Minister for Justice (Deputy Helen McEntee) - I move:

That Dáil Éireann approves the exercise by the State of the option or discretion under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, to take part in the adoption and application of the following proposed measure:

Proposal for a Regulation of the European Parliament and of the Council on the transfer of proceedings in criminal matters, a copy of which was laid before Dáil Éireann on 2nd May, 2023….

…Deputy Pa Daly: As the Minister stated, organised crime is becoming increasingly transnational and this proposal aims to address that development, along with other concerns. It is useful to put on record recent developments in organised crime throughout Europe. In April, Interpol announced its largest firearms trafficking operations, which saw more than 14,000 suspects arrested across Central America and South America and an unprecedented €5.7 billion in illegal narcotics seized. In May, the organisation held its 50th European regional conference, at which its secretary general, Jürgen Stock, commented on these arrests, "Over the last five years, [drug] trafficking and consumption have increased by an order of magnitude, with Europe one of the main transit and destination markets." He further stated, "We continue to see record seizures at European borders and ports, and a corresponding rise in violent crime, corruption and money laundering of unprecedented scale." A 2022 Interpol survey of its members highlighted that money laundering and cybercrime were a major concern. The Interpol Global Crime Trend report stated:

Financial crimes and cybercrime are invariably linked, as a significant amount of financial fraud takes place through digital technologies (making it "cyber-enabled") and cybercriminals also depend on financial fraud to launder their illicit gains. In this way, while "cybercrime-as-a-service" is a well-known criminal concept, the pandemic has also hastened the emergence of "financial crime-as-a-service", including digital money laundering tools that can prove critical for criminals seeking to cash out.

We in Ireland have seen the results of crime and drug trafficking, which have filtered down to every local village. There is an increasing amount of co-operation rather than competition between groups but these actions are still backed by a threat of violence. Although the groups know murder might be bad for business, they still rely on intimidation and gun-running when they need to so do.

The efforts of the EU in this area also deserve to be highlighted. The European Multidisciplinary Platform Against Criminal Threats, EMPACT, had good results in 2022, leading to 9,900 arrests, identification of 4,000 victims of trafficking, the seizure of €180 million and 62 tonnes and the initiation of 9,200 investigations.

Closer to home, serious crime still rears its head. Comparisons with 2020 and 2021 are difficult due to the pandemic but offences such as attempts or threats to murder, assaults, harassments and related offences, damage to property and kidnapping all increased from 2019 to 2022.

There are obvious ongoing investigations and court cases that would not be appropriate to detail here but which are relevant. However, there are other concerns and issues that this proposal addresses beyond just the transnational context. The first relates to the individual human rights of persons. As the Commission itself put it: "Parallel or multiple prosecutions can be inefficient and ineffective, but also possibly detrimental to the rights of individuals concerned as a person may not be prosecuted or punished for the same offence twice. It is a criminal law principle that a person cannot be punished or be subject to several procedures twice." In a lot of criminal law jurisdictions, including our own, the double jeopardy rule is essentially the same. The temptation first and foremost is to look at the punitive aspect of law but courts will strike down laws where they do not circumscribe individual rights in a manner proportionate to their aim. 

This proposal addresses other issues that arise in cross-border investigations and trials. Duplicate investigations mean resources can be wasted, and hearings in other countries can see witnesses called in a number of countries. This may increase the risk of the intimidation of witnesses, or maybe even non-engagement. According to the briefing we received, in order to combat this, this proposal is to improve the efficient and proper administration of justice within the EU; to improve the respect of fundamental rights in the process of transfer of criminal proceedings; to improve the efficiency and legal certainty of transfer of criminal proceedings; and to enable the transfer of criminal proceedings where they are in the interest of justice but currently not possible between member states, and reduce the phenomenon of impunity.

I welcome some of the safeguards the Minister mentioned in her opening statement, that it is not proposed to impose an obligation to accept a request for a transfer of proceedings and member states are afforded a wide range of grounds for refusal. It is important these criteria must be met before the transfers are effected. However, we can expect some significant difficulties with implementing these proposals. The transfer of prisoners between countries can be fraught with complexity, which has only recently been addressed after years of legal challenges. It is right and proper we maintain our own system for prosecuting and sentencing, and proposals such as these would have to grapple with that reality. Notwithstanding this, the proposal has merit and Sinn Féin will not be opposing it.

I also note from the Minister's opening statement that there are four elements to the criteria: that the criminal offence must have taken place wholly or partly within the state; that the person is a national or resident of the state; the state has refused to surrender the person; or where most of the evidence is located in the requested state. Overall, I welcome the proposal and will not be objecting to it.

Deputy Peter Fitzpatrick: Most forms of international co-operation in criminal matters, such as exchange of police information, the gathering of evidence, the freezing of assets and extradition, have now been regulated to some extent by European Union legislation. However, one classical form of co-operation has been largely immune from the influence of the EU legislators. This is the area of transfer of proceedings. At present, EU member states currently transfer criminal proceedings between themselves using a variety of different legal instruments, rather than a uniform legal framework. However, increasing cross-border crime due to open borders and in cases of moving across Europe has enabled criminals to be easily active across borders. This has subsequently led to more cases where several member states have jurisdiction to prosecute the same case, with Europol reporting that some 5,000 international organised crime groups were under investigation in the EU in 2017.

Most EU states rely on the 1959 European Convention on Mutual Assistance in Criminal Matters, but under this agreement, transfers are largely unregulated and subject to national laws. A limited number of international instruments have gone a step further to allow a receiving state to assume jurisdiction upon acceptance of the transfer. It is, therefore, critical that we continue to modernise our justice system to ensure it is prepared to respond to current challenges, particularly in an increasingly border-less Europe. Generally speaking, a transfer should be done in the interests of proper administration of justice, as parallel or multiple prosecutions can be inefficient and ineffective, but also discriminatory to the rights of the individuals concerned...

[For the full debate, click this link to the Oireachtas website]