney General to consider, in the case of a request for the extradition to the United Kingdom for the purposes of prosecution, whether there is a clear intention to prosecute and whether such an intention is founded on the existence of sufficient evidence. The Attorney  General requires time to study the necessary documentation and to assess whether there is sufficient evidence to justify prosecution. The three day period provided for in section 49(6) of the 1965 Act is not long enough and the Bill proposes to extend the period from three to seven days.
Section 6 of the Extradition (Amendment) Act, 1987, requires the Government to make an annual report to each House of the Oireachtas on the operation of Part III of the Extradition Act, 1965. In response to concerns expressed in the other House a new section, section 15, was introduced. This section requires the report on a particular year to made before 31 December of the following year. These are the substantive and procedural changes envisaged by the Bill.
I would like to comment on some of the issues raised by the recent High Court decision in the case of Mr. Joseph Magee. The High Court gave three reasons for refusing his extradition. First, the procedure followed in the District Court in Limerick fell short of the constitutionally acceptable standards of fairness. Second, the offence was a political one and it fell outside the scope of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, as it did not create a collective danger to the life, physical integrity or liberty of persons. Third, the pre-trial publicity in the United Kingdom was such that there was a serious risk of an unfair trial.
Without expressing any views on the decision of the court, I would point out that in future under the Bill extradition proceedings in the District Court will always be heard by one of a panel of judges in Dublin who will have special experience and expertise in the field of extradition. As a result there should be no procedural difficulties with extradition cases. As to the political offence exception, the reference to collective danger to the life of persons is being deleted. In any event, the Schedule specifically provides that murder cannot be a political offence. The question of pre-trial publicity in England is a matter outside our  control, but I have raised the issue with the British authorities. I commend the Bill to the House.
Mr. Neville Mr. Neville
Mr. Neville: I welcome the Bill and I support its objectives. It brings Irish extradition procedures in line with those existing between our colleagues in the European Union. I welcome the provisions that the so-called “political motive” shall not prevent people from facing trial for serious crimes because they chose to evade justice by moving from another jurisdiction to the Republic. This Bill will ensure this State is not a place where political criminals of varied persuasions can avoid paying for their crimes.
The Government committed itself to introducing this legislation in 1991. Fine Gael has been critical of the delay, which contrasts with the Government's readiness to give Sinn Fein, the spokesmen of the IRA, access to the airways. At a time when all political parties wish for the success of the Downing Street Declaration and the ensuing peace process, it is important that we maintain our standards and our criterion of what is right and wrong. Terrorism and murder are wrong and this State must never flinch from dealing with them.
Terrorism is wrong no matter what side it comes from, whether the IRA or loyalists. Nobody should be able to use politics to justify murder. The taking of life, causing grievous bodily harm, endangering the lives of others, maiming, kidnapping, any act of terrorism or attempting any of these cannot be excused by the corrupt use of the word “political”. The 1987 legislation went some way to ensure that would not happen, although subsequent court interpretations did not depoliticise a number of offences which were part of the ordinary stock and trade of terrorists.
Offences such as murder, the use of non-automatic firearms and the possession of explosives are not outside the scope of the definition of a political offence contained in the 1965 and 1987 Acts. At the time legislators decided they would be, but the courts interpreted the  situation differently. However, under section 11 of the Extradition (European Convention on the Suppression of Terrorism) Act, 1987, the courts were allowed discretion to enlarge the range of offences not entitled to be so-called “political exemptions”. Because of the decisions of the Supreme Court there is a need to strengthen the legislation to ensure that the political offences label is removed from offences, including acts of violence against any person and relating to the use or possession of firearms or explosives.
Following the introduction of the Single European Act and the Maastricht Treaty, the creation of open borders is of benefit to Union. It has been said many times in this House that organised criminals will use this freedom to further their own violent schemes. Law enforcement throughout Europe must be coordinated under the umbrella of the European Union and the Council of Europe. The European Convention on Human Rights is one of the council's most important conventions. It must not be used to justify those who deny the most basic human right, the right to life, to others. Following the opening of European borders, there is an urgent need for a framework to combat all serious crime, including international terrorism. This framework must provide effective enforcement of laws across European national boundaries and arrangements must be introduced to ensure such enforcement.
Any system must have as an integral part a mechanism to ensure that the rights of innocent people are fully protected. A cornerstone of our democratic system is that a person is presumed innocent until proven guilty. The Minister referred to this during the discussion on the recent trial of Joseph Magee. She specifically referred, as did the court, to pre-trial publicity in the United Kingdom, which was determined to cause a serious risk of an unfair trial.
I am concerned at the sensational reporting by sections of the British press of the pre-trial and court proceedings.  Such coverage has a prejudicial effect on a trial. The British media are often quick to condemn the approach which this State takes in certain cases. This may be justified at times, but the sensational, sometimes misleading, coverage which often pre-empts the guilt of persons charged is not justified. The British media must recognise the criteria which this State applies in presuming one's total innocence until proven guilty. Nothing must interfere with this. Some of the reporting by the British media creates the danger that trials, especially those of foreign nationals, could be prejudiced.
The Minister said she has raised this matter with the British authorities. I impress on her the need to do this and express to the British Government the concern of the Government and the Irish people about this issue. Trials of people who are extradited from this country must be fair and seen to be so. The collective action of the Irish and British Governments in their dealing with terrorist murderers must not be undermined by giving them the opportunity to use trials and the publicity surrounding them for their own propaganda machine.
I draw the attention of the Minister and the House to our extreme concern about the application of the bail laws. The Minister has endeavoured to deal with this in this Bill and in her contribution to the House. Following a Supreme Court decision in 1966, bail cannot be refused to people purely on the likelihood that they may commit further crimes while at large. This is irrespective of the seriousness of what might be termed the original crime. I am concerned that in relation to extradition the High Court might feel constitutionally bound to grant bail following the precedent of the 1966 ruling. In the case of extradition it is more likely that under present law people will be granted bail because they are unlikely to flee to Britain or Northern Ireland since in most cases it is to there they are likely to be extradited. The only argument accepted by the courts as grounds for refusing bail is that a defendant is likely to interfere  with witnesses or abscond from the jurisdiction.
The law relating to bail must be changed. This requires an amendment to the Constitution. The Government must use the opportunity of the European elections to do this. I have raised this with the Minister during previous discussions and make no excuses for raising it again. Terrorists, whether they are operating in Britain, Northern Ireland or this State, must be brought to trial. In this respect, I wish to refer to Item 33 on the Seanad Order Paper. This states:
That, in view of the unsolved atrocities of the 1972 and 1974 Dublin bombings and the 1974 Monaghan bombing and given the media reports related to these atrocities over a number of years, a Joint Oireachtas Committee be appointed to enquire into these murderous acts and to report thereon with urgency, such Committee to consist of 13 members and to have the power to send for persons, papers and records and to compel the attendance of witnesses.
Even at this late stage we should seek to identify those who committed these terrible atrocities and, wherever they are, endeavour to bring them to trial.
