Brendan Howlin (Wexford, Labour) | Oireachtas source

I am pleased both to have the opportunity to speak to this legislation and to have it finally before the House. There is a great deal of legislation coming from the Department of Justice, much of it stuff that has been on a shelf for a very long time. It is unacceptable in the context of us constantly lauding our membership of the EU that we are so tardy in transposing EU decisions and directives. It is my understanding that we are the last EU member state to transpose this directive, almost a decade after the deadline for the directive that was supposed to be transposed in 2011.

The essence of what we are talking about here is a framework decision within the Union on the application of mutual recognition of judgments in criminal matters imposing custodial sentences so that prisoners within the Union can be repatriated.

If the country that is directly involved, that is, the country where the crime was committed and the sentence was imposed, and Ireland are agreeable and the sentenced person is agreeable, they can serve a sentence or part thereof in Ireland. There are good reasons for that. Obviously, there are additional hardships in terms of language, culture and distance from family in serving a sentence abroad beyond what we understand to be deprivation of liberty, which is what a custodial sentence in prison is about. There is that additional layer if a person is in a country where they do not speak the language, do not understand the culture and where they are such a long distance from family that it makes it impossible to have visits. The new framework broadens the scope of such transfers where it would improve the person's social rehabilitation, and that is the objective laid out in the framework.

I want to raise a couple of issues by way of a general point. I made the point about tardiness in the transposition of the directive but also, obviously, we currently operate under the Council of Europe convention. That convention will continue to apply, according to the Minister of State, in the case of the United Kingdom because it is not part of the European Union. That is worrying from a number of perspectives. First, by far the greatest number of Irish convictions of prisoners abroad are in the United Kingdom and by far the greatest number of Irish citizens serving sentences abroad are in the United Kingdom. It seems to me that since the United Kingdom was fully part of the framework directive decision in 2008 and 2009, it surely is possible for us, as part of the general framework agreement with the United Kingdom post-Brexit, to have an option, even if it is only on a bilateral basis, of a framework decision such as this that should apply across both such close and intimately related states. We are still going to apply the Council of Europe conventions to non-EU countries, including those countries that are outside the scope even of the Council of Europe, but are part of the Council of Europe conventions. The Minister of State has instanced the United States and Australia as being parties to the Council of Europe convention, so the convention applies to that. I would be interested to hear in regard to countries that are not party to the Council of Europe convention what legal framework applies in those instances.

Fundamental to society's attitude to incarceration is punishment for wrongdoing but also fundamental is the hope and expectation of rehabilitation. If our prison system simply ingrains wrongdoing, we are simply releasing people to do further harm to society, so rehabilitation is at the core of what we want. That hope must be real, with specific and concrete measures, including education, skills transfers and social rehabilitation. That should be and is, I believe, intrinsically involved in our legal systems. This Bill, as we have heard from the Minister, seeks in accordance with the framework decision to streamline the process of transfers. However, there is a reason in many instances that we have no great urgency about transposing this directive. If we asked the number of Irish citizen prisoners abroad who were actually transferred into this jurisdiction to serve their sentences in the past five years, we would not be knocked over by the number because it is zero. My understanding is that no prisoners in the past five years have been transferred to serve their sentences here, although the Minister may correct me. The laudable aspirations in talking about the cultural differences and the additional burdens of serving a custodial sentence in a foreign country do not seem to be met with the urgency of making those transfers for Irish citizens to actually serve their sentences here. We not only need to have the legal framework right; we need to have the willingness to act upon it and to make sure it actually comes to happen.

The Bill mainly deals with process and, as the Minister of State said, it is quite technical. It sets out the procedural basis for such transfers, time limits, authorisations and so on. Up to now, for a transfer to happen, agreement is required by both states involved, as well as the agreement of the sentenced person himself or herself, or that is my understanding. Under these new agreements, for transfers within the European Union, as agreed in these two framework decisions, the agreement of the receiving state - I will use those words instead of “executing” and all the rest - may in certain circumstances not be required, for example, where a citizen or resident is returned on foot of a removal order. I would welcome from the Minister of State in his response on Second Stage greater clarity on this net point. It is understandable for a country to accept its own citizens back, for the reasons we have already articulated. However, where a convicted person happens to reside, say, in Ireland before committing an offence abroad, what are the mechanisms of consultation and what ultimate rights does Ireland, as the receiving State, have under these new arrangements? Is it possible that if we had some particularly nefarious person who was not even an Irish citizen but happened to be resident in Ireland before he or she committed those very serious, heinous offences abroad, we would be obliged to take him or her back? What exactly is the right of the receiving state under the new framework decision that will be enshrined in law in this legislation?

