Dáil debates

Thursday, 16 September 2021

Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021: Second Stage

 

5:40 pm

Photo of James BrowneJames Browne (Wexford, Fianna Fail) | Oireachtas source

I thank Deputies for their contributions to the debate on this important Bill. A number of important issues were raised in respect of the Bill but there has been broad agreement on the importance of it and its need to pass through the Houses of the Oireachtas at a reasonable pace.

I acknowledge the issues raised by Deputy Martin Kenny to the effect that the UK is not contemplated by this Bill as it stands and that this is giving rise issues in respect of prisoner transfers. This is partly because the UK is outside the EU and is not part of the framework.

However, we will bring forward an amendment on Committee Stage to include a provision that will address the situation with the UK. It is a deeply complex situation in terms of dealing with the UK and significant issues have arisen following the Supreme Court decision in respect of inward transfers under the 1995 Act. The effect of that decision is that inward transfers cannot be reliably conducted where certain incompatibilities exist between the sentence imposed in the issuing state and how that sentence should be enforced under Irish law. This is a particular issue with regard to the UK due to the operation of automatic release on licence in the UK in certain circumstances. Under UK law, a person is usually entitled to release on licence after either half or two thirds of the sentence has been served and he or she serves the remainder of the sentence in the community but this is not how Irish sentences operate. In implementing the framework decision, the Bill 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 the 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 courts with the necessary powers to adapt the sentence post-transfer should that be necessary.

In terms of sentencing structures such as those in the UK, there are, broadly speaking, two options. One is to provide for the direct adaptation of a sentence structure, as the UK's sentences currently are, where the sentence may be replaced by a partially suspended sentence - this was the approach envisaged in the general scheme of the Transfer of Sentenced Persons (Amendment) Bill published in 2018 - or providing, as the framework decision does, for the full term of the sentence to be reflected on transfer, subject to Irish remission and potentially to subsequent administrative measures such as temporary release. There is no perfect solution to this. It is deeply complex which is why there has been some delay in addressing it. We are still considering the options in consultation with the Attorney General, but I will be bringing proposals to Government and will seek approval for their inclusion on Committee Stage. While I cannot guarantee that amendments will be included on Committee Stage as this is subject to Government approval, I do envisage Government support for whatever proposals we bring forward.

A number of Deputies raised the issue of the delays with the transposition and asked, in particular, why it took ten years. It is interesting to note that one of the Deputies who raised the issue of delays was in government for five of those years and his party had a Minister of State in the Department of Justice in that period. In that context, I take a somewhat jaundiced view of complaints coming from that part of the House. When I was appointed Minister of State, I undertook to deal with all outstanding transpositions as quickly as possible while allowing the House the opportunity to discuss them, as is only right. Since my appointment, I have taken ownership of addressing overdue transpositions and in the past year my Department has steered four items of legislation through the Houses, namely, the Criminal Justice (Mutual Recognition of Decisions on Supervision Measures) Act 2020, the Criminal Justice (Money Laundering and Terrorist Financing) Act 2021, the Criminal Justice (Theft and Fraud Offences) Act 2021 and the Counterfeiting Act of 2021. Alongside the Bill before the House, I have also introduced the Criminal Justice (Smuggling of Persons) Bill in the Seanad and will be progressing that during this session. I hope and expect, with the support of both Houses, that both of those Bills will be enacted soon. This will mean that six Bills will have been enacted as part of the transposition of directives in the space of approximately 15 months. I cannot answer for the previous decade, but I can stand my own record in terms of ensuring that these directives are transposed into law.

Deputies Martin Kenny and Ó Murchú raised the issue of victims of crime and rightly so. It is open to the Minister, under section 16(4) to consult with anybody on the implementation of any applications for transfers and I would expect that any Minister, where appropriate, would consider consulting victims of crime. Their voices must be heard in all aspects of the processes of justice. Any Minister of Justice would - and should - give an opportunity to victims of crime to have an input into decisions on transfers. The Department has had a very victim-centred approach since I and the Minister for Justice, Deputy McEntee, took office. This is evident from the introduction, for example, of the Harassment, Harmful Communications and Related Offences Bill, with which Deputy Howlin was also heavily involved. We also initiated public consultation on the third national strategy on domestic and gender-based violence and during Covid, we initiated Operation Faoiseamh to help those enduring domestic violence, the incidence of which unfortunately increased during the pandemic. We will be introducing hate crime legislation soon and victims continue to have the rights that were introduced under the Criminal Justice (Victims of Crime) Act 2017 vindicated.

We are also very much focused on restorative justice and ensuring that those who commit crimes face up to their actions. Part of the motivation for that is to help those committing crimes to see the damage their offending does to real people in the hope of motivating them not to re-offend. The aim is to reduce reoffending by showing criminals that their crimes are not victimless but have a very real impact. That is also very much the focus of the youth justice strategy that we launched earlier this year, the aim of which is to target young people and direct them away from criminal behaviour towards more positive behaviour. This involves putting wraparound supports in place to redirect them away from criminal activity.

Deputy Ó Cuív also referred to transposition delays. I am not going to justify the delays that occurred before I took office. I would say, however, in my first term in the Dáil I was very taken by Deputy Ó Cuív's genuine concern for and actions on behalf of Irish prisoners. That certainly stuck with me and is one of the reasons I wanted to see this Bill enacted as soon as possible. The Deputy asked that amendments relating to the UK be introduced on Committee Stage. I will bring such amendments to Government and it will then be a matter for the Government to approve them. I can confirm that Northern Ireland is party to the Convention and does, therefore, come under it.

Deputy Catherine Murphy also referred to delays, a matter which I have already addressed. A number of Deputies also spoke about the importance of rehabilitation. Indeed, rehabilitation is a key criteria in the legislation. Reference was made to Mr. Richard O'Halloran and my sympathies go out to him and his family. I acknowledge the genuine public concern around his case, as mentioned by several Deputies. The Minister for Foreign Affairs, Deputy Coveney, has been working very hard behind the scenes on this matter and has met his Chinese counterpart to discuss it. The situation is very delicate so I will not risk saying anything here that might interfere in any way with what the Minister for Foreign Affairs is doing behind the scenes. However, I can say that the Minister has my full support in his endeavours in respect of that matter.

A number of specific, technical but important points were raised by Deputy Howlin. As I have only 30 seconds remaining, I will not endeavour to answer him now but will respond to the Deputy in writing on the important issues he raised. Obviously, China is not party to the convention. On the framework decision we can refuse where, on reasonable grounds, we believe there have been breaches of human rights. That is contained within the convention itself. There is a provision under the Act for annual reports and statistics and I expect that will be carried out as well. While the vast majority of our citizens abroad are not seeking to return, I will endeavour to get the exact number of applications that have been made over the last number of years.

I thank the Acting Chairman for the opportunity to address some of the issues raised by Deputies in the House. I will endeavour to provide responses to those questions to which I did not have time to respond.

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