Dáil debates

Thursday, 16 September 2021

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


4:20 pm

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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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.

4:30 pm

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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There is a lot of talk of executions. Is it open to interpretation?

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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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.

Photo of Seán Ó FearghaílSeán Ó Fearghaíl (Ceann Comhairle; Kildare South, Ceann Comhairle)
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Deputy Kenny is sharing time with Deputy Ó Murchú.

Photo of Martin KennyMartin Kenny (Sligo-Leitrim, Sinn Fein)
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Sinn Féin will not oppose this legislation. We will support it. It is worthy and has certainly been long delayed. However, it has its flaws and there are difficulties with it. The primary one which all of us are conscious of is the fact that the nearest jurisdiction to us is outside the remit of this legislation because it is now outside the European Union. That will be a difficulty for many people who might find themselves falling under this legislation, either as British citizens living in this State who may end up in prison and want to return to Britain, or as Irish citizens living in Britain who may want to return to Ireland to complete their sentence. Whatever amendments are required, it is unfortunate that they are not already provided for in the Bill and that we will have to come back to them at a later stage. Will the Minister inform us why there has been a delay? What are the technical difficulties with making the Bill all-encompassing, particularly as we recognise the largest cohort of citizens that might fall under this legislation are with our nearest neighbour?

The essence of what the legislation is attempting to do is to ensure that where people are sentenced for whatever reason in whichever country, their families, in general, would not also suffer because of their distance from the location in which the person is sentenced. That is laudable and is something we will support. However, an issue that also must be given due consideration is the position of the victims of crime. We are all conscious, particularly where people are victims of violent, perhaps sexual, crime, that there may be a fear that the person who is convicted might quickly be returned to his or her own country, where there could be a regime that would see him or her released early. The Minister of State referred in his contribution to pardons and so on. That is a very difficult thing for people to face and there needs to be a due recognition in that regard. He indicated that there is provision throughout the legislation for the sentenced person to be consulted, but the victim of a crime should also be consulted. That is something that needs to be at least considered in some way. Too often, even in this jurisdiction, we hear of people who have been the victim of serious crime or serious assault and the perpetrator has been sentenced and sent to prison but is released early and is at large, and the first the victim knows about it is when he or she, or a member of his or her family, meets the perpetrator on the street. Victims are not informed by the State when such circumstances arise. If that were to happen in a situation where these people are going back to anther state, it is a difficulty we need to address. It could be addressed in some way in this legislation and I suggest to the Minister of State that it needs to be done.

In regard to the rehabilitation of prisoners and the regime in place in this State, there certainly have been great efforts and some progress in that respect in recent years. However, we still have a very large problem in respect of reoffending, with between 50% and 60% of prisoners released from Irish prisons going on to offend again. That is quite a high rate by international standards and certainly by European standards. Many EU member states have much lower rates and better systems in place to ensure people do not reoffend. Much of that, as I see it, comes down to the way the prison system is structured and the supports that are put in place for people while they are in prison and when they are released. Usually, people who find themselves involved in criminal activity, particularly those engaged in violent, drug-related activity, live chaotic lives that are outside the norm most of us experience. Returning from prison to that type of chaotic life is really just putting them back to where they began and, eventually, back to prison. That is the difficulty.

In some jurisdictions, the prison experience is different. It is about training prisoners to understand that the type of life they have come from is not the norm and is not healthy, good, reasonable or acceptable. It is about ensuring prison can be a place where they learn to live a different life. That is the model we need to try to put in place. I recognise that efforts have been made to get us there but we need to redouble those efforts and put more resources into achieving change. If we reduce the rate of reoffending, that is targeting the resources exactly where they need to go and it clearly will reduce the volume of crime that is happening. It would be a valid and appropriate way to do that. We often hear people say that we are soft on prisoners and too easy on them. We need to have a mature attitude to dealing with these issues. The attitude of "lock them up and throw away the key" does not work and has not worked in other jurisdictions. I have in mind in particular a country on the other side of the Atlantic, which has the highest number of prisoners per head of population in the world and whose prison population continues to grow. There must be other ways of doing this, which is not to say that we should not have a criminal justice system that is responsive to people's needs and delivers for them.

