James Browne (Wexford, Fianna Fail) | Oireachtas source

I move amendment No. 8:

In page 8, line 6, to delete “criminal proceedings;” and substitute the following: “criminal proceedings and includes a punishment or measure that includes a limited or unlimited period of time that is served otherwise than in custody but does not include a part of a sentence the execution of which has been conditionally suspended upon its imposition—

(a) where Part 2applies, by a court in the State, and

(b) where Part 3applies, by a court in an issuing state;”.

Amendments in respect of early and conditional release were noted on Second and Committee Stages and the heads of these amendments were published at the beginning of last year. The transfer of persons serving custodial sentences presents inevitable challenges. States use increasingly complex sentencing structures and, in almost all cases, a sentence is no longer simply a term of years to be served in prison. Instead, sentences incorporate the possibility of accelerated release based on a range of factors. Conversely, they may provide for periods after the ordinary completion of the custodial part of the sentence where a person may be returned to prison if he or she does not abide by post-release conditions and sentences may, by design, incorporate a part served in the community.

The features applicable to a sentence may be determined generally by a state's legal system or be subject to case-by-case determination by a court. The knowledge of how a sentence will be served in a particular state informs a court's decision on what is just to impose. The general approach taken in international prison transfer agreements is that the sentencing state determines the legal nature and duration of the sentence and this is binding on the administering state. The administering state may adapt the legal nature but this may not aggravate the sentence. Thereafter, the administrating state applies its own rules in how the sentence is enforced, covering remission, for example.

The complexities arising are illustrated by the decision of the Supreme Court in Sweeney v. Governor of Loughan House in 2014. The court found that certain foreign provisions on conditional release, including those applying by default in the UK, should be treated as part of the legal nature of the sentence. The effect of the judgment was that typical UK sentences, which contain an automatic conditional release at the halfway point, were treated as if containing two separate elements, namely, a custodial element and a supervised release element, only the custodial element could be transferred and the person would be entitled to a unconditional release thereafter.

Similar legal issues arise under the framework decision. Differences arise even with relatively simple structures. Depending on the law of the other state, a reduction for remission may be indicated and applied at the time of transfer. In other cases, the law of the other state may provide for release upon a portion of the sentence having been served but there is accrual of remission and no reduction applied on transfer. The conditional release may be presumptive rather than automatic. Given that EU case law suggests Irish remission cannot be applied to the part of a sentence served in the other state pre-transfer, Irish remission only applies to the balance of the sentence remaining to be served. If no account is taken of the other state's conditional release mechanism, a sentenced person may face a significantly increased de factotime in custody arising from the loss of benefit from conditional release on the part served pre-transfer.

There are no straightforward solutions to these difficulties. Legislation cannot account for every possible sentence structure that might arise in another state now and in the future. What is necessary is a flexible mechanism that ensures that both the courts and the Minister have appropriate powers to deal with a range of sentence types. This is what is being introduced. The starting point is amendment No. 8, which amends the definition of "sentence" to expressly include parts of the sentence which may have been served otherwise than in custody. Therefore, a new power to grant conditional release is provided for under amendment No. 58. This power allows the Minister to take into account the conditional release provisions applying to the sentence before transfer to avoid a loss of benefit arising. The period of conditional release will usually be calculated on a pro rata basis. A benefit from the other state's system would be given on the part of the sentence served in that state, with Irish remission applying to the parts served in Ireland. If a remission-based system applies in the other state and a deduction has already been made on transfer, further conditional release will not be granted.

With these measures in place, the question becomes which parts of the sentence form the legal nature and duration and which parts form the administration of the sentence. In general, measures in respect of early and conditional release will form part of the administration of the sentence and will not be binding. This reflects well-established international practice and is made clear in Article 17 of the framework decision. Section 43(7) as amended makes clear that the 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 are automatic and arise by operation of law.

Section 42(8) makes a similar provision in respect of measures determining parole eligibility for life sentences. A minimum custodial period, be it a general provision in respect of all life sentences or a tariff imposed in specific cases, will not be part of the legal nature of the sentence. A life sentence is simply a life sentence, and subject to Irish parole rules. However, amendment No. 68 to the Parole Act 2019 ensures that any such minimum periods are taken into account by the parole board. These amendments do not seek to exhaustively determine what will or will not be considered part of the legal nature of a sentence. The exact determination of what constitutes the legal nature of the sentence in any given case remains with the court.The power to adopt the legal nature of a sentence also remains with the courts and its scope is clarified by amendment No. 30. However, the effect of the other amendments is likely to be that the adaption will not typically be required solely to address or bring early and conditional release measures. Taken together, and for the majority of sentences typically encountered, the effect of the amendments will be that sentences will transfer to the State for the full period of possibility custody. Irish remission will apply to the part of the sentence served after transfer and the Minister will have the power to grant conditional release where appropriate in respect of the parts served before the transfer.

Deputies will note in the definition of "sentence" in amendment No. 8 that for a part-suspended sentence, the suspended element of the sentence is excluded. This is specifically to allow the handling of such sentences using a combination of this framework decision and framework decision 2008/947, which provides for supervision and enforcement of alternative measures.

Finally, I note that certain changes have been introduced in respect of the corresponding offences. These clarify the requirements and, in particular, address situations involving multiple offences.

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