James Browne (Wexford, Fianna Fail) | Oireachtas source

It is the official language. There will be no executions.

Transfers may also be conducted in respect of persons committed to the Central Mental Hospital under the Criminal Law (Insanity) Act 2006, and under 18-year-olds detained under the Children Act. Provision is made for consent to be given by an appropriate proxy where the person is unable to do so themselves. Once a person is transferred, the law of the executing state applies to the administration of the sentence. This means, for example, in an incoming transfer, a person will get credit for remission earned in the issuing state based on the law there and be eligible for Irish remission on the portion of the sentence after transfer.

As I mentioned earlier, significant issues have arisen following Supreme Court decisions in respect of inward transfers under the 1995 Act. The effect of the decisions in these cases is that inward transfers cannot be reliably conducted where certain incompatibilities exist between the sentence imposed in the issuing state and how that sentence would be enforced under Irish law. This is a particular issue with the United Kingdom due to the operation of automatic release on licence under UK law in certain circumstances, but similar issues may arise in any transfer where different sentencing structures apply. The Bill includes several provisions to address these issues. It makes clear that conditional release measures are considered part of the administration and enforcement of the sentence, rather than going to the legal nature of the sentence, even where those conditional release measures arise by operation of law. It also provides that a person has an opportunity to be heard at an inter parteshearing prior to a final determination of the remaining period to be served, and will provide the court with the necessary powers to adapt the sentence post transfer should that be necessary. I am giving further consideration to introducing a Committee Stage amendment that would require applicable early-release measures under the law of the issuing state, including judicial recommendations, which do not form part of the legal nature of the sentence, to be given consideration in making parole or other sentence administration decisions. I expect to also introduce further technical amendments.

The framework decision was due to be implemented by 2011. However, Ireland continued to operate the convention regime with other member states in the interim, and the cases I mentioned have required careful attention. However, formal infringement proceedings against Ireland were brought by the Commission in the Court of Justice on 3 March this year and are ongoing. We do not expect that a financial penalty will arise at this stage of the proceedings but there is clearly a particular need to address this transposition as quickly as possible.

While it is impossible to provide a definitive estimate on the number of applications that may be made, we would not expect the costs arising from transfers to be significant, or for the transfers to have a notable effect on prison populations, especially given that both inward and outward transfers will take place. Since the Transfer of Sentenced Persons Act was introduced in 1995, 154 persons have transferred, which is an average of around six per year. The vast majority of these have come from the UK. By comparison, Germany had an annual average of about 130 inward applications under the framework decision. Adjusting for population, this would suggest that between the new and existing regime we would be dealing with fewer than ten applications per year.

I will now turn to the content of the Bill. Part 1 deals with general matters and notably sets out the respective roles of the Minister and the courts.

Part 2 applies where Ireland is the issuing state. Under the convention regime, decisions in respect of transfers are primarily administrative matters for which the Minister is responsible. An application for transfer will typically be made by the sentenced person. Provision is also made in section 10 for such applications to be made by the Irish Prison Service or other relevant body, and a transfer may be considered by the Minister on his or her own initiative. Sections 12 and 13 deal with the consent of and seeking the views of the sentenced person. On receipt of an application, the Minister must provide the person with an opportunity to provide his or her opinion on the application. Where the consent of the person is required, the application cannot proceed without it. Consultation with the executing state is obligatory where the consent of the executing state is required, and should take place as far as is reasonable and practicable in any event. The decision of the Minister whether to forward the judgment is then made under section 16. Where a decision to proceed with a transfer is made, the Minister sends, or in the language of the framework decision, "forwards" the judgment to the executing state. This forwarding initiates a formal process where time limits apply and where recognition must be given unless specified grounds apply. Where the person is already in the executing state, the Minister may request the provisional arrest of the person under section 18, pending consideration of recognition. The person may withdraw their consent to the transfer at any point before the judgment is recognised by the executing state. The Minister has a general discretion to withdraw the forwarding of the judgment at any point up to the actual transfer of the person. If the executing state agrees to recognise the judgment, the Minister issues a warrant for the transfer under section 22, and the transfer itself is conducted under section 23. Amnesty or pardon may be granted by either state, but a review of the sentence remains the responsibility of the issuing state.

Part 3 of the Bill applies where Ireland is the executing state. Responsibilities are split between the Minister for Justice and the High Court in respect of incoming transfers. Where the consent of the State is required, the issuing state must obtain this from the Minister prior to forwarding the judgment. This consent is discretionary, but at a minimum the Minister must be satisfied that the transfer would facilitate social rehabilitation and reintegration. Section 33 provides for the possible issue of a reasoned opinion by the Minister, and requires the Minister to consider the opinion of the sentenced person. Section 34 sets out the procedure where a judgment is forwarded by an issuing state to the Minister. The Minister, when satisfied that the forwarding is in order, must make an application to the court to seek recognition and enforcement orders. The issuing state may request provisional arrest under section 35 if the person is already in the State and, if the Minister agrees, a warrant is then sought from the court. Sections 37 and 38 govern the application for recognition and enforcement. The court may refuse recognition where the provisions of section 38 apply. This includes, for example, where required consents have not been obtained or where the offence does not correspond to an offence in the State.

One of the difficulties arising in the decisions referred to earlier has been that court proceedings for transfer have taken place ex parte, with the consequence that important issues were not subject to a final judicial determination at the time of transfer. To address this issue, additional safeguards have been added. The application for recognition may be made ex parte, but the court may require the person to be placed on notice if necessary in the interests of justice. This might arise where the transfer was opposed by the person. An application for adaptation may be made similarly. When the court grants an application for recognition, it issues a warrant authorising the transfer and detention of the person. The person is then brought into the State and an inter parteshearing is held in all cases for a committal order to be issued. This ensures the person has an opportunity to be heard and allows for any issues to be resolved.

More generally, where recognition is granted, the court is required to take all such measures as are necessary to enforce the sentence. In particular, in cases where the sentence is incompatible with the law of the State, it may be adapted by the court to that of a sentence prescribed here for a similar offence. Where the sentence is greater than the maximum provided for in Irish law for the offence, it is adapted to the maximum. This adaptation may be made at the time of the recognition, but it may also be made or varied at any other time.

Part 4 of the Bill addresses miscellaneous and incidental matters.

The Bill is certainly complex, but it is a careful transposition of the framework decision into Irish law, and reflects the judicial developments which have taken place since the introduction of the 1995 Act. While it applies to a relatively small proportion of those detained, for that group it will be of very significant importance. I commend it to the House and look forward to working with the Deputies as it progresses.

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