This question becomes all the more relevant, although I am going to instance a specific case which does not involve an EU country and, therefore, the decisions involved would concern the Council of Europe convention rather than the EU framework decision. Yesterday, a dual Irish-US citizen was sentenced in the United States, after being extradited from Ireland in the first instance, to 27 years in jail for what most of us would agree are horrific child abuse imagery charges. That person, Eric Eoin Marques, has indicated through his lawyers that he intends to return to Ireland as soon as he is released. In that specific case, a number of questions arise that might arise in other cases. If this person wishes to serve part of his sentence here and the US authorities agree, I take it that under the convention we would have to agree that would be acceptable. The Minister of State might give us clarity about how such a request would be normally handled. Who would be contacted and who would be the decision maker in the Irish justice system?

Another significant question concerns convicted criminals who have served out a full sentence in another jurisdiction. What level of warning, notification or contact, if any, is given to the Irish authorities in regard to the release of such a person and, in many instances, the return of such a person to this jurisdiction? It is not central to the Bill we are discussing in that they are not currently serving a sentence but once the sentence is completed abroad, is there any formal legal mechanism to ensure our authorities are, in an automatic, standard and consistent way, advised a particular individual is being released, has concluded his or her sentence and may well be returning to this jurisdiction? I am thinking of serious criminals, not minor criminals. An example is the Marques case, where the Irish authorities have already indicated that should he return, he would be subject to registration on the sex offenders register and serious monitoring.

Is it possible for a set of circumstances to arise where somebody convicted in a different jurisdiction might not be known to the Irish authorities and could arrive back here after the serving of the sentence unknown to us? Maybe that it is not possible and there are robust systems in place to ensure that every country notifies us. I would be surprised if that was the case but maybe it is. The Minister of State might give us his best knowledge of that set of circumstances.

There are, of course, wider issues regarding the incarceration of Irish citizens abroad. Clearly, there is an expectation, indeed, a requirement, for all Irish citizens to obey the laws of countries that they visit. That advice is given to everybody. If they visit a country that might be outside the normal beaten track, they are told to be careful and make sure that they obey the laws of that country but we have seen cases of clear injustice where Irish citizens are detained abroad without just cause. I instance one particular egregious case, in my judgment and in the judgment of many in this House, and that is the case of Mr. Richard O'Halloran, who is in China. It is an important case to focus upon. For more than two years, Mr. O'Halloran and his family have sought his return to Ireland. He has been prevented from leaving China because of a legal dispute involving the Chinese owner of a Dublin-based aircraft leasing company for which he works. No charges have been levelled against Mr. O'Halloran. There is no suggestion that he has committed a crime but in many ways he is being held hostage. The family have received considerable support from the Department of Foreign Affairs. Many of us who have been in the contact with the Department have been told not to make too loud a noise about it in order that the Department can do its business below the waterline. It has been more than two years and Mr. O'Halloran's release has not come about yet. This is an issue which should concern us all. That is why I wanted, in the context of our discussion, to underscore it again, hopefully, not only with the Department of Foreign Affairs but also with the Department of Justice, which is concerned with issues of the application of justice to Irish citizens wherever they live and wherever they travel. The latter Department might also interest itself in this case.

The broader issue of Irish prisoners overseas is not often debated in this House. I am aware of, and the Minister in his opening comments referenced, the excellent work being done by ICPO. They do remarkable work and they provide a range of services to prisoners overseas and to their families. I also commend their great work. When we have before us such a Bill stating there are Irish people abroad who could usefully - maybe to improve their rehabilitation prospects - serve their sentences here, we should in this House or through the Joint Committee on Justice place a little more focus on that. ICPO, which has extraordinary knowledge of the particular challenges that face Irish people abroad, might give us some advices on things we could do better in ensuring that where people fall foul of the law abroad and find themselves incarcerated, they are not cut off from Ireland and that not only excellent charitable organisations but the State itself has some mechanisms to reach out to such individuals. I encourage everybody to be aware of the legal structures in every jurisdiction that they visit I am aware of the consular work done by the Department of Foreign Affairs but it is not an issue that we highlight too often in this House.

I am supportive of this legislation. The objective of ensuring that Irish citizens incarcerated abroad have the prospect, if the circumstances are right, and in the context of the framework agreement it would improve the person's "social rehabilitation", implies that we should be proactive in ensuring that such persons can be brought home. However, there is no point in having such a framework in place if it is not utilised. The European convention, is in place. That does not seem to be well used if nobody has been repatriated to serve a sentence in Ireland in the past five years. If that is the case, it is not an area that is utilised. Since it has taken 11 or 12 years to transpose a directive from 2009, there is clearly no sense of urgency about this. Since it is clearly a fact that we are the last EU member state to transpose it, we are the most tardy in terms of facing up to this as a social need. I hope that the enactment of this legislation might be the catalyst for a change in attitude, that we might have a clear presentation of the usage of both the European convention, which will still continue to apply to non-EU countries and this legislation enacting the two framework directives once they are enacted, and that we could have a regular reporting to the Houses on the number of prisoners under each of those measures who are formally repatriated to this county and how they get on.

I would welcome an answer to the other questions I have asked in terms of the level of knowledge of the State of people who have served their sentences before they come back. If the Minister of State does not have that information to hand, I ask him to present it to us on another occasion.

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