The other side of this is that we also must ensure we have the relevant levels of resources, not just for our Prison Service and the rehabilitation service that is provided for people coming out of prison but also for our law enforcement services. We need to ensure An Garda Síochána and all the other resources that are there to deal with criminal activity are strong and robust and have international contacts and liaison capability with other police forces in other states. I acknowledge that liaison takes place but it needs to happen in a more co-ordinated fashion. I am aware of cases where An Garda Síochána, with its best efforts, has been unable to get the kind of co-operation it would expect to get from other European states. That is unfortunate and it needs to change. If we are bringing in legislation on mutual recognition of sentences, we also need to have a mutual recognition of law enforcement and greater co-operation between member states in that respect.

Clearly, there is a focus on rehabilitation and making it easier for prisoners to be able to come out to an environment where they are less likely to reoffend and to be closer to their locality and family. We also need to recognise that in many states in Europe, particularly when we look to the farther reaches of eastern Europe, there are regimes that are not as suitable as we would like them to be and which do not even meet the standard we have in this country in respect of dealing with people in an appropriate manner and putting rehabilitative resources around them. We need to approach this with a caution that we are not sending people to places where they have less chance of social rehabilitation and less chance of coming out of prison better than they went into it. There is a sense of needing to be very much guarded around how all of this works.

Of course, we also need to understand that while police forces must co-operate more closely across international boundaries, and judicial process must do the same, the criminal elements are already spread right across all jurisdictions and recognise no boundaries. International communications and the way technology has moved in recent years have made the world a small place, mainly for the good but also for the ill in terms of how criminal networks are now able to operate. Indeed, it seems they have the capability to operate seamlessly around the globe, never mind across Europe. We must have a recognition of that, which this legislation goes some way to doing. It is very focused on what it wants to do and most of its provisions are welcome. However, I would put a particular emphasis on the importance of the victims of crime, their part in all of this and how they can be represented in the legislation. Many victims' experiences have left them with a sense that they have been left out of the process. Even in standard criminal law cases, as it stands today in our system, the victim is treated as no more than an ordinary witness. When we are talking about taking a person who has been sentenced for a serious crime in Ireland and sending him or her somewhere else, we should consult the victim of that crime. Even if the views of victims do not influence the outcome, they would at least feel they had been consulted and that the situation had been explained to them in terms of what was happening and what the merit was in going down that particular route. I recognise that each case will be taken on its individual merits and a Minister will have to weigh up the circumstances and, in some cases, issue a warrant of transfer. The Minister of State mentioned that there may be as few as ten or 12 such cases per annum. It would not be too much to suggest that the victim should also be consulted in such small numbers of cases as may arise.

I assure hin that we will support this legislation. However, I ask that the points I have raised be taken on board.

4:40 pm

Photo of Ruairi Ó MurchúRuairi Ó Murchú (Louth, Sinn Fein)
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I will start where Deputy Kenny left off in referring to a meeting he and I had recently with relatives of a victim of tragic circumstances and a brutal crime. They spoke about what the Deputy referred to, namely, that they felt left out of the entire process. In fact, they feel they were almost victimised again by the criminal process. We do not have proper formal procedures in place regarding interactions and communications with victims and their families. It is vital when we talk about operating a system that involves mutual recognition of sentences and allowing for the transfer of prisoners that we also take into account the victims of crimes. It is an absolutely vital piece of work. The Minister of State indicated that we are talking about a small number of cases, so we should be able to build that into whatever structures we set up and ensure it is adequately resourced.

I welcome what the Minister of State said regarding the fact that there will be discretion on the issuing state to take into account that transfers should only be carried out if they are beneficial from the point of view of rehabilitation. We believe that they should happen if possible, if it avoids collective punishment of a family that is not necessarily responsible for what a member of the family has done. Prisoners are in prison for a wide range of crimes so every case must be dealt with individually.

We must move away from the position we sometimes come across in the media or that some of us intuitively take that we must be hard on crime and on criminals and that prisons should not be easy places. We all have an understanding of what works best at this stage. The best-case scenario is where the loss of freedom is a sufficient penalty and once the system of law enforcement, followed by the court system, can move relatively speedily and that adequate sentencing is provided, combined with rehabilitative resources where necessary. This can be a lot more beneficial from the point of view of avoiding recidivism, which is vital.

We are talking about the transposition of a European decision. We are to some degree behind on the delivery of the measure and we must get it under way. I agree wholeheartedly with some of what has been said regarding a major element lacking due to Brexit, in the sense that we must amend the legislation to deal with prisoners in British prisons or prisoners here who seek to be transferred to prison in Britain and allow for such transfers.

