Extraterritorial jurisdiction in Irish law

The state of Ireland asserts universal jurisdiction and extraterritorial jurisdiction in various situations. Ireland has universal jurisdiction for murder and manslaughter committed by its citizens.[1] This dates from at least 1829,[2] retained by the Offences against the Person Act 1861, as adapted in 1973.[3]

Some international conventions to which the state is party require universal jurisdiction, as reflected in the enabling legislation. Examples include the European Convention on the Suppression of Terrorism[1][4] the International Criminal Court,[5] and the UN Convention against Transnational Organized Crime.[6][7]

Definition

Some acts of the Oireachtas criminalise actions abroad by citizens and residents of Ireland. These include counterfeiting money,[8] money laundering,[9] and corruption.[10] In some cases, an action is criminal in Irish law only where it is also a crime in the place where it occurred. Examples are child sex tourism[1][11] and female genital mutilation.[12]

History

In the 1922 debates on the draft Constitution of the Irish Free State, Darrell Figgis' proposal to have universal jurisdiction over Free State citizens was rejected by Kevin O'Higgins, who said "to set down here in our Constitution a principle of that kind, with no guarantee whatever that it will be honoured or accepted by any single country on the face of the earth is simply inviting ridicule".[13] The Free State's constitutional status was modelled on that of the Dominion of Canada, in which the Colonial Laws Validity Act 1865 was interpreted as not allowing extraterritoriality. While Free State governments rejected in principle the idea that the 1865 act applied to their jurisdiction, in practice no attempt to breach it was made prior to the Statute of Westminster 1931, which explicitly declared that Dominions could pass extraterritorial laws.[14][15]

After the current constitution was introduced in 1937, the original text of Article 3 stated that the Ireland's laws would have the same extraterritorial effect as those of its predecessor state, the Irish Free State.[16] The Treason Act 1939 applies to Irish citizens and residents for acts committed outside the state.[17]

The Criminal Law (Jurisdiction) Act 1976 allowed trial in the Republic for crimes committed in Northern Ireland, and vice versa.[18] This arrangement circumvented political and legal difficulties blocking the extradition of suspects in crimes related to The Troubles.[1] The Supreme Court ruled that this Act was constitutional.[16] In 1998–99, in the Northern Ireland peace process, Article 3 of the constitution was rewritten pursuant to the British–Irish Agreement.[19] A new section was added to Article 28, stating "The State may exercise extra-territorial jurisdiction in accordance with the generally recognised principles of international law."[20]

In 2015, a High Court judge disallowed the extradition to the United States a man accused of terrorist offences, for grounds including the failure of the Director of Public Prosecutions to explain why the man had not been charged in an Irish court.[21] On 4 December 2019, Irish citizen Lisa Smith was charged in Dublin with being a member of Islamic State of Iraq and the Levant (ISIL) between 2015 and 2019 while resident in the Middle East; an offence under sections 6 and 7 of the Criminal Justice (Terrorist Offences) Act 2005.[22]

References

Sources
  • Mohr, Thomas (2005). "The foundations of Irish extra-territorial legislation". Irish Jurist. 40: 86–110. hdl:10197/5351.

Citations
  1. O'Mahony, Paul (2002). "The Legal Framework of the Criminal Law". Criminal Justice in Ireland. Institute of Public Administration. pp. 39–40. ISBN 9781902448718. Retrieved 30 November 2012.
  2. 10 Geo IV, c.34 §10
  3. S.I. No. 356/1973 — Offences Against The Person Act, 1861 (Section 9) Adaptation Order, 1973. Irish Statute Book
  4. Extradition (European Convention on the Suppression of Terrorism) Act, 1987: sec.5: Jurisdiction in respect of certain offences committed outside the State. Irish Statute Book
  5. International Criminal Court Act 2006 sec.12 Irish Statute Book
  6. Seanad debates 14 July 2009 Vol. 196 No. 15 p.6 c.1207
  7. Criminal Justice (Amendment) Act 2009, Part 3 Irish Statute Book
  8. Criminal Justice (Theft and Fraud Offences) Act, 2001 sec.38 Irish Statute Book
  9. Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 Irish Statute Book
  10. Prevention of Corruption (Amendment) Act, 2001, sec.7 and Prevention of Corruption (Amendment) Act 2010, sec.3, Irish Statute Book
  11. Sexual Offences (Jurisdiction) Act, 1996, sec.2(1) Irish Statute Book
  12. Criminal Justice (Female Genital Mutilation) Act 2012, sec.4 Irish Statute Book
  13. Dáil debates 19 October 1922 Vol.1 No.24 p.4 cc.1742–48
  14. Mohr 2005
  15. Mohr, Thomas (2011). "British Imperial Statutes and Irish Sovereignty: Statutes Passed After the Creation of the Irish Free State" (PDF). Journal of Legal History. 32 (1): 61–85: 30–31. doi:10.1080/01440365.2011.559120. ISSN 0144-0365.
  16. In the Matter of Article 26 of the Constitution and in the Matter of The Criminal Law (Jurisdiction) Bill, 1975 Supreme Court of Ireland, 6 May 1976
  17. Treason Act 1939, Sec.1(2) Irish Statute Book
  18. Criminal Law (Jurisdiction) Act, 1976 Irish Statute Book
  19. Morgan, Austen (2000). "What is the Belfast Agreement?". The Belfast Agreement a practical legal analysis. London: The Belfast Press. ISBN 0-9539287-0-5.
  20. Nineteenth Amendment of the Constitution Act, 1998 and S.I. No. 377/1999 — British-Irish Agreement Act, 1999 (Commencement) Order, 1999 (Irish Statute Book); Dáil debates 2 December 1999 Vol.512 No.2 p.3 Oireachtas
  21. O’Riordan, Alison (22 May 2015). "Man's US extradition over terror refused". Irish Examiner. Retrieved 22 May 2015.
  22. Reynolds, Paul (4 December 2019). "Lisa Smith charged with committing terrorist offence". RTÉ. Retrieved 4 December 2019.; Duffy, Rónán (4 December 2019). "Lisa Smith refused bail after being charged with an offence under terror legislation". TheJournal.ie. Retrieved 4 December 2019.; Phelan, Andrew (4 December 2019). "Former Defence Forces member Lisa Smith charged with membership of Islamic State". Independent.ie. Retrieved 4 December 2019.; "Criminal Justice (Terrorist Offences) Act 2005". Revised Acts. Dublin: Law Reform Commission. 7 November 2019. Retrieved 4 December 2019.; "Written answers; Department of Justice and Equality; No.213: Paramilitary Groups". KildareStreet.com. 2 April 2019. Retrieved 4 December 2019.
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