I welcome that the Bill seeks to close the loophole in the Extradition (European Convention on the Suppression of Terrorism) Act, 1987. We hope the Bill will succeed in this objective. We await the outcome of this when it is tested in the courts. It is surprising that the flaw in the legislation was not anticipated in 1986. I accept that the present Minister was not in the post at that time. It seems strange and nonsensical that under the law the use of an automatic weapon could never be regarded in our courts as a political offence, yet the possession of a lethal weapon like an M60 machine gun could be regarded as such and provide immunity from extradition. This problem was identified by the courts in 1990. The delay in correcting it has, unfortunately, allowed a finger to be pointed at this State. I agree with the Bill and commend  the Minister for her approach in accepting Fine Gael amendments during the Bill's passage in the Dáil. This has improved the legislation.
Mr. O'Kennedy Mr. O'Kennedy
Mr. O'Kennedy: I also enthusiastically welcome and support the Bill, not only because of its provisions but also because it enables us to demonstrate beyond any doubt that we are vigorously determined to ensure that the procedures of the law are applied, particularly in the prosecution of offenders, and that people will not be allowed to shelter under the established exemption from extradition — that is, political offences — which would otherwise be seen as violent criminal offences. The Government has demonstrated beyond any doubt, not just to our citizens but to the world, that it is pursuing a vigorous, consistent and measured course in fully implementing our obligations under international conventions and ensuring that loopholes which emerge from time to time will be sealed. There can be no doubt in anyone's mind, here or elsewhere, of the Government's clear and purposeful determination in this connection. Equally, there can be no doubt that the Government is anxious to ensure that the safeguards which are there, and must be discharged by the instruments and officers of the State, are effective and discharged to the maximum extent consistent with our responsibility.
Vague and ill-informed comments, such as those heard from Senator Neville, who said it is a pity the Government did not act on this earlier when it got rid of the section 31 restriction, do nothing to reassure the public here and in the EU member states of our firm and consistent purpose. Those ill-informed comments do no service to the State's interests generally.
In all of this we have to distinguish between the role of the Executive — the Government — and the Legislature — the Oireachtas — and both are complementary in this sense; we have one Act to implement the other. There is no problem in that area. However, it also must be stated that under our Constitution —  which is not greatly different from others in this area — the courts have a separate function. There can be no imputation against the Government or the Legislature of the day if the courts, in discharge of that separate function, come to conclusions which they in their wisdom, or otherwise, feel they are obliged to implement in the balance between extraditing citizens and imposing necessary safeguards.
I say that particularly because in our sister Parliament — I am a member of the Anglo-Irish parliamentary body — there have been some very ill-informed comments in recent times from individual Members, who might have known better, in reaction to judgments of our courts implying — and this is very unhealthy in terms of the relationship between our two peoples — that this showed double standards or a reluctance on our part to adhere consistently and effectively to international obligations.
They should know better than anybody else that the courts have a separate role and any attempt to imply that this State is ambiguous or deceitful in some instances trying to give the impression we are doing one thing while actually practising another, is totally unacceptable. Both Governments are working to achieve an effective understanding but it does not help when Members of Parliament make these comments, which are repeated in the British media. That gives rise to a position where the public may feel that the Irish have reservations on this area when, in fact, the opposite is the case.
In that connection, it is important to remember that if the actual exemption for political offences has an identifiable birthplace in any jurisdiction, it is in the Mother of Parliament herself, Westminster. It was the British Parliament in the last century which insisted that it was going to jealously guard and protect its rights to deal with its citizens. In the extradition Act of 1870 it particularly insisted that the political offence exemption be written into the law. That exception did not originate here simply to protect some Irish people from the normal consequences and sanctions of  the law. Section 3 (1) of the original UK Extradition Act, 1870 states:
A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character, or if he proves to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.
Is that not what one might call an impeccable pedigree in terms of the origin of political protection?
In the years since, the British record of extradition to other countries — and I make no criticism of this but I want to point it out to their public and some of their ill-informed politicians — in terms of that ultimate release of one's responsibility to other jurisdictions is much less than other member states of the European Union, including our own. I do not question them on that because the old principle on which extradition is based is aut dedere aut judicare — either to extradite or to try. Every state has its own fundamental responsibility and obligation to ensure that the law is upheld and that a citizen's rights are vindicated within the law. Almost every state has applied that obligation in terms of the principle of aut dedere aut judicare — either to extradite or to try.
Extradition is a very final act. If a Government or the agencies of a state decides to extradite a citizen, it is thereby divesting itself both of its right and responsibility at that point in respect of that citizen. I am not saying that extradition is wrong for that reason — far from it. I am simply saying that it is a very final act and before engaging in such a final act it is understandable that the State, and I welcome the whole direction and thrust of this Bill, would want to be sure that if we are handing over citizens from our responsibility to another jurisdiction, we will want to have safeguards. It would be wrong not to insist on those safeguards. I question and criticise those who  would imply that in looking for these safeguards we are in some way showing a reluctance to co-operate effectively.
This Bill clearly demonstrates that the safeguards are important as part of a balanced approach showing a determination to limit the spurious application of political offence to a range of firearms offences. I welcome particularly the fact that, as the Minister said in her opening statement, there are provisions in the legislation which will ensure that in discharging our role and those safeguards we will have the guarantee of full and detailed consideration by our own authorities. For example, the Minister was right to introduce an extension for the period of three days to seven days in respect of the discharge of the Attorney General's responsibility. I will have a little more to say on that role in a moment.
This Government, its predecessor and the Attorney General, as an officer of the State, have recognised our responsibility and jealously guarded it. Therefore, before the ultimate decision to relinquish our own rights and obligations in respect of any citizen is made, it is essential that all the elements that would arise in a trial here are considered in respect of extradition to another jurisdiction.
It is essential that the Attorney General, as the constitutionally bound law officer and adviser, is sure on the rule of specialty, as the Minister rightly pointed out, that a person is not extradited for one offence and charged with another. The purpose of extradition is to be responsive to a specific request in relation to a specific offence. That is essential in respect of a request from any jurisdiction. It should operate both ways and I am sure it does because we have always had what one might call a mutual backing arrangement with the United Kingdom in particular. They have the same rights in respect of any requests we make. The Attorney General is therefore, under his constitutional role, obliged to be satisfied that the offence in respect of which the request is made is the same offence with  which the person will be charged if and when he or she is extradited.
The Attorney General must also ensure that there is a prima facie case and that the offence with which he or she will be charged when extradited is based on evidence that would support a charge in this jurisdiction. We do not have any right to extradite people on request unless our law officer, the constitutionally appointed adviser to the Government, is satisfied that what we regard as essential judicial and trial procedures will be available and that he or she will not be tried on other grounds.
We must also ensure that the person is not extradited for questioning. I am not suggesting any bad faith on the part of the British Government and both Governments have constant contact in this area, nonetheless it is not just a question of accepting good faith. We must discharge our own responsibility and we and the Attorney General are obliged to ensure that no one is extradited for the purpose of questioning as distinct from extradited for the purpose of standing trial.