The Minister of State indicates that there are significant technical difficulties with sentencing rules. Like Deputy Martin Kenny, I believe that, if at all possible, we would be provided with a brief and information in that regard. I welcome that the Minister of State has outlined that this should be addressed on Committee Stage, but we must ensure that is done.

We are offering something that may benefit individuals and their families in a small number of cases. It may also be beneficial to society in that sense that it is better for all of us if we can put resources into individuals in prison that result in them not reoffending. It reduces the cost on the criminal justice system of having to take individuals into the prison system again. Given the huge cost attached to having someone in prison it would benefit society as well as the prisoners and their families.

We must look at the matter in the round in dealing with the whole gamut of criminal justice. We are talking about resourcing this particular system if we get the legislation through. I believe it is necessary. The Minister of State has spoken about proposed changes by the Department in areas such as the youth justice system. He is dealing with youth diversion projects at this point, including some in my constituency. This is vital as he will talk to people who are operating at the coalface and seeing what works and what does not work. We all know that there are cases where it is evident that we have failed people at the initial stages in their lives from the point of view of facilitating them and their families to end up in a better place rather than be stuck in the criminal justice system, as Deputy Kenny described it, in the futile and dangerous world of drug criminality in particular, but even on the periphery of it there is dysfunctionality and chaos that has a significant impact on society. We all constantly deal with issues concerning drug crime, drug debt intimidation and all the rest of it. I have stated many times previously that we must look at the whole issue. The programme for Government contains a commitment to a citizens' assembly on drugs and we must set it up as soon as possible. Sometimes regular people dealing with experts can bring us to a better place than decisions made in here within the confines of politics and whatever other constraints within which we operate. That is a vital first step. We must look at the overall system.

I welcome the proposals on the community safety forums, which could be an improvement on the JPCs, involving the likes of the HSE and other stakeholders regarding coming up with better solutions for delivering on the ground for communities. I also welcome the Guerin report and the fact that the Drogheda implementation board is being put into operation in the next while. I am somewhat worried about the likes of the Family Addiction Support Network. I believe the Department is dealing with funding for the Red Door Project in Drogheda. We must make sure that some of the initial promises and actions happen and that we can give an element of belief to people that this is going to be a body that might provide a template for how we can operate throughout the State. It is a matter of us getting all these pieces together. The vital piece is dealing with the likes of family supports whereby we can provide support to people at an early stage so that they can avoid going down this road.

We fully support the legislation. It could be beneficial. We are not necessarily talking about a large number of prisoners, but it could provide a benefit to families and society as a whole. We must look at the entire situation as regards also protecting victims, involving them in the conversation and making sure we put the best case scenario in operation as regards rehabilitation.

4:50 pm

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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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.

5:10 pm

Photo of Éamon Ó CuívÉamon Ó Cuív (Galway West, Fianna Fail)
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It is utterly wrong and unjustifiable that this directive was passed in Europe on 5 December 2011 and we are here now, in 2021, ten years later, having been prodded by the European Commission by way of referring Ireland to a European court for not implementing this directive. I cannot understand the reason for or the logic of our representatives going over to the European Union agreeing directives if they have no intention of implementing them. Maybe we agree to too many directives but if one agrees, one should then follow the letter of the law. I am particular hard where the State does not follow the law. We expect citizens to follow the law. We bring them to court for not following the law. It is totally unjustifiable when the State does not comply with its legal obligations. I have seen and heard no justification.

We know there was previous legislation, and I will come to that in more detail.

6 o’clock

We also know that, due to various court cases and so on, very few people will be transferred.

It is important to note that 1,100 Irish people are imprisoned abroad in 30 countries. However, one country dominates above all, and that is our nearest neighbour, the UK. After all the years waiting for the Bill to be published, it does not cover the UK, which is no longer a member of the EU. I understand that a commitment has been made to introduce amendments on Committee Stage, but I find that practice unacceptable. There were ten years to get this right and three years to deal with the Brexit issue. In the 26 years since the 1995 legislation, 459 applications of a total of 563 came from prisoners in the UK. There must be a cast-iron guarantee that we will see those amendments on Committee Stage rather than Report Stage.

