James Browne (Wexford, Fianna Fail) | Oireachtas source

I move: "That the Bill be now read a Second Time."

I am pleased to introduce the Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021. The purpose of this Bill is to implement EU framework decision 2008/909/JHA on the mutual recognition of judgments in criminal matters imposing custodial sentences and other measures involving deprivation of liberty. The implementation of this framework decision will facilitate the transfer of prisoners between EU member states where that transfer would enhance the person’s social rehabilitation. Prisoner transfers are, at present, operated under the Transfer of Sentenced Persons Act 1995, which implements the 1983 Council of Europe convention. The framework decision supersedes the convention in respect of transfers within the EU and makes several important changes to how transfers operate. As a consequence of Brexit, the framework decision does not apply to transfers to and from the United Kingdom, which will continue to be governed by the convention and the 1995 Act. However, as Deputies will be aware, transfers under the 1995 Act have been subject to legal challenge in recent years. Differences in sentencing structures between states have proved difficult and often impossible to reconcile. This has precluded the completion of many transfers, particularly between Ireland and the UK. While the issues that have arisen are addressed for the new regime in the Bill before the House, the 1995 Act will also require amendment. It is my intention to introduce the necessary amendments to that legislation by way of Committee Stage amendments to this Bill.

Judicial relations between EU member states are underpinned by mutual confidence in each other's legal systems. This is based on the principle of mutual recognition. Member states accept the outcomes of each other’s judicial processes and facilitate their execution across the Union, notwithstanding that those processes may differ between states. The most familiar and commonly used mutual recognition instrument is the European arrest warrant but the principle also applies in other areas, such as freezing and confiscation orders, probation, fines and pre-trial supervision, and in the case of this framework decision, judgments imposing custodial sentences.

It is a natural consequence of freedom of movement within the Union that an increasing proportion of EU citizens live outside their home member state. This is reflected in prison populations. In Ireland, approximately one in ten prisoners is a citizen of another member state. Prisoners serving sentences outside their home state face significant humanitarian difficulties, well beyond those normally arising from the deprivation of liberty. These difficulties can undermine the goals of rehabilitation and social reintegration. They can arise from language barriers and cultural differences, but most significantly, they arise from a lack of contact with one's family and friends. In this respect, I commend the work of the Irish Council for Prisoners Overseas, ICPO, which provides support for prisoners abroad and their families, and which has engaged very constructively on the development of this legislation. The 1983 convention was a major step in facilitating the transfer of such persons to their home states. It established a relatively simple mechanism that was based on the consent of all three parties, namely, the person themselves, the state imposing the sentence, and the state being asked to take over its enforcement.

While the legislation implementing the convention was introduced in 1995 in the context of the peace process, it makes no distinction based on categories of prisoner and applies equally to all of the states that are party to the convention, many of which are not members of the Council of Europe and include countries such as the USA and Australia. The framework decision updates this regime for transfers between member states. The most significant change is that transfers may, under limited circumstances, take place without the consent of either the sentenced person or of the executing state, that is, the state where the person is being transferred to. The transfer remains a discretion of the issuing state, i.e., the state imposing the sentence. Notably, a transfer may not require the consent of the person where the person is a national of the executing state and lived there prior to the imposition of the sentence, or where a person will be sent to the executing state as a consequence of a judgment after the completion of their sentence, for example, on foot of a removal order.

It is important to emphasise that under the framework decision it is an essential precondition that a transfer facilitates the social rehabilitation and successful reintegration of a person into society. This applies regardless of whether the consent of the person is required. The framework decision also sets down important procedural safeguards to ensure the person may participate in any consideration of a transfer. An opportunity to give his or her opinion on a transfer must be provided to the sentenced person, as long as they are in the issuing state. This opinion must be provided to the executing state. If the executing state believes that the transfer would not facilitate the social rehabilitation, it may provide a reasoned opinion to that effect. In the context of transfers out of Ireland, the Minister must be satisfied that the transfer would facilitate rehabilitation to proceed with the transfer.

I will highlight the general features of the new system. A decision to seek a transfer is always a discretion of the issuing state and there is no obligation to transfer a person out. There may be, however, as noted above, an obligation on the State to transfer a person in, where that person is an Irish citizen and lives here, or where the person would be removed to Ireland after completion of his or her sentence.

The regime also applies where a person has fled to a member state. The judgment may be sent to that state for execution there. A similar regime exists for convention states under the Transfer of Execution of Sentences Act 2005.

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