It is appropriate in light of the obligations which attach to the Attorney General that the Minister wants an extension of the detention period under a warrant from three to seven days. Normally people would say it is an infringement of individual rights to hold someone for seven days where previously the period was three. However, in this instance, ironically and significantly, the extension of the period of detention is in the interest of the person being detained. That is a very significant element of the Bill and I welcome it.
With regard to the role of the courts, the Minister has correctly made a passing and balanced reference to the recent decision in the Magee case. It is to an extent a function of the Executive or the Legislature to try to correct anomalies as a consequence of court findings under current law. Mr. Justice Flood's decision in the Magee case was based on three issues. He was of the opinion that the procedure followed in the District Court fell short of constitutionally acceptable  standards of fairness. He believed that the offence was a political offence and fell outside the scope of the Extradition Act as it did not create a collective danger to the life, physical integrity or liberty of persons. Finally, he was of the opinion that the pre-trial publicity in the United Kingdom was such that there was a serious risk of an unfair trial.
To the extent that it is open to the Executive and the Legislature to deal with the consequences of that decision in respect of the first two issues, the procedures and the scope of political offence, this Bill does all that is possible. We all have a common interest in this. While the British Government must be aware of our attitude from constant consultations with our Government, it is important to demonstrate, particularly to the British public and British parliamentarians, that we are diligent, almost zealous, in ensuring that we eliminate anomalies where we can.
It is equally important that we point to any circumstances operating in the United Kingdom over which we have no control such as the pre-trial publicity in tabloid newspapers which, unfortunately, is all too much a feature of the reporting of judicial and court procedures in that jurisdiction. If that is to be remedied it has to be done there. We are obliged to ensure that the procedures are fair, correct and balanced but we have no control over reports in another jurisdiction. We should clearly mention that now in case it happens again. I am sure the Government would not attempt to interfere with the separate function of the Judiciary in determining whether the circumstances in another jurisdiction are conducive to a fair trial for the person. It is not our place to do that and it is, therefore, essential that those who have that role and responsibility in the United Kingdom ensure that they will change what is deemed unacceptable by any reasonable and fair standards.
I want to be careful and measured in my comment but it has to be said that our judicial procedures measure up to the best in Europe and the world. There is no question about that. When our lawyers  represent our interests at international fora they are recognised among the most skilled and articulate. We would be closing our eyes if we did not recognise that in some judicial procedures over the last decade, more notably in the notorious cases involving the Guildford Four, the Birmingham Six and Annie Maguire, there have been miscarriages of justice although, in fairness to the establishment, they recognised this. Compensation is being paid for the miscarriages that occurred in British courts. We have had no such experience, I am glad to say.
The legal protections available to citizens of whatever nationality or background have been vigorously applied here and therefore we must consider whether fair trial procedures will follow in any case where a person is extradited. Every person is entitled to get a fair trial from the organs of his or her own State, so before we decide to pass on our responsibility to another jurisdiction we should be guaranteed that those fair procedures are in place. That is a matter of constant discussion between both Governments and between the Minister and her counterpart, the Home Secretary, to whom I suggest the Minister pass on my good wishes. I knew him during my short period as Minister for Labour, and I have no doubt that their co-operation in this area will be effective. There is little else I need to say.
It is very important, when we give specific responsibility in legislation to designated officers such as the Attorney General, that everybody has total confidence in that officer and that nothing we say or do would attempt to undermine the role of that officer or the courts involved. In the last day or two we have seen a most contemptible attempt to undermine both our courts and the constitutionally nominated law officer of the State. That I know the gentleman concerned, that I saw him operate as Attorney General when I was in Government and that I personally have the highest possible regard for him is not an issue. That he is being deliberately targeted to undermine his role, a role set  down in this legislation is contemptible. I refer to it only in the context of this legislation.
If he is the kind of person who warrants the attack that has been made on him in the other House, then he would not warrant the responsibility his office places on him. Not only does he personally warrant a high degree of respect, but his office warrants it. It is contemptible that such a thing has been done which undermines the whole status and responsibility of both our courts and our Attorney General. I say the same in respect of our courts. If it is thought that our judges have another agenda, how can we expect people in other jurisdictions to have confidence in the decisions of our courts?
Acting Chairman (Mr. Fitzgerald) Acting Chairman (Mr. Fitzgerald)
Acting Chairman (Mr. Fitzgerald): Please keep to the Bill before the House. The matter of which you are speaking occurred in the other House.
Mr. O'Kennedy Mr. O'Kennedy
Mr. O'Kennedy: When we are dealing with the role of the courts, which is a very important part of this legislation, and trying to deal with the consequences of the decisions of our judges and also the role of the Attorney General, it is important to reject spurious allegations in respect of the courts, individual judges or the Attorney General.
This legislation represents the proper balance in the discharge by this State of our obligations to deal with terrorism from any source. We have never been reluctant to act on that responsibility and this Bill clearly demonstrates that, far from being reluctant to take on our responsibility in this area, we are vigorously determined to do so, while maintaining the responsibility and protections that every State owes to its citizens before it contemplates the ultimate decision of extradition. I support this Bill enthusiastically.
Ms Honan Ms Honan
Ms Honan: I welcome the Minister to the House. On behalf of the Progressive Democrats I welcome the Bill and congratulate the Minister for bringing forward  this legislation, which her predecessors failed to do. We should realise how courageous she has been in doing this and I warmly congratulate her.
The purpose of the Bill is to amend and clarify our law with regard to offences which are not to be regarded as political for the purposes of extradition. Ordinary people find it difficult to understand how an unarmed man can be gunned down on an English high street and because the weapon used was a nonautomatic weapon, it is deemed to be a political offence and the perpetrator of the offence walks free.
Political inactivity on this issue down through the years has damaged relations between Britain and Ireland and it has also created a feeling amongst ordinary citizens both here and abroad that we are lenient on terrorists. I warmly welcome the changes being made in this Bill. If we look at the history of extradition we cannot say that there has not been a certain amount of foot dragging on the part of the Government and previous Governments in bringing forward measures necessary to close the loopholes in our law which have been shown up in the courts. The extradition of politically motivated offenders from Ireland to the UK has proved to be by far the most contentious issue. The relationship between Ireland and the UK over the past 20 years and the passage of this Bill will bring an end to this lengthy legal saga and I again congratulate the Minister on bringing the legislation forward.
It is important to establish the principles underpinning extradition which the Progressive Democrats believe are justified and appropriate. These matters concern fundamental issues of sovereignty, constitutional rights, justice and political relations between ourselves and Britain. If we look at the history of extradition between the Republic and the UK in the past decade, it has been one of changing legal interpretations, bad tempered exchanges between Governments, embarrassments for both the British and the Irish police and seemingly endless confusion.