The Minister of State might clarify another matter. Since Northern Ireland is jurisdictionally part of the UK, will people serving sentences in the North be able to apply for transfer to serve their sentences in the South? I know a number of Irish citizens who are desirous of doing so. Will the provisions apply to all Irish citizens irrespective of where they are from on the island?

I have heard much about prisoners. There are various types of prisoner. The more one visits prisons, the more one sees that prisoners are as varied as society. There are large drug barons with multinational operations, but if one carried out a census of the prison population, one would find that they only constituted a small minority. There are people in prison for all sorts of reason. Some prisoners are there for doing something wrong that caused a conviction but for whom reoffending is unlikely. One thing I am certain of is that all prisoners have human rights and are entitled to good prison treatment. The better the system, the better the treatment. The better the supports in prison, the more likely it is that, when people come out, they will reintegrate into society peacefully. The rationale for this legislation is humanitarianism and rehabilitation.

Something that always strikes me when dealing with prisoners is the significant burden put on families - parents, partners, spouses and children. I see this all the time. It is edifying to see the considerable effort that families make, many of whom must travel long distances to make visits, some of which can be short. Never forget that, when someone is sentenced to prison, it has a significant effect on family members in virtually all cases. In a strange way, we are relying on them more than on the prison system. Even people involved in the prison system have told me that people who are in stable relationships are much less likely to reoffend than those who are not. Therefore, we rely considerably on family members as part of the rehabilitative process. If people are serving prison sentences abroad, we can imagine the costs and burdens placed on their family members, who have committed no crime and are guilty of nothing, in trying to visit them.

According to the United Nations Office on Drugs and Crime, all things being equal, persons who serve their sentences in their home countries can be rehabilitated, resocialised and reintegrated into their communities better than elsewhere. The objective evidence is that giving people this option is a good idea.

I understand that the Bill contains a new principle that is part of the directive, that being people can be sent home against their will. I favoured the old arrangement where someone could not be transferred against his or her will. This is a matter that I will follow up during later Stages.

5:20 pm

Photo of Patricia RyanPatricia Ryan (Kildare South, Sinn Fein)
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I welcome the opportunity to contribute on the Bill, which seeks to implement the European Council decision on the arrangements for the transfer of prisoners between EU states. Some people might feel that the transfer of prisoners to their home countries should not be a priority. However, repatriation may assist in their rehabilitation, which can only benefit society. It can also help their family members, who are often innocent and inadvertent victims of the prisoners' crimes. While some of the crimes in question may be inhumane, we should not respond inhumanely, but we must remember that the victim is the priority concern.

I wish to address the issue of states that withhold prisoner transfers as a punishment for political prisoners. Amnesty International has criticised Spain and France, both of which have used separation of Basque political prisoners from their families as a source of collective punishment.

I wish to draw attention to a point made by a charity that works with Irish prisoners held abroad. It has warned that the proposed legislation on repatriation will be insufficient without adequate resources to process applications efficiently. Last month, ICPO called for a well-resourced, transparent, fair and explicit repatriation system to be put in place as a matter of urgency. Its call came after the charity published a survey of Irish citizens in prisons overseas. It sent questionnaires to 1,100 prisoners and received 114 anonymous responses. The survey found that 60% of respondents reported experiencing mental health difficulties in prison, a problem exacerbated by Covid-19 restrictions. The survey also found a number of other problems linked to the pandemic, including a lack of visits, prolonged lockdowns in cells, delays in legal hearings and an inability to access educational and offender behaviour courses.

I support the Bill, which is an EU initiative, with one strong caveat. The majority of Irish prisoners abroad are in British prisons. As Britain is no longer in the EU, the Government needs to act urgently to ensure that we have reciprocal arrangements in place. The Minister of State referred to this.

I wish to discuss a repatriation issue and what he and his colleagues can do. Mr. Richard O'Halloran has been mentioned. He has been prevented from leaving China for more than two years. He has not committed a crime. He is being kept over fraud allegations directed against the Chinese owner of the Irish-based leasing company for which he worked. His family are deeply concerned. As Irish citizens, we should also be concerned. Will the Minister of State examine the matter?

Photo of Catherine MurphyCatherine Murphy (Kildare North, Social Democrats)
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I welcome this legislation, which is long overdue. It seems that every time we have a debate on European legislation, I can use a copy-and-paste paragraph about the flagrant disregard for the need to transpose European framework decisions in a timely manner. It is 13 years since this framework decision was written and ten since the deadline for transposing it passed, yet here we are in 2021 with formal proceedings being taken against Ireland in the Court of Justice of the European Union, a domestic action before the Court of Appeal and Ireland facing the possibility of no longer being able to participate in the Schengen Information System should this legislation not be enacted by the year's end.

