Criminal Justice (Miscellaneous Provisions) Bill 2009: Second Stage
I welcome the Minister. I welcome the opportunity to participate in this Second Stage debate on the Criminal Justice (Miscellaneous Provisions) Bill 2009.
When we discuss criminal justice legislation we must try to find a balance between the need to respond to the real problems of crime we confront every day but also the need to protect civil liberties and, as legislators, that is what we must be mindful of when we scrutinise and debate legislation such as that before the House.
Many crimes are transnational in nature and therefore it is appropriate we are discussing proposed amendments to the European Arrest Warrant Act, which was adopted in 2003 and has been in operation for approximately five years. We have had time to assess the effectiveness of the legislation and what must change.
Some of the amendments proposed in this legislation are a matter of clarification or removing ambiguity. They provide more accurate definitions. Section 8 is allowing more modern means of communication for the transmission of documents under the Schengen information system, including e-mail. That is interesting because we must update the Schengen information system, which is an electronic alert system that facilitates the exchange of information between police and authorities in the various member states. We must recognise that we must move with the times and use more modern electronic systems and modes of communication. Much in the legislation can be supported.
I welcome the provision in section 21. As soon as we start talking about the transmission of documents, particularly sensitive documents, we are looking at the issue of data protection. Section 23(1) provides for the Data Protection Commissioner to assume certain supervisory functions that arise under the Schengen Agreement. I hope the Data Protection Commissioner will be adequately resourced to do that because after five years of its operation the European arrest warrant may not be used that regularly. I am not sure how regularly arrest warrants are issued under the European Arrest Warrant Act 2003 but it will be something that happens more regularly and the Data Protection Commissioner could find a burden on the office unless those resources are provided.
I have some concerns about the legislation which the Minister might clarify because I may not be interpreting the legislation correctly. One of my concerns has to do with section 10 which deals with section (14)(1) of the 2003 Act. It provides that a garda may arrest without warrant any person whom he or she has reasonable grounds to believe is a person named in an alert as defined in section 2 as amended by section 14 of the European Arrest Warrant Act 2003. My concern is if the garda can arrest that person without a warrant, section 10(3) of the legislation then provides that once a person is given a copy of the alert, the person is to be brought before the High Court as soon as possible after the arrest. I do not know the length of time it can take the High Court to hear such a case but once the person appears before the High Court, the High Court can then remand the person in custody or on bail at its discretion for a period of not more than 14 days for the production to the court of the European arrest warrant to which the alert relates.
It strikes me that where an error is made, and I have no doubt errors will be made from time to time under this alert system, an individual could find himself or herself in custody effectively for more than a two week period depending on how long it takes the High Court to hear the application by the member of the Garda Síochána. That concerns me from a civil liberties point of view. I ask the Minister to clarify that point and provide some reassurances about safeguards that might be built into the legislation to prevent somebody being unnecessarily detained.
I have some concerns about the consent to surrender in section 11(c), which inserts a new subsection (3A) restricting the grounds of appeal to the Supreme Court against a decision made under the section to cases which are certified by either the High Court or the Attorney General as involving a point of law of exceptional public importance. That seems to suggest that where the High Court deems that the European arrest warrant issued in respect of a particular individual is appropriate and correct, once the matter is certified by the High Court the individual has no grounds of appealing to the Supreme Court. As far as I understand that is not the case with an ordinary arrest warrant issued by the members of the Garda Síochána and I am concerned that the individual would not have access to a higher court of appeal. I ask the Minister to clarify whether there is another body to which the individual can appeal, perhaps a European court, although I am not aware of one.
I have some concern about section 20(b) and the insertion of new section (45A) on the identification procedures. The new section (45A)(1) authorises the Garda Síochána to photograph, fingerprint and palm print persons arrested under the Act for the sole purpose of verifying the person’s identity. Identification material of that type is often sent with European arrest warrants and hitherto the Garda Síochána had no power to take similar identification material for comparison purposes. However, the new section (45A)(4) provides that a member of the Garda Síochána may use reasonable force to take material under subsection (1) where the person fails or refuses to allow the material to be taken. I would be somewhat concerned about the latitude that might be given in that respect. I accept there are certain safeguards built into the legislation in that those powers may only be exercised on the authority of a garda of the rank of superintendent or higher, that the material pursuant to the section has to be taken in the presence of a garda or inspector of higher rank and that the taking of material pursuant to the section shall be video recorded. However, I am somewhat concerned about the definition of “reasonable force”. Is that provided somewhere in the legislation? I do not see it.
Also, the new section (45A)(10) creates an offence of obstruction of a garda in the exercise of powers under the section, with penalties of €5,000 or 12 months imprisonment or both. I would be concerned that if an individual resists in the exercise of reasonable force they may find themselves subject to a considerable fine or 12 months imprisonment, or both. I ask the Minister to address that question.
On Part 4, amendment of the Firearms Acts 1925 to 2007, I agree with the Minister’s approach. Like others I have been lobbied by some of the gun control groups and special interest groups and I understand their concerns but as the Minister mentioned in his contribution, 2,000 handguns were licensed in the five year period since 2004. I do not have the figures for the number stolen but it is a worrying number. The growth in ownership of handguns is a matter of concern.
The debate about the right to carry arms bears some similarity to debates in the US. Our police force is civilian and unarmed. The idea that the State would encourage the growth in ownership of licensed or unlicensed handguns, when we have a largely unarmed civilian police force, must be examined. The Green Party is supportive of the Minister’s position in restricting section 3D, which provides that no new firearms certificates will be granted, with limited exceptions, for short firearms.
I support the ban on the form of target shooting known as practical shooting. The duration of firearms certificates should be three years unless revoked. We support these measures and we support the thrust of the legislation.