 Since 1984 the courts have twice rejected and twice accepted the so-called political defence. Extradition has been refused on grounds that pre-trial publicity in Britain would militate against a fair trial and suspects have been extradited after prolonged and highly expensive legal and police work only to have the charges thrown out by the British courts. Suspects have frequently walked free from Irish courts which have found the warrants seeking their extradition to be defective. The gardaí have chased groups of republicans along the streets of Dublin, even having to draw firearms, while their superiors frantically sought evidence on whether or not they were to re-arrest the suspects. The gardaí have seen the results of thousands of hours of difficult and detailed work evaporate as cases were thrown out of the court and they have become accustomed to being the butt of criticism in the British media.
The same criticisms have cropped up again recently in the wake of the Magee and the Gorman cases. At the height of the controversy in the Patrick Ryan case the Government had to endure accusations in the British House of Commons that it suffered from a lack of resolve. Although extradition has remained a thorny issue, the improvement in intergovernmental relationships is evidenced by the absence of any such remarks now.
The major issue which this legislation seeks to clarify is the so-called political defence whereby anyone claiming to have carried out an offence from political motivation can claim immunity from extradition. This exemption was included in the 1965 and 1967 Extradition Acts. The political defence mechanism was successful in most republican cases before the courts until December 1982. A new approach was signalled by the courts in the McGlinchey case where extradition was sought in respect of the alleged murder of an elderly post mistress. In an unprecedented judgment, which marked a breakthrough in the old ambivalence and reflected a change in public opinion and a hardening of views on terrorism, the Supreme Court ordered the extradition of McGlinchey. This signalled a  major new departure by the court which was to set the pattern for a series of judgments grounded on a test of what might be regarded by fair minded and reasonable people as legitimate.
In his judgment the then Chief Justice, Mr. O'Higgins, said that the judicial authorities and the scope of the political offence had been rendered absolute in many respects by the fact that modern terrorist violence, whether undertaken by military or paramilitary organisations, is often the antagonism of what could reasonably be regarded as political either in itself or in its connection.
The Supreme Court judgment in the McGlinchey case opened the door to other extraditions. Mr. Seamus Shannon was arrested by the Garda and handed over to the RUC on a warrant accusing him of involvement in the murder of the former Stormont speaker and his son. The Supreme Court rejected the defence that these were political offences saying that they were so brutal, cowardly and callous that it would be a distortion of language if they were to be accorded the status of a political offence. Judges were using their discretion on the brutality in this case.
Later judgments led to further restrictions by the Judiciary on the extent to which a political offence could be successfully used. After these cases we saw a series of District and High Court decisions which led to the freeing of suspects on the basis that warrants for their arrests were defective. Evelyn Glenholmes, John O'Reilly, Patrick McVeigh and John McClafferty were freed as a result of defective warrants. Cases were then thrown out of court because of the use of arms and it was obvious that legislation was required to tidy up the whole basis of a political offence.
The principle which the Progressive Democrats believe must underpin our extradition law is that politically motivated offenders who commit violent crimes in the territories of member states of the Council of Europe, including the United Kingdom, must be liable to face extradition as part of the ordinary process of Irish domestic law. The Extradition  (European Convention on the Suppression of Terrorism) Act, 1987, which is the subject of some key amendments in this Bill, was introduced towards the end of 1986 to give effect to the European Convention on the Suppression of Terrorism. That Convention was adopted in Strasbourg in January 1977 but we did not sign it until 1986. The key objective of that Convention was to assist in the suppression of terrorism by complementing and, where necessary, modifying existing extradition and mutual assistance arrangements concluded between member states of the Council of Europe. Unfortunately, the 1986 Bill which was subsequently known as the Extradition Act, 1987, was badly drafted, inadequately debated and then guillotined. It obviously had major flaws, many of which were pointed out by the then leader of the Progressive Democrats, Deputy Des O'Malley. Many of the issues we are addressing today are due to the flaws shown up through that Bill. While the current Bill has some good points there are others with which my party still disagrees and which we feel are not adequately dealt with.
The Progressive Democrats welcome the concentration in the Dublin District Court as an improvement but would prefer proceedings in extradition cases to commence in the High Court. Given the delays in judicial procedures, this would not alone speed up the process but would elevate the importance of extradition. Another welcome provision is that in future only the High Court will be able to grant bail. In the past, bail has been abused and the Magee case is an example. The person on bail in that case absconded and then committed murder. The amendment of the 1965 Act dealing with the point of departure from the State, which no longer has to be specified, is a good one and makes sense. The wider human rights dimension of extradition is still fraught with uncertainties. The reasoning used in the Finucane and Clarke cases was all very well but a refusal to extradite subjects — on the grounds that they may receive ill-treatment  at the hands of a requesting state — could imply that the Irish courts might find themselves investigating conduct which may take place outside this jurisdiction. We do not think that is acceptable.
The manner in which the personal liberty and personal rights provisions of the Constitution have been interpreted has often resulted in decisions which greatly favour the criminal. The fact that great controversy surrounds extradition cases should come as no surprise. We have seen in the past how emotional people become about these issues. It is a measure of how far we have come that we are able to deal with these issues in an adult way today. We are reaffirming our commitment to extradite terrorists. The slow abandonment of the ambivalence about terrorist violence which culminated in the Downing Street declaration, the widespread clamour for peace and the passing of this legislation, must represent a fresh sense of confidence about the administration of justice here and in the United Kingdom. For that reason I again congratulate the Minister for her courage in introducing this Bill. Too many Ministers for Justice have avoided this issue because of the emotional feeling against extradition. The Minister has received widespread support from Members of both Houses as well as the public at large. Ordinary people cannot understand it when they see people, who have obviously committed heinous crimes, walking free when they plead the political offence defence. I warmly welcome and support this Bill.
Mr. Maloney Mr. Maloney
Mr. Maloney: I welcome the Minister to the House. This Bill is long overdue but better late than never. Extradition has been a very difficult and sensitive issue, not only for Ministers for Justice but for many ordinary politicians. There has been too much ambiguity on the question of extradition and far too much double-think among people who have campaigned for decades against any form of extradition here. People who have campaigned against extradition want to have their cake and eat it but extradition  must be confronted in an honest and just way. I commend the Minister for bringing this matter before the Seanad. It is controversial and must be tackled.
The Bill makes it no longer possible to regard the possession of explosives or firearms, where there is evidence of criminal intent, as a political offence. Neither is it possible to regard the use of non-authorised firearms as a political offence to evade extradition. I approve of these measures. The Bill further provides a number of amendments to the 1965 Extradition Act. There has been a lot of hypocrisy about extradition within Irish society, it must be part and parcel of the law in every civilised, democratic country. People have campaigned in both Houses against any form of extradition. We seem to have a blinkered attitude to the question.
