Michael McDowell (Dublin South East, Progressive Democrats)

These amendments relate to the powers of the High Court to ensure that any aspect of a sentence other than its duration that is less favourable than the equivalent Irish sentence shall not be imposed. Clear examples might be penal servitude or hard labour, as Deputy Costello mentioned. In practice, we may find that some other conditions are also incompatible with Irish sentencing provisions. Without surveying sentencing law throughout the world it would be difficult to be absolutely sure. Currently, the Bill states that those less favourable aspects shall not apply if the High Court so directs. If the High Court hears of less favourable conditions, it is empowered to direct that they shall not apply.

Amendment No. 25 proposes that the onus should be shifted the other way and less favourable aspects shall not apply subject to any directions that the High Court may give. This places the High Court in the position of giving directions about whether regimes in foreign states should apply. The difference between the two is negligible but it concerns me that the directions given by the High Court as to the non-application of less favourable aspects could involve the High Court making quite complex decisions. I think it would be better to leave matters as they stand. It is a case of six of one and half a dozen of the other. The amendment could introduce uncertainties and I believe it would hinder rather than help proper application of the provision which is to confer on the High Court a discretion to exempt somebody from less favourable conditions in the requesting country. I therefore do not propose to accept the amendment.

Amendments Nos. 23 and 24 direct the High Court not to apply those less favourable aspects. The matter should be left to the discretion of the High Court, especially since, as I mentioned earlier, cases may arise where it simply will not be clear that the sentence as imposed is incompatible with our sentencing regime. There will be argument about whether the regime is incompatible or what the conditions are in our jail or in other jails, or whether Irish prisoners are required to work, tidy up their cells or do prison tasks of that kind. It is better to leave it and to let the High Court use its discretion and common sense on a case-by-case basis.

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