AG urges caution on move towards common measures against terrorism

The Attorney General, Mr Michael McDowell, is paying close attention to the efforts to reach agreed EU-wide definitions of terrorist…

The Attorney General, Mr Michael McDowell, is paying close attention to the efforts to reach agreed EU-wide definitions of terrorist offences and, on foot of that, to establish a common EU-wide arrest warrant for terrorist offences.

While the Government, along with its 14 EU counterparts, moved quickly last week to agree common anti-terrorist measures, Mr McDowell has since urged caution.

As senior officials prepare for a three-day session in Brussels next week to hammer out the details, Mr McDowell has told colleagues that careful consideration must be given to attempts to further harmonise EU judicial and policing measures.

European legal systems differ and Mr McDowell's concern is understood to be that the plans to harmonise legislation governing terrorism could run into domestic legal or constitutional difficulties. Legal obstacles to harmonisation include the fact that Ireland and Britain have common law systems while the other EU states have civil law systems.

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This is far from a theoretical point: other EU states allow for investigative detention, for example, while Ireland and Britain emphatically do not. Under Irish law it is required that a prima facie case be established before a person is extradited from this State to face trial elsewhere. Any attempt to drop that requirement could run into domestic legal problems.

Supporters of harmonisation argue that if the 15 member-states can agree a common definition of terrorist offences, then there should be no problem extraditing from one member-state to another as a matter of routine.

However, those with reservations say that the differences between the EU's national legal jurisdictions may create significant problems. They also say there is no obvious problem within the EU on the extradition issue in the first place, and that therefore there is nothing that needs fixing.

Detailed discussions on the matter begin in Brussels next week.

Several further sessions are expected between officials of the 15 member-states, and then between the 15 justice ministers before a detailed package of proposals is ready for approval in December at the EU summit in Laeken, Belgium.

The options are still being explored in Dublin. To alleviate concerns over investigative detention, one possibility would be to seek an assurance that extradition would only take place on the basis that the person was to be charged with a specific offence, rather than to be placed in detention pending the outcome of an investigation.

Department of Justice sources stress that the agreement to develop EU-wide co-operation on the issue was not a knee-jerk response to the attacks on the US. Most of the measures were already agreed in principle at a special EU Summit in Tampere, Sweden, last year.

What has happened is that their implementation has been accelerated, and the EU heads of state and Government have set December as a deadline for agreement on how to bring them into force.

In effect, the terrorist attacks in the US have provided a boost to those within the EU campaigning for greater police and judicial harmonisation. In Brussels last week, the concerns of those in member-states who wanted to preserve the character of their national judicial systems took second place to the need to be seen to respond swiftly and in a united way in support of the United States.

Mr McDowell has expressed reservations in the past about moves towards greater EU harmonisation in the absence of domestic political debate. However, he is understood to have rooted his concerns over what was agreed last week in legal rather than political argument.

Meanwhile, the Government has accelerated the Dβil's consideration of the latest extradition Bill, which will bring into force two European conventions on extradition which were agreed some years ago.

The Bill will relax the dual criminality rule - the rule that the act concerned be an offence in both the requesting and requested state in extradition proceedings. It includes fiscal offences as extraditable offences and a number of changes designed to streamline existing procedures.

The Bill was being prepared before the attacks on the US, but is to become a priority for Dβil debate before Christmas as a result of the attacks.

A team of counter-terrorist specialists is to be set up within Europol for a renewable period of six months and a senior Garda specialising in the area is to be appointed as a liaison officer with this group.

The team is to carry out a joint assessment of the extent of any terrorist threat in Europe. It will list possible targets, potential damage and consequences for the security of member-states. It will also identify areas in which preventive measures should be taken.

The Garda Commissioner is to meet the other 14 national police chiefs shortly to agree details of this team. The heads of police intelligence services are also to begin regular meetings.

Ironically, despite all these moves to harmonise internal EU extradition procedures, difficulties remain in Ireland and other EU member-states on the issue of extradition to the US. There is a standard clause in the extradition treaties signed by many EU states, including Ireland, with the US, that capital punishment would not be applied to the extraditee.

In other words, in the unlikely event of Osama bin Laden or any suspected terrorist wanted in the US being found in Ireland, the State would seek a guarantee from the US Attorney General that if found guilty, he would not be put to death.