If one considers statements made in the Houses of the Oireachtas or letters to newspapers one always finds that the people are concerned about members of the IRA, supporters of the IRA and people who are charged with possession of explosives or guns in Northern Ireland or Great Britain. These people are not concerned about ordinary criminals and those charged with petty crimes in Britain who are extradited to Britain every month. They are not concerned about how such criminals are treated when they are extradited and tried in British courts. Nobody cares very much about ordinary criminals. People have not asked if they are extradited legally or illegally or if British justice is fair to them. They could not care less about how such people are treated.
Paramilitaries are considered to have a higher status than the ordinary criminal. It is pure hypocrisy to regard somebody who has planted a bomb in Britain as somewhat better than somebody who steals in Britain. That is the attitude of many people and it underpins the attitude of those who oppose extradition. I reject that attitude.
The European Union consists of 12 democratic countries. The sooner those countries have common democratic laws the better. There is no reason extradition  should not apply across the 12 member states. There are different concepts of justice and that is reflected in the laws of some European countries. We should work to establish common laws, especially extradition laws, in the 12 member states. One of the worst terrorist atrocities was the Lockerbie bombing. It is terrible that somebody could plant a bomb on a plane and kill not only the passengers but also the unfortunate people in the town below. Some who oppose this Bill believe that those who planted the bomb should be allowed to go scot-free because extradition laws do not apply between the countries concerned.
How can anybody say that people can plant a bomb on a plane with impunity? Are those who plant bombs in London or Birmingham or anywhere else in Great Britain helping the cause of liberty and freedom? Anybody who plants a bomb in a city cannot be defended. No cause can justify the taking of innocent life. It is an act of terrorism to explode a bomb in the middle of London and we should clearly say so regardless of whether it causes offence. Murder is murder and it is an issue we must face.
I support the concept of a common European network of law embracing extradition. That is the only way we can deal with such crimes on a broad basis. In any agreement there must be give and take. It is not always possible to do everything on one's own terms. I hope this Bill is a step towards a common network of European law that embraces extradition. It is important that people who commit terrorist crimes are brought to justice and it is also important to have international co-operation in doing so. That is the only means of dealing with the problem.
This Bill has been and will be criticised by vested interests. We should not be deflected by such criticism. I welcome the Bill and I congratulate the Minister. I hope we will have greater co-operation with the British legal authorities. In the past some cases presented by the British authorities were rejected because of faulty paperwork and delays. I hope those problems can be solved. There is a  perception in Britain that people in this country will not co-operate with them in the fight against terrorist crime. The message should go out that the Government and the Labour Party will not be soft on this issue.
Mr. Roche Mr. Roche
Mr. Roche: The issue of extradition has marred relations between the UK and Ireland. That is very sad. I also read the newspaper article mentioned by Senator Honan. It was a perceptive, objective and finely presented article by Jim Cusack in The Irish Times of 18 March. However, I would use the facts he presented in a different way from Senator Honan. Rather than indulge in national self flagellation we should look at the facts as dispassionately and as objectively as possible.
Extradition has been a thorny issue between the two nations. If there have been faults and flaws they have not been all on our side. It is critically important that we acknowledge that fact. In the last 10 years the debate on the extradition issue has ebbed back and forth. It has not been assisted by the hysteria attached to the debate. It also has not been assisted by the distortion of reality that is a fact of life in so many debates in both Houses. We should never apologise for being a nation. We should do what we believe is right and we will have no reason to apologise to anybody.
Since 1984 the Republic's courts have twice accepted the so-called political defence. Senators who refer to the judgments in those cases will see the logic of the decisions. They will also see that the judges were at great pains to do justice in those cases. Extradition was permitted in other cases. Extradition was refused on the grounds that pre-trial publicity in Britain would mitigate against a fair trial. It was amazing to hear a Senator suggest that we should be less than careful about the publicity that has attended some extradition cases and that we should be less than zealous in guarding our citizens' rights to a fair trial in another state. That is the core issue in a number of extradition cases.
 We have also heard of occasions when charges have been thrown out against suspects who have been extradited to the UK after prolonged and very expensive cases in this country. Suspects have also been released by Irish courts because of grave incompetence in the manner in which the papers relating to the cases have been presented by the British authorities. As Senator O'Kennedy reminded the House, the issue of extradition and the political exception was not invented by either House of the Oireachtas. It predates the existence of this State. It is a British law from the 1870s. That law is still in force in Britain where the political exemption is still applied. Britain still properly and jealously guards the rights of its citizens when the issue of extradition arises.
Bull-headed political reaction in the UK to extradition cases has also been very unhelpful. The most celebrated case was that of Fr. Patrick Ryan when no less a personality than the Prime Minister of Britain made arguments under privilege in the House of Commons which tried and found the man guilty before proceedings against him had been commenced. That prejudiced the case and a fair trial could not have been assured.
We have the responsibility of putting laws which we deem to be right for the nation on the Statute Book. Over the years there has been an honest effort by successive Irish Governments and the courts to ensure that this island is not a haven for terrorists. It is wrong for Senators to suggest that anything else has been the case. It is very wrong of Senator Honan to suggest that there was foot dragging by Irish Governments in this area. That suggestion is contradicted by the facts and every Senator knows that.
In the McGlinchey case in 1982, the then Chief Justice, Mr. Justice O' Higgins, given all that happened in judgments on extradition, defined what was meant by political exemption as precisely as he could within the law of the day. He correctly took the view that shooting an elderly postmistress could not be regarded in any way as a political  offence or action. But what happened after the trauma of that extradition? We all know what happened. Where was the deficiency in that case? It was not in our courts nor was it because of footdragging by any Government or Minister.
The same issue came up when Mr. Quinn lost his appeal against extradition in 1985. We experienced the same traumas and the same level of national flagellation. Mr. Quinn was extradited because of Mr. Justice Finlay's judgment. He was sent to the UK, where he was found guilty of a relatively minor offence — offending the specialty principle — and was fined £600. We should stop flagellating ourselves on this issue. There has been no footdragging or attempt, either overt or covert, by any Government in the recent past or in the history of the State to provide a haven for terrorists. That message should be made clear. In any objective analysis, the cases where there have been difficulties have invariably not been because of any incompetence or lack of energy on the part of any law officer of this State. Senator Kennedy rightly referred to the attacks currently being made on the Attorney General. They are odious in every regard and are damaging to the interests of the State.
Political prejudice and bullheadedness, especially from the British Prime Minister of the day, in the celebrated Ryan case led to us being blamed for the result when we tried to ensure that the proper rules were applied. The Dessie Ellis case was another interesting example. Extradition proceedings were again proceeded with; we all remember the traumas on the Border in that case. What happened in this instance? The case collapsed because it could not be sustained in the British courts. We are not reacting to the media hysteria being generated by the tabloid journalism in the UK. The Minster is making sensible changes to existing law in this case to reflect the true wishes of both Houses of the Oireachtas and the vast majority of the Irish people. The ambiguity relating to the possession of firearms is being taken out of the law and that has to be  welcomed. Shooting a person or blowing them to bits can never be regarded as a political act. There are other ways of ensuring our political views are put across.