We need to know why this is constantly happening. It is not that it can be postponed forever; it has to be done. Is it an issue of staffing or of Ireland not being in support of a particular directive? We need to have some understanding of what is in the queue and why we are constantly seeing these delays. We are seeing this over and over again. The Minister of State might indicate in his response what the delay is and if there are other pieces in the queue in within his particular department. Several Deputies have expressed repeated concern about this.

This legislation ultimately makes it easier for a person to serve a custodial sentence imposed in another EU country in their country of residence, with the aim of enhancing the prospects of a person's rehabilitation. It is welcome that the ICPO supports this legislation. I hope the Minister will listen to its call for a well-resourced, transparent and fair expeditious repatriation system, which needs to be put in place. The legislation alone will not address all of the outstanding issues with repatriation. It will be completely insufficient if the system is not created and resourced.

ICPO estimates that 1,200 Irish people are serving sentences abroad in approximately 30 countries. Many of these people serving sentences overseas are doing so away from their families, sometimes facing language barriers, in an unfamiliar justice system and with an uncertain future upon their release. The importance of connection to family in the context of rehabilitation and the need for a rehabilitation programme to be put in place in advance of release of a prisoner has been stated on numerous occasions. I concur with the points that have been made in regard to families also serving a type of sentence, particularly where there are children involved. Generally, if it is safe for them to do so - on occasion it is not - children should have the right to know their parent. That is a particular difficulty in this case.

Last year, ICPO conducted a survey. Essentially, Covid exacerbated the problems. A total of 60% of respondents reported experiencing mental health difficulties while in prison, with a significant decline in conditions noted during the pandemic. The lack of visitor access and lengthy lockdowns are a significant problem. We should acknowledge that there are some good examples of how the Prison Service here dealt with Covid, which was a collaboration between prisoners and prison staff. More than 40% of the respondents to the survey did not have plans for after their release, which highlights the difficulties of this particular group of prisoners when it comes to rehabilitation and resettlement services.

Many of the services available in Ireland cannot be accessed by prisoners overseas. People are left adrift once released without vital support services that are needed both during and after their time in prison. As has been said, a variety of sentences are being served and there is a variety of prisoner types, with many of them, probably, on the lower end. It is Government and EU policy that, where possible, people should be permitted to serve their sentence in the country they call home, close to their support networks and with the best chance of rehabilitation.

While Covid undoubtedly resulted in reduced standards for prisoners surveyed, no inward prisoner transfers to the State were conducted last year. Deputy Howlin stated there have been none in the past five years. I had wondered if it was just Covid that had impacted them. It is important that the Minister of State when replying tells us about the 1,200 people who are currently serving their sentences abroad. For example, have people applied to transfer, how many requested a transfer in the past year or within the past five years, and for what reasons might those requests not have been accommodated? Will the Minister of State provide data in respect of transfer requests?

It is a welcome feature of this legislation that there are provisions to refuse a request to transfer a sentenced prisoner where there is a belief that he or she might face prejudice due to sex, race, religion, ethic origin, nationality, language, political opinion or sexual orientation. There are, however, a number of classes protected under our equality legislation that are not recognised here and should be added, namely, gender identity, disability, civil status, family status and age. While the legislation does adhere to Article 6 of the Treaty on the European Union and the human rights obligations stated within it, we can never be complacent about our responsibilities to protect individuals from discrimination within the EU. The EU has long had a poor record when it comes to sanctioning member states for breaches of the treaty and of human rights. It very much leaves this to the individual jurisdiction. The actions of certain countries over the past few years, that is, Hungary and Poland, have raised particular human rights concerns. Women's rights, freedom of expression, judicial independence and the rights of the LGBT community have been under attack in these jurisdictions for some time now. Recently, Hungary passed a law outlawing the distribution of content that is deemed to portray or promote LGBT people to minors. This follows legislation enacted last year which made it impossible for trans and intersex people in Hungary to legally change their gender, an action which further emphasises our need to include gender identity within the list of protected classes under this legislation. It is welcome to see the EU begin a substantive action against Poland and Hungary, with threats of daily fines and withheld payments due to these rule of law violations. We need to use all tools at our disposal to protect human rights and the rule of law within the EU. Any rogue member state should, of course, face sanction.

