Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

Fianna Fáil supports this legislation. It is important and it will considerably ease the difficult circumstances in which Irish people can find themselves abroad, and that European Union citizens can find themselves in if convicted of an offence in Ireland. As the Minister of State indicates, the purpose of the legislation is to ensure that if a person from another European Union member state receives a probation order or community service order in Ireland, that citizen will be able to spend that time in the other member state under the operation of its probation service or community order sanctions. Similarly, an Irish citizen convicted in a European country and given a probation order or community service order could have that dealt with in Ireland as opposed to abroad. It makes sense.

When I first read about the legislation we are discussing, I wanted to consider the similar legislation dealing with individuals convicted of offences and serving terms of imprisonment. As I am sure the Minister of State knows, on the same day this decision was signed, 27 November 2008, another Council framework decision was also signed, namely Council Framework Decision 2008/909/JHA. Unfortunately, Ireland has not implemented that decision, which relates to the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union. A statement was made by the European Commissioner for Justice and Consumers, Ms Jourová, on 4 January in response to a question submitted in respect of whether Ireland had implemented this decision. She stated that following the end of the transitional period on 30 November 2014, member states were requested to notify formally their transposition measures before 15 May 2015 but Ireland did not comply with this obligation within the required time. She indicated that based on the information provided subsequently by Ireland, the Commission is currently analysing the matter with a view to an infringement procedure against Ireland pursuant to Article 258 of the Treaty on the Functioning of the European Union.

It is clearly a matter of deep concern that we have been so delayed in implementing the legislation before the House. It is a matter of even greater concern that there is another Council decision out there concerning people who are imprisoned in member states of the European Union that has not been implemented in Irish law. The Minister and the Government must explain the reason for this delay and steps must be taken to ensure the Council decision can be implemented into Irish law as soon as possible.

Having said that, it is important to implement the decision we are discussing on the mutual recognition of judgments on probation decisions with a view to the supervision of probation measures and alternative sanctions. The Minister might agree that anybody involved with the criminal justice area will recognise that we should be very slow to put persons into prison. Prisons should be places for persons who are a physical threat and danger to members of society, people convicted of offences or those who have applied for bail and been previously convicted of offences.

They are the individuals who should be occupying places in prison to ensure society is protected from violent individuals. Aside from that, we should try to ensure that persons who are not a physical or sexual threat to others are not in prison. This is why it is so important for courts to recognise that when it comes to sentencing, so many more opportunities are available to them than merely incarcerating a person convicted of an offence. It is important to note that in respect of a probation order, if a judge in the District Court has found that the facts of the case against the offender have been proved but does not proceed to a guilty finding, he or she can make a probation order. This puts an offender under the supervision of a probation officer for a period of up to three years and is not a recorded conviction.

Probation should be used as much as possible if it is appropriate in the District Court. We have a very effective Probation Service. The purpose of a probation order made in the District Court is to try to ensure that a person who comes before a court, probably for the first time, does not continue on a path of criminality. The benefit of a probation order is that a person is given a chance and told that he or she will be put on probation and that it will have the effect that he or she will not have a conviction. Obviously, a probation order in a higher court, be it the Circuit Court or High Court where it can sometimes apply, is recorded as a conviction. Let there be no doubt about the benefit of a probation order in the District Court. Its objective and benefit involve trying to divert someone, generally a young person, from a path of crime. We saw recently how important it is to have a juvenile diversion scheme in place. Unfortunately, it does not seem to have been operating to its 100% potential, as we saw from the statements made last week, but it is very important that the State tries to divert young people from a path of crime. This is why a probation order is so important.

We are also aware that there are community service orders that can apply. They are provided for under the Criminal Justice (Community Service) Act 1983 and indeed under the Children Act. It can order an offender to do between 40 and 240 hours of unpaid work in the community if the person is over 16 and has been convicted of an offence that otherwise would have involved a jail sentence. As the Minister of State indicated, sometimes an individual can be given a partially or fully suspended sentence with a condition of Probation Service supervision. That will sometimes apply in respect of individuals who have been convicted of a serious offence but where the court suspends part or all of the sentence. It depends on the convicted person availing of and subjecting himself or herself to the Probation Service. There are similar supervision orders under the Misuse of Drugs Act and temporary release provisions.

The benefit of all of these measures is that if a person from an EU member state is convicted in Ireland or is in receipt of a probation or community order, it makes sense for him or her to be able to go back to the country from where he or she came to serve his or her probation or community order there. I do not know if it applies to the UK. I think the UK might not have implemented this decision under its discretion regarding justice decisions. It is a very difficult situation if an Irish person gets caught up in the criminal justice system of another country. Not everyone who comes before the courts on a criminal charge is a lifelong villain. Many people find themselves before the criminal courts in this country or other countries through misfortune, consuming too much alcohol, taking drugs or making stupid decisions. If that happens to an Irish citizen in another EU member state, it makes sense for us to try to get him or her back to this country so he or she can serve his or her probation or community service order here. I know Deputy Butler will talk about the impact this can have on families. It can have a very serious impact on them.

I welcome the fact that this legislation has been introduced belatedly by the Government. I urge the Minister of State and the Government to ensure that the other Council decision made on the same day, Council Framework Decision 2008/909/JHA, is transposed into Irish law as soon as possible. We will support the Bill. I suspect part of the reason this legislation is being given priority over the other Council decision of the same date is because of statements made by Mr. Justice Hunt in the Teelin case against the Minister for Justice and Equality where the judge stated that the State had failed to implement the framework decision by the time specified in that respect, and the United Kingdom had apparently exercised a right to opt out of its implementation. In addition, the State had declined to make resources available to receive the respondent for probation supervision on a voluntary basis.

It is important that the Government responds to important statements from experienced judges such as Mr. Justice Hunt but it is also important that we do not just react to the Judiciary. This is a decision of the Council that was signed in 2008. There was time for it to be transposed into domestic law. I understand that it was to be done by 5 December 2011. It is now more than 11 years after the signing of this decision and the other decision in respect of custodial sentences and they still have not been transposed into Irish law. I think the Minister of State will have to answer that but we will support this legislation.

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