The measures in this Bill make it clear that there can be no ambiguity on the drugs issue. It would be astonishing to regard drug trafficking or trading as being covered by the political exemption. The Minister is prudent and is taking the right steps to ensure the law could not be abused in this case. The Minister is also correct in taking action when the property of an individual is damaged, but she is only focusing on this issue when there is a real danger to life and limb and a careless disregard for the most basic of all human rights, the right to life.
In her fine speech, the Minister took some time to reiterate some basic and fundamental principles. She referred to specialty, which is often misunderstood for some extraordinary reason in political and press commentary in the United Kingdom. The Minister makes it clear what this nation's views are on this issue for anybody who wants to understand. The Bill also deals with offences committed before the passage of the Act. This is a prudent move because it would be unconstitutional to do otherwise in section 2; there are prudent exemptions. I do not doubt that the enemies of the State, either within or outside it, will try to portray these exemptions as footdragging in some way.
This is a good law. We are trying to create a clear, transparent and unambiguous situation. When one cuts away the political rhetoric, one will find that it does have the support of all sides of the House. It represents the democratic wishes of our people. When dealing with this issue, the sack cloth and ashes and the tendency to self-flagellate should be left outside the debate. Successive Governments have not been guilty of footdragging. The courts have used the laws prudently and correctly to ensure there is a balance between justice, the rights of the individual and wider considerations to ensure that those who  behave in a heinous way are brought to justice.
Extradition, which has proven such a thorn in the side of Anglo-Irish relations, would be less contentious if the other party to this debate — the British authorities — were conscious of the capacity that exists in the our system of justice for extra-territorial offences to be charged. We went to considerable trouble many years ago to put on the Statute Book legislation which would allow those who were accused of heinous crimes to be tried within our jurisdiction. Many of the technical difficulties that came up over the years could have been avoided if that legislation had been used by the British authorities. They failed to use it after a few attempts. If the present situation is subject to condemnation in any way, they should look at their own actions, not at ours. Both this House, the other House and successive Governments have made real, honest and valiant efforts to ensure there are no havens for those who commit these acts in our name, which we all find repugnant and for which we give no political sanction or support.
Mr. McGowan Mr. McGowan
Mr. McGowan: The introduction of this legislation records the determination of the Government to clarify the law in this regard. While Senator O'Kennedy covered the issue eloquently from a lawyer's point of view, this legislation should also be understood by the ordinary citizen. I welcome its introduction.
The Minister participates in conferences on this issue and was part of the delegation that signed the Downing Street Declaration. Her input gives her an understanding and knowledge of the situation and it gives her the opportunity to express her views and to understand those of others. If we are to be understood, that kind of communication and understanding is fundamental. The legislation is criticised and reasons are given which imply that the Government's reason for not implementing extradition is political. The introduction of this law will help to make it clearer and more acceptable.
 I welcome the provisions in section 3 (a) which state that drug trafficking will no longer be classified as a political offence. The law must be clear in this area because it is a serious problem. I welcome the inclusion of that section in the legislation.
It is difficult to legislate in this area because of the borderline between North and South, which starts at Dundalk and goes to Donegal, and the political history between Britain and Ireland. It is difficult to define exact legislation in many areas, but the Government and the Minister for Justice are clearly outlining their intentions, particularly among the unbelievers in the North. I welcome that approach.
I would like to hear the Minister say that reciprocal legislation in the North would also include people in uniform because this has been a bone of contention. Serious offences have been committed which could not be classified as political and the people involved have got off scot-free. This shows disrespect for the law, North and South. Perhaps the Minister could respond to this point. It would help people to accept the extradition legislation if legislation in the North did not exclude those in uniforms.
In Northern Ireland military type weapons are licensed to individuals, but that does not happen here: all military type weapons in this jurisdiction are confiscated. I ask the Minister to press for the implementation of legislation in the North, because private individuals should not have licences for military type weapons as ammunition is also available to them. Will the Minister raise this matter with the British authorities so that improvements may be made?
Those who are aware of the difficulties welcome the introduction of this legislation. We hope it will help to convince the authorities in Britain and in Northern Ireland that the Minister for Justice is serious in her efforts to introduce legislation. I welcome that and I hope the Government's intentions are clearly understood.
Mr. Mooney Mr. Mooney
Mr. Mooney: Listening to this debate makes me realise we are living in changed  times. I entered this House in 1987 when the debate had just commenced on the Extradition (European Convention on the Suppression of Terrorism) Act, 1987. Public anger was at its height and the Birmingham Six, Guildford Four and Maguire cases were constantly in the headlines. Letters were written to the newspapers, special meetings of my party took place, there were pickets at the gates and TDs and Senators, particularly Fianna Fáil Members, were under extreme pressure to vote against the Bill. Seven years later there are no pickets, no special meetings and no constituency pressures. What has changed public attitudes during this time? Sociologists may argue about this, but I believe the heightened level of IRA activity has contributed enormously to minimising the legitimate doubts which people had — and still have — about handing over people to the British judicial system.
The Enniskillen and Warrington bombings in 1988 and 1992, respectively, are landmarks in the changing attitudes of people towards extradition. The murder of innocent Australian tourists in Holland and the murder of an off duty British soldier and his child in Germany heightened our awareness that IRA atrocities committed in the name of Ireland were not confined to the United Kingdom. Suddenly extradition was no longer a question of transferring people to the United Kingdom. However, should we as a sovereign nation and a member of the European Union, who accept civilised values and the sanctity of life, judge such violent acts as purely political? This ambivalent Irish attitude continues today, notwithstanding the overwhelming desire of the people to ensure that justice is not only done, but seen to be done.
It is on that question that I and others have reservations about any legislation which permits the transfer of people to any jurisdiction if we have doubts about its due process. As pointed out by several of my colleagues, we are following the United Kingdom in this regard. That country refuses to extradite its citizens to any country without first establishing that  its judicial procedures are at least in line with its own standards.
We concentrate on the transfer of Irish suspects to the United Kingdom, rather than to any other country and therein lies the dilemma. As a country proud of its humanitarian role world-wide and conscious of its international obligations, which is attempting to deal with an armed group in society who are pursuing political objectives through the force of arms, should we ignore our responsibilities to our citizens here and in Britain by operating a blanket ban on extradition? I believe we cannot.
As long as the IRA continues to pursue the armed struggle, as it calls it, it will find little support among the majority of people, especially if one of its members appears before an Irish court on a terrorist charge. Why then should there be a difficulty when that same person is before an Irish court on foot of an extradition warrant from the United Kingdom authorities? Our attitudes are different because of the historic argument between Ireland and Britain. The legacy of partition still remains the last blot on an otherwise excellent relationship between our two countries and peoples.
