European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012

PART 1 PRELIMINARY AND GENERAL

1.. Short title and collective citation.

1.— (1) This Act may be cited as the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012.

(2) The European Arrest Warrant Act 2003 and Part 2 of this Act may be cited as the European Arrest Warrant Acts 2003 and 2012.

(3) The Extradition Acts 1965 to 2001 and Part 4of this Act may be cited as the Extradition Acts 1965 to 2012.

PART 2 APPLICATION TO THIRD COUNTRIES OF EUROPEAN ARREST WARRANT ACT 2003

2.. Order.

2.— (1) In this section—

“Act of 2003” means the European Arrest Warrant Act 2003;

“European Union” has the same meaning as it has in the European Communities Act 1972;

F1[…]

F2[‘relevant Member State’ has the same meaning as it has in the Act of 2003;]

F3[‘third country’means a country other than the State or a relevant Member State;]

(2) Subject to subsections (3) and (4), the Minister for Foreign Affairs and Trade, after consultation with the Minister for Justice and Equality, may by order provide that all or any of the provisions of the Act of 2003 which would, apart from this section, apply only in relation to F3[relevant Member States] shall apply in relation to a third country.

(3) The Minister for Foreign Affairs and Trade may make an order under subsection (2) only where there is in force an agreement between the third country concerned and the European Union for the surrender of persons wanted for prosecution or punishment.

(4) The Minister for Foreign Affairs and Trade may include, in an order under subsection (2), only such conditions, exceptions and qualifications to the Act of 2003 in relation to the third country concerned as are contained in the agreement referred to in subsection (3).

(5) An order under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling it is passed by either such House within the next 21 days on which that House has sat after the order has been laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.

PART 3 AMENDMENTS TO EUROPEAN ARREST WARRANT ACT 2003

3.. Interpretation — Part 3.

3.— In this Part, “Act of 2003” means the European Arrest Warrant Act 2003.

4.. Amendment of section 2 of Act of 2003.

4.— Section 2(1) of the Act of 2003 is amended by the insertion of the following definition:

“ ‘Council Framework Decision 2009/299/JHA’ means Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial,”.

5.. Amendment of section 10 of Act of 2003.

5.— Section 10 (inserted by section 71 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003 is amended by substituting “subject to and in accordance with the provisions of this Act, be arrested” for “subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested”.

6.. Amendment of section 11 of Act of 2003.

6.— The following is substituted for section 11(1) (inserted by section 72 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003:

“(1) A European arrest warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision as amended by Council Framework Decision 2009/299/JHA.”.

7.. Amendment of section 12 of Act of 2003.

7.— Section 12 of the Act of 2003 is amended by inserting the following subsection after subsection (3A) (inserted by section 73(b) of the Criminal Justice (Terrorist Offences) Act 2005):

“(3B) The written record of a document that is transmitted in accordance with subsection (3)(b) shall be deemed to be the document that was transmitted.”.

8.. Amendment of section 13 of Act of 2003.

8.— (1) The following is substituted for section 13(2) (amended by section 9 of the Criminal Justice (Miscellaneous Provisions) Act 2009) of the Act of 2003:

“(2) If, upon an application under subsection (1), the High Court is satisfied that, in relation to a European arrest warrant, there has been compliance with the provisions of this Act, it may endorse the European arrest warrant for execution.”.

(2) Section 13(3) of the Act of 2003 is amended by substituting “and the warrant or the true copy of the warrant, as the case may be, endorsed” for “and the warrant, the true copy of the warrant, as the case may be, endorsed”.

9.. Amendment of section 15 of Act of 2003.

9.— Section 15 (amended by section 11 of the Criminal Justice (Miscellaneous Provisions) Act 2009) of the Act of 2003 is amended—

(a) by substituting the following for paragraph (d) of subsection (1):

“(d) if the surrender of the person is not prohibited by Part 3,”,

(b) by substituting the following for paragraph (d) of subsection (2):

“(d) if the surrender of the person is not prohibited by Part 3,”,

and

(c) by substituting the following for subsections (3) to (9):

“(3) An order under subsection (1) or (2) shall, subject to section 18, take effect upon the expiration of 10 days beginning on the date of the making of the order or such earlier date as the High Court, on the application of the Central Authority in the State and with the consent of the person to whom the order applies, directs.

