Generally, criminal law does not extend beyond international state boundaries. Persons are usually charged only with crimes committed within the state either in terms of the cause or effect.
Certain exemptions and exceptions exist by statute. Certain crimes committed in Northern Ireland may be tried in Ireland under the Criminal Law (Jurisdiction) Act 1976. There are other examples, such as under the Child Trafficking and Pornography) Act 1998 whereby offences committed abroad may be prosecuted within Ireland.
Even in respect of the limited number of cases where prosecutions for offences outside the State are possible, significant practical difficulties exist in terms of investigation, compelling witnesses and the gathering of evidence.
Within the European Union, the European Arrest Warrant has radically changed the enforcement of criminal law across EU borders. Under this procedure which commenced in 2003, warrants for arrest in European Union countries are usually enforceable in other EU states. This has largely removed the requirement for extradition between European Union states.
In relation to states outside of the European Union, a possibility of extradition, being brought to Ireland or sent from Ireland to face charges for the crime exists where there is in force an extradition treaty with the state concerned.
Not all extradition treaties are the same. For example, some allow for extradition for revenue offences while others do not. In the context of an extradition between the Republic of Ireland and another state or jurisdiction, the specific extradition treaty would need to be considered.
The general principle is that once an extradition treaty is in place, then subject to the terms and conditions of the legislation and the treaty, extradition must be granted.
Extradition treaties must be reciprocal. It must be possible for a person to be extradited to the state or from the state concerned. The offence must be permissible under the laws of both countries.
Extradition may only be granted for an offence punishable under the laws of both states by prison for at least one year or a more severe penalty. If the penalty has actually been imposed in the case, it must be at least four months.
If an extradition request is made in respect of some offences which fall within the above category and some which do not, then extradition may be made, conditionally in respect of the latter offences only.
Extradition is not usually granted for a political offence or an offence connected with a political offence. Similarly, if there are grounds for believing the extradition for an ordinary criminal offence has been made for the purpose of prosecuting an offence on account of race, religion, nationality or political opinion, the exclusionary rule applies. The rule does not apply to certain types of offences. International conventions have excluded many types of offences from the principle.
Citizens may be extradited if the treaty so provide. Where an Irish citizen commits an offence outside Ireland for which he would be liable for extradition but for the fact that he is an Irish citizen, then he is guilty of an offence and may be convicted and punished as if the matter was done in the state.
Proceedings in respect of such an offence may only be taken by direction of the Attorney General following a request by the other state.
Extradition may not be granted for military offences.
Extradition may only be granted for revenue offences where this is specifically provided in the treaty. e.g. the Ireland U.S. treaty.
Extradition may not be granted for offences committed within the State. It may not be granted where a prosecution is pending in the State for the offence concerned.
Extradition is not granted if the person has been acquitted or been the subject of a final judgment in the state or another (third) state, in respect of the offence concerned.
Extradition may be refused by the Minister for an offence which is also an offence under the law of the State if the Attorney General has decided not to institute or to terminate proceedings in respect of the offence.
Extradition is not allowed where the person has become immune under the law of the requested state by lapse of time from prosecution or punishment It is not granted where a person has been pardoned in Ireland or in the requesting state.
Extradition is not permitted for an offence punishable by death unless the requesting state gives an assurance, that the death penalty will not be carried out.
A person shall not be extradited unless it is a part of the law of the requesting state that he may only be prosecuted for the offence for which extradition is sought, other with than in the case of certain limited exceptions, such as
- where the person has had the opportunity to leave the state concerned but has not done so within 45 days of this final discharge or has returned after leaving it.
- in some cases, other offences which do not carry imprisonment or restriction of liberty may be prosecuted subject to conditions or
- in respect of a sentence or order of which he has already been convicted, subject to certain conditions and consents.
Extradition may only be to a state which by its law does not allow extradition to a further third state, without the consent of the Minister for Justice or where the person concerned had the opportunity to leave the state and has not done so within 45 days has left and returned.
The above-mentioned so-called rule of speciality by which a person must generally be tried only in respect of an offence for which he has been extradited applies equally to inward extradition into the State.
Request for ExtraDition
There are provisions for requests for extradition. The extradition treaty may provide that some proof of the offence concerned must be produced. The request must be supported by official copies of the conviction or warrant of arrest. There must be a statement of the offence specifying its time and place of commission, a description of the offence and its status under the relevant law. There must be a copy of relevant law and an accurate description of the person sought.
The Minister is obliged to certify that the request has been made. The certificate is produced in an application to a High Court judge who must issue a warrant of arrest. The extradition warrant may be executed by an Garda Síochána.
In the case of urgency, a judge of the High Court may issue a provisional warrant of arrest without a Minister certificate in a case of urgency. An application is made by his senior member of the Garda Síochána for the provisional arrest warrant.
When the High Court is satisfied
- that the extradition request has been made
- that the relevant extradition treaty is in force and the legislation applies
- that the extradition is permissible under the legislation
When the required documents have been produced, an order shall be made committing the person to prison to await the order of the Minister for Justice. The court has the power to adjourn and remand the matter pending making a final order.
Once the order is made, the person is informed that he will be surrendered after 15 days. He is informed of his right to apply to the High Court to challenge the legality of his detention. A person may consent to be surrendered to the state concerned.
A person may not be surrendered to the other state except with his consent given before a High Court judge, until the 15-day period has expired or until any challenge to the legality of the detention has been heard and determined.
The Minister for Justice has the power to order the extradition if the person has not been discharged in a High Court challenge to the legality of the detention. If the person awaiting surrender to the requesting state is not surrendered within a month, the High Court may on application discharge him from custody.