There is a belief that people cannot expect a fair trial in an English court, particularly when the charge is a terrorist one. This legislation comes before us at a time when the British judicial system is under severe criticism worldwide, mainly as a result of the depiction of British due process in the film, “In the Name of the Father”. Those of us who watched the Oscar ceremonies the other evening saw an excerpt from the end of the film which had not been shown in the usual promotions. Despite all of the arguments about the truth and accuracy of the events depicted, the essence of the story is true and at the end of the film the words of Mr. Gerry Conlon when he came out of the Old Bailey are spoken by the actor Mr. Daniel Day-Lewis. Although I had read those words and heard them spoken before, they were still chilling.
The events depicted in that film and the related events surrounding other infamous cases are not fictional nor are they  confined to history. The Maguire family, whose case surely cries to heaven for justice, is still awaiting compensation and an apology from the British Government despite Sir John May's chilling indictment of the manner in which their case was handled. All the cases mentioned are still awaiting full compensation under the despicable shadow of a whispering campaign — an attempt to convey to all that those who were convicted were really guilty of the most heinous crimes and only received their freedom on a legal technicality.
However, lest I be accused of emotionalism or of being selective, let me remind the House of the working of the Prevention of Terrorism Act by the British police. While it is directed almost exclusively at Irish people it remains another serious blot on relations between Britain and Ireland. All of us listened in horror to the most recent example where a sick woman was made to sit in her own urine while her son was interrogated only to be released less than 24 hours later innocent of any charge.
I raise these issues because to ignore them is to convey that the passage of this legislation will solve real fears Irish people have whenever they come in contact with the forces of law and order in the United Kingdom. I would point out that in every barrel there are some rotten apples and I hope that the special branch officer who subjected that innocent man and his mother to such inhumane treatment is the exception rather than the rule.
The doubts surrounding extradition extend to the treatment of Irish suspects of terrorist crime by sections of the British media. The impact of this pre-trial by the media should not be over-estimated or under estimated. An Irish judge recently alluded to such despicable treatment as one of the reasons for refusing an extradition warrant. I appreciate that we live in a free society and that the British authorities, no less than the Irish authorities, have no control over a free press — not that we would wish to have it. Witness the extreme discomfort of the  British Government over the decision recently by the Malaysian Government to boycott UK firms tendering for public contracts in Malaysia involving billions of pounds as a result of the Malaysians perception that the British press was anti-Malaysian.
It is into this uncertain environment that the Minister has introduced changes in the existing extradition arrangements between this country and others. Let me not put a tooth in it — the continuing IRA campaign has contributed more to the erosion of civil liberties in Ireland and, more so in the United Kingdom, than any other single act in the last 25 years. The cases to which I referred earlier would not have happened but for the IRA campaign. The IRA share the blame for allowing innocent Irish people to rot in English jails from the mid-1970s to the late 1980s. The IRA is totally to blame for the continuing harassment of Irish people by some United Kingdom police under this iniquitous Prevention of Terrorism Act — and I emphasise only some police, because in my dealings with them over many years I have found them to be courteous, efficient and attentive but I appreciate that has not been the experience of other Irish people.
Ask most Irish people in Britain who they blame most for reducing the quality of their lives in their adopted country over the last 25 years and the answer will be obvious. Repressive legislation was not initiated at the whim of a Government but was initiated, flawed as it may be from an Irish viewpoint, as a response by a society to what it saw as an armed threat against its existence.
Once again I add my voice to those who ask the IRA to announce a cease fire. It must do it not as an act of surrender but as a political strategy. As the Taoiseach, the Minister for Justice and others who are involved in Anglo-Irish relations at the highest level have pointed out publicly, the cessation of violence would clear the way for the serious debate that has been delayed for over 25 years; a debate that would see the beginning of the end of the historic difficulties  and differences between this country and our nearest neighbour.
The legislation before the House is as timely as it is inevitable. The discovery of arms dumps in this country in recent weeks, revealing the most lethal of weapons, is a reminder to all of us of the realities experienced by the Garda and of the responsibilities that have fallen on the Government to ensure that Irish people can go about their lives in an orderly and civilised fashion. Our democratically elected Government has a responsibility in this regard. Does anybody believe that an Irish citizen caught in possession of such weapons should escape due process? Does any Irish person believe that if such a person is before an Irish court suspected of carrying such weaponry for the purpose of taking innocent life they should not be extradited?
Other Members have dwelt on various aspects of the legislation but, essentially, it is a tightening up, a clarification, as the Minister says, of doubts that have prevailed since the original Bill was introduced in 1987. I have attempted in my modest way to highlight real fears that Irish people have, but those fears are somehow surpassed by the horror of continuing violence to innocent people. If I thought that the passage of this Bill would save one innocent life, then this House will have done a good job for our country and for humanity.
Minister for Justice (Mrs. Geoghegan-Quinn) Máire Geoghegan-Quinn
Minister for Justice (Mrs. Geoghegan-Quinn): Ba mhaith liom mo bhuíochas a ghlacadh leis na Seanadóirí a ghlac páirt sa díospóireacht. Beidh deis againn, nuair a thiocfaimid ag Céim an Choiste, arna na pointí éagsula speisialach a bhí ag na Seanadóirí a phlé agus déileáil le aon leasuithe a bhéas molta ag an am sin.
I thank Senator Neville for his welcome for the Bill and his expression of support for its provisions. I agree when he says that people should not be allowed to come here to escape prosecution for crimes committed in other jurisdictions — and that was echoed by Senator Mooney. The 1987 Act dealing with terrorism was introduced to prevent this  happening. However, the courts found that the 1987 Act did not take all violent crimes out of the political offence exception category, and this Bill rectifies that situation and ensures that people can be extradited for any terrorist crime.
As a result of a decision given by the Supreme Court on 19 November 1991, the Government at that stage decided that legislation amending the law on extradition should be prepared. That was made known to the Dáil in reply to a parliamentary question on 26 November 1991, and work on the preparation of the appropriate legislation began immediately. The preparation of any legislation requires time to allow the full consideration of all of the issues involved, and in this case the issues were far more complex than is perhaps normal. The full implications of the Supreme Court decision had to be assessed and a number of possible solutions to the problems had to be considered before the drafting of the scheme of the Bill could commence.
Since work started on this Bill the Government has changed twice and there has been one election, so three Ministers for Justice have been involved in the preparation of the Bill. Despite all these changes which took place over a relatively short period, it was initially planned to publish the Bill last summer but that did not prove possible. It was finally published on 19 January. It has been debated in the other House and some amendments were made there. The Bill is now in the Seanad and it must be thoroughly examined.
The Senator also expressed concern that the High Court would feel obliged to grant bail in extradition cases. In the case of People (Attorney General) v. Gilliland, reported in the 1986 volume of the Irish Law Reports Monthly, page 357, the Supreme Court decided the test for granting bail in extradition cases should not be different from that in ordinary criminal cases.
There are genuine concerns in both Houses and among the public about the operation of bail in certain circumstances. Because I share those concerns I announced on 25 January that I  was referring the matter of bail to the Law Reform Commission for their advice on the options for changing the law. I look forward to that report. If the commission makes recommendations on amending the law I will be happy to bring them before the Oireachtas.