(3A) Subject to subsections (5) and (6), a person to whom an order for the time being in force under subsection (1) or (2) applies shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect in accordance with subsection (3).

(3B) An appeal against an order under subsection (1) or (2), or a decision not to make such an order, may be brought in the Supreme Court if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(4) Where the High Court makes an order under subsection (1) or (2), it shall, unless it orders postponement of surrender under section 18—

(a) inform the person to whom the order relates of his or her right to make a complaint under Article 40.4.2° of the Constitution at any time before his or her surrender to the issuing state,

(b) record in writing that the person concerned has consented to his or her being surrendered to the issuing state concerned,

(c) order that that person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) for a period not exceeding 20 days pending the carrying out of the terms of the order, and

(d) direct that the person be again brought before the High Court—

(i) if he or she is not surrendered before the expiration of the time for surrender under subsection (3A), as soon as practicable after that expiration, or

(ii) if it appears to the Central Authority in the State that, because of circumstances beyond the control of the State or the issuing state concerned, that person will not be surrendered on the expiration referred to in subparagraph (i), before that expiration.

(5) Where a person is brought before the High Court pursuant to subsection (4)(d), the High Court shall—

(a) if satisfied that, because of circumstances beyond the control of the State or the issuing state concerned, the person was not surrendered within the time for surrender under subsection (3A) or, as the case may be, will not be so surrendered—

(i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person, and

(ii) order that the person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) for a period not exceeding 10 days after the date fixed under subparagraph (i), pending the surrender,

and

(b) in any other case, order that the person be discharged.

(5A) A person to whom an order for the time being in force under subsection (5)(a) applies—

(a) shall be surrendered to the issuing state concerned not later than 10 days after the new date fixed under that subsection, or

(b) if surrender under paragraph (a) has not been effected, shall be discharged.

(5B) Where a person is ordered, under subsection (4)(c), to be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) and is brought before the High Court pursuant to subsection (4)(d), the person shall be deemed to be in lawful custody at all times beginning at the time of the making of the order under subsection (4)(c) and ending when he or she is brought before the Court.

(6) Where a person—

(a) lodges an appeal pursuant to subsection (3B), or

(b) makes a complaint under Article 40.4.2° of the Constitution,

he or she shall not be surrendered to the issuing state while proceedings relating to the appeal or complaint are pending.

(7) Where a person lodges an appeal pursuant to subsection (3B), the High Court may remand the person in custody or on bail pending the hearing of the appeal and, for that purpose, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence.”.

10.. Amendment of section 16 of Act of 2003.

10.— Section 16 (amended by section 76 of the Criminal Justice (Terrorist Offences) Act 2005) of the Act of 2003 is amended—

(a) by substituting the following for paragraph (c) of subsection (1):

“(c) the European arrest warrant states, where appropriate, the matters required by section 45 (inserted by section 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012),”,

(b) by substituting the following for paragraph (e) of subsection (1):

“(e) the surrender of the person is not prohibited by Part 3.”,

(c) by substituting the following for paragraph (a) of subsection (2):

“(a) the European arrest warrant, including, where appropriate, the matters required by section 45 (inserted by section 23 of the European Arrest Warrant (Application to Third Countries and Amendment) and Extradition (Amendment) Act 2012), is provided to the court,”,

(d) by substituting the following for paragraph (d) of subsection (2):

“(d) the surrender of the person is not prohibited by Part 3.”,

and

(e) by substituting the following for subsections (3) to (13):

“(3) An order under subsection (1) or (2) shall, subject to section 18, take effect upon the expiration of 15 days beginning on the date of the making of the order or such earlier date as the High Court, on the application of the Central Authority in the State and with the consent of the person to whom the order applies, directs.

(3A) Subject to subsections (5) and (6), a person to whom an order for the time being in force under subsection (1) or (2) applies shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect in accordance with subsection (3).

(4) Where the High Court makes an order under subsection (1) or (2), it shall, unless it orders postponement of surrender under section 18—

(a) inform the person to whom the order relates of his or her right to make a complaint under Article 40.4.2° of the Constitution at any time before his or her surrender to the issuing state,

(b) order that that person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) for a period not exceeding 25 days pending the carrying out of the terms of the order, and

(c) direct that the person be again brought before the High Court—

(i) if he or she is not surrendered before the expiration of the time for surrender under subsection (3A), as soon as practicable after that expiration, or

(ii) if it appears to the Central Authority in the State that, because of circumstances beyond the control of the State or the issuing state concerned, that person will not be surrendered on the expiration referred to in subparagraph (i), before that expiration.