The Senator also mentioned the danger of cross-Border crime and terrorism arising from the relaxation of Border controls after the Maastricht Treaty. I assure him that my counterparts in EU member states and I are concerned about those issues. As late as yesterday we discussed these matters at great length at a meeting of Justice and Home Affairs Ministers of the EU. We are examining measures which could be taken to improve co-operation in fighting crime and terrorism among member states.
Almost every Senator mentioned a number of issues of great importance in a debate of this kind, such as pre-trial publicity in the United Kingdom. Ill-informed comments have been made by Members of the British Parliament and press about what they see as the lack of security co-operation between the security forces here and in the North of Ireland. The Taoiseach, the Tánaiste and I constantly emphasise that security co-operation is as high as it ever has been, and probably as high as it can be. That seems to go unnoticed by these critics.
A story in the London Independent of 16 March this year was headlined “Ireland blamed for lapses of security”. It caused great annoyance not just here but across the Border and within the UK. The Chief Constable of the RUC issued a press release in relation to the story stating that it was completely inaccurate and could not be allowed to go unchallenged. Sir Hugh Annesley's statement read:
I confirm again that the level of cross-Border co-operation is at an all-time high. Specifically [here he refers to the article in the Independent] any suggestion that the Garda recently failed to follow through RUC intelligence in respect of anticipated terrorist  attacks in Great Britain is completely without foundation.
It is strange that I have to quote Sir Hugh Annesley but regardless of what anyone in this House or elsewhere may say, it does not receive the coverage it should in the British media.
All Senators raised the ill-informed comments of Members of the British Parliament. Senator O'Kennedy rightly said these comments come from people who should and do know better. On a number of occasions I have taken the opportunity to firmly reject assertions that this State is not doing all it can to apprehend and convict those responsible for terrorist actions. I mentioned our substantial commitment of Garda and other security resources to the recovery of large quantities of terrorist arms and explosives, such as those found in Sligo mentioned by Senator Mooney. There have also been many successful prosecutions of terrorist suspects.
These are clear indications of this State's commitment to combat terrorism. There is no ambivalence in our attitude. This State does not provide succour or support for those who pursue political ends through violence and there is no question of the State seeking to harbour any person responsible for an act of terrorism.
The authorities both here and in Britain acknowledge that persons suspected of involvement in terrorism reside in both parts of Ireland and in Britain. The authorities in both jurisdictions have the resources, the powers and the commitment to arrest and charge anyone suspected of such involvement. We can never forget that the essential element required is evidence. Suspicion alone is not enough to obtain a conviction for a criminal offence, whether it occurs in Northern Ireland or in Britain.
A number of Senators referred to adverse and prejudicial publicity about offences allegedly committed by Irish people in the UK. In my opening statement I referred to this in the context of the recent decision of the High Court in the Magee case. This publicity was in  English newspapers and as such is outside the control of the Irish authorities but that is not to say I am not as concerned about this publicity as the Senators are.
I intended to raise this at the last intergovernmental conference in advance of the matter being raised by Members of the other House during the debate on this Bill. I proceeded to mention it at the meeting and there was a discussion about how we handle pre-trial publicity in this country and what the consequences would be if similar publicity occurred here. The British authorities were interested and committed themselves to looking seriously at what happens in the UK.
The newspapers carrying such publicity are interested in ensuring that the person is convicted, provided the evidence is found to be true. What they are doing, perhaps inadvertently, is ensuring that no conviction can take place because there can be no extradition if the courts here decide the pre-trial publicity will prevent a fair trial.
Senator O'Kennedy also mentioned safeguards for people where extradition is sought. This is a highly important point. The Bill deals with circumstances where extradition will be granted but there must also be protection for the person whose extradition is sought. As I said in my opening remarks, these protections exist in the current legislation and remain unaffected by the Bill.
Specialty between Ireland and the UK is also being put on a statutory basis. Senator O'Kennedy and others mentioned several high profile cases where specialty was not allowed. This Bill will not come into force until both specialty orders have been put on a statutory basis.
Senator Honan said the use of the political offence exception in extradition proceedings has given rise to much controversy in Ireland. There has been a long series of court cases on the issue and there was significant legislative change in the Extradition (European Convention on the Suppression of Terrorism) Act, 1987. That represented a considerable step in the exclusion of terrorist offences  from the scope of the political offence exception.
For a number of reasons that Act followed the language of the European Convention on the Suppression of Terrorism. As we now know, it is clear that the approach taken in that Bill was not sufficiently comprehensive to cover all the offences which should be covered. This Bill will remedy that position.
I do not consider there to be much benefit in going over what was done or what should have been done by the courts or the Legislature in the past. We must now look to the future. The Bill, as it stands, is a clear and unequivocal statement that the use of violence to achieve political means is unacceptable in a democratic society and cannot be justified; all Senators made that point.
Senator Maloney expressed the wish that there should be greater international co-operation regarding extradition. As we are aware, international co-operation has grown over the past 40 years. The European Convention on Extradition was drafted in the 1950s while the European Convention on the Suppression of Terrorism was drafted in the 1970s. These two conventions are reflected in our legislation. Yesterday, at the meeting in Brussels of EU Justice and Home Affairs Ministers there was a lengthy discussion on the whole area of extradition. We discussed the need for greater co-operation between the 12 member states on extradition matters so that it would be dealt with on the same basis between each of the 12 states. The years ahead will see much greater international co-operation in the area of extradition.
Other Senators referred to allegations that we have been either slow or reluctant to enact effective extradition legislation. Allegations of this nature, as I am sure everybody agrees, are totally unfounded. We have enacted legislation and kept it under review. Where deficiencies were shown to exist, we have always been willing to enact amending legislation. This Bill is proof, if proof were needed, of our determination to legislate in an evenhanded manner on extradition. The allegations  to the contrary are without foundation.
Senator McGowan raised the question of the application of extradition legislation to persons wearing uniforms. He will be happy that I can assure him that the wearing of a uniform does not confirm immunity from extradition.
I hope I have covered most of the points that were raised. I am most happy with the support I have received from the Senators who welcomed the Bill. From all the comments, it is clear that all Members have given careful consideration to the Bill. Extradition is important and complex and it is, therefore, important that the Bill is completely, carefully and fully debated. Three statutes are devoted to it and there is a considerable volume of case law. This is a crucially important topic dealing as it does with the freedom of the individual.
I also wish to be associated with the congratulations to the Garda Síochána. Senator Mooney mentioned this briefly. They carry out unstinting work on behalf of the Irish people in pursuing, and having considerable success in finding, arms and explosives in different parts of the country. Each time there is a find it reduces the number of innocent lives that can be taken in our name in Northern Ireland, Great Britain or, as Senator Mooney mentioned, on the European mainland.
I thank all the Senators that took part in the debate and I welcome their comments.
Question put and agreed to.
Agreed to take remaining Stages today.
Seanad Éireann 139 Extradition (Amendment) Bill, 1994: Second Stage.