(5) Where a person is brought before the High Court pursuant to subsection (4)(c), the High Court shall—

(a) if satisfied that, because of circumstances beyond the control of the State or the issuing state concerned, the person was not surrendered within the time for surrender under subsection (3A) or, as the case may be, will not be so surrendered—

(i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person, and

(ii) order that the person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) for a period not exceeding 10 days after the date fixed under subparagraph (i), pending the surrender,

and

(b) in any other case, order that the person be discharged.

(5A) A person to whom an order for the time being in force under subsection (5)(a) applies—

(a) shall be surrendered to the issuing state concerned not later than 10 days after the order takes effect, or

(b) if surrender under paragraph (a) has not been effected, shall be discharged.

(5B) Where a person is ordered, under subsection (4)(b), to be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) and is brought before the High Court pursuant to subsection (4)(c), the person shall be deemed to be in lawful custody at all times beginning at the time of the making of the order under subsection (4)(b) and ending when he or she is brought before the Court.

(6) Where a person—

(a) lodges an appeal pursuant to subsection (11), or

(b) makes a complaint under Article 40.4.2° of the Constitution,

he or she shall not be surrendered to the issuing state while proceedings relating to the appeal or complaint are pending.

(7) Where the High Court decides not to make an order under subsection (1) or (2)—

(a) it shall give reasons for its decision, and

(b) the person shall, subject to subsection (8), be released from custody.

(8) Subsection (7)(b) shall not apply if—

(a) (i) the person has been sentenced to a term of imprisonment,

(ii) on the date on which he or she would, but for this subsection, be entitled to be released under subsection (7), all or part of the term of imprisonment remains unexpired, and

(iii) the person is required to serve all or part of the remainder of that term of imprisonment in the State,

or

(b) (i) the person has been charged with or convicted of an offence in the State, and

(ii) on the date on which he or she would, but for this paragraph, be entitled to be released from custody under subsection (7), he or she is required to be in custody by virtue of having been remanded in custody pending his or her being tried, or the imposition of sentence, in respect of that offence.

(9) If the High Court has not, after the expiration of 60 days from the arrest of the person concerned under section 13 or 14, made an order under subsection (1) or (2) or subsection (1) or (2) of section 15, or has decided not to make an order under subsection (1) or (2), it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reasons therefor specified in the direction, and the Central Authority in the State shall comply with such direction.

(10) If the High Court has not, after the expiration of 90 days from the arrest of the person concerned under section 13 or 14, made an order under subsection (1) or (2) or subsection (1) or (2) of section 15, or has decided not to make an order under subsection (1) or (2), it shall direct the Central Authority in the State to inform the issuing judicial authority and, where appropriate, Eurojust in relation thereto and of the reason therefor specified in the direction, and the Central Authority in the State shall comply with such direction.

(11) An appeal against an order under subsection (1) or (2) or a decision not to make such an order may be brought in the Supreme Court if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(12) Where a person lodges an appeal pursuant to subsection (11), the High Court may remand the person in custody or on bail pending the hearing of the appeal and, for that purpose, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence.”.

11.. Amendment of section 18 of Act of 2003.

11.— The following is substituted for section 18 of the Act of 2003:

“18.— (1) The High Court may direct that the surrender of a person to whom an order under subsection (1) or (2) of section 15 or subsection (1) or (2) of section 16 applies be postponed in accordance with this section where—

(a) the High Court is satisfied that circumstances exist that would warrant that postponement, on humanitarian grounds, including that a manifest danger to the life or health of the person concerned would likely be occasioned by his or her surrender to the issuing state,

(b) the person is being proceeded against for an offence in the State, or

(c) the person has been sentenced to a term of imprisonment for an offence and is required to serve all or part of that term of imprisonment in the State.

(2) The postponement shall continue until the High Court makes an order under subsection (4).

(3) Where the High Court decides to postpone a person’s surrender under this section, it shall remand the person in custody or on bail and, for that purpose, the High Court shall have the same powers in relation to remand as it would have if the person were brought before it charged with an indictable offence.

(4) The High Court shall make an order ending the postponement of surrender—