I hope that we take our responsibility to ensure the well-being of any sentenced person in this country seriously and that the Minister will not be hesitant to refuse repatriation on human rights grounds to other member states regardless of the political fallout that might occur. I also want to refer briefly to the case of Richard O'Halloran who is convicted of no crime and is being denied the right to come home and of access to his family, in particular his children. He has missed key moments in their lives and is still facing, two years on, a great deal of uncertainty. There is a high level of public concern about that. I encourage any and all efforts that can be made to make sure that is remedied without further delay.

5:30 pm

Photo of Neale RichmondNeale Richmond (Dublin Rathdown, Fine Gael)
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I appreciate the opportunity to contribute to this important and timely debate on this legislation. I thank the Minister of State for bringing it to the House. Like my colleague, Deputy Catherine Murphy, I agree that at some point we need to look at the process of keeping up with the transposition of European directives and ensuring that Ireland is not a laggard when it comes to implementation of European legislation. That said, this is worthwhile and important legislation, even though there are a number of amendments to be teased out on Committee Stage and more to be brought from the House.

It is great to see it here and a great opportunity to contribute to it.

There are two approaches I wish to take to this legislation in my brief remarks this evening. The first goes to the crux of the legislation and is something we should always be mindful of when we talk about the penal system and people in prison, namely, that we should always consider the methods and merits of rehabilitation. It is far easier to rehabilitate a prisoner or convict if he or she is in a jurisdiction where he or she speaks the language, has opportunities to see his or her family, better himself or herself, educate himself or herself and perhaps rehabilitate himself or herself from addiction. Transferring prisoners to their home jurisdiction is certainly the most favourable approach to ensure that. As a number of Deputies have remarked, the vast majority in prison are not the masked criminals or the supervillains but people who have done wrong and are facing their sentence. As a society, we have a responsibility to guarantee their human rights and their rehabilitation. The opportunities this piece of legislation provides, in the form of ensuring repatriation, is something that should be really pursued by the Government. However, I agree with Deputy Catherine Murphy we must be cautious that while the vast majority of EU member states are very similar to Ireland in their approach to the judicial system, the rule of law and human rights, there are a number of worrying incidences in member states where the rule of law is simply being flouted and the human and civil rights of people, be they Irish citizens or otherwise, cannot always be guaranteed. That requires a very keen eye on the part of the Departments of Foreign Affairs and of Justice to ensure that level of equality and equity.

There is an another element we must look at, that is, the hardened criminals we must get home to face justice here. We must get them home to ensure they atone for the crimes they have committed against Irish people and indeed society at large. When looking at this legislation, we must seriously consider how we can strengthen the European arrest warrant but also our ability to perform extraditions. There a number of Irish criminals who are at large outside the EU, smugly looking back at the victims of their crimes, society at large, An Garda and our Government in this jurisdiction. They think they are beyond our reach. We must ensure the agencies of the State are given absolutely every resource that can be made available to them to ensure those people can be brought home to face justice and that we do not simply see them in tabloid newspapers making a mockery of us when some other jurisdiction or regime is more than happy to accommodate them.

Extradition is a very delicate matter, however. I welcome the decision taken by the Department of Foreign Affairs to suspend our extradition treaty with Hong Kong in light of the crackdown on protests in that jurisdiction by the Chinese Government and domestic lawmakers. A number of Deputies have already made the point, and I agree, that it is vitally important that we continue the effort to bring Mr. Richard O'Halloran home. Mr. O'Halloran and his family are constituents of mine and are known to me. The work going on very publicly and behind the scenes by the Minister for Foreign Affairs, Deputy Coveney, and his officials with Chinese officials is a credit to them, but we cannot let up. The fact Mr. O'Halloran has been away from home for two years on trumped-up charges simply is not good enough. We cannot cease to ensure that every effort is made to ensure he comes home.

This is a good Bill. It is good for Ireland and for the entire EU. Its swift passage through this House, with all the checks and rigours of democracy, is vitally important but the main aspect of it is that when we can receive returning prisoners, we ensure we fundamentally focus on their rehabilitation and ensure that when their sentence is finished they go back into Irish society as functioning and committed members of it. That is our responsibility as a State.

5:40 pm

Photo of Michael CollinsMichael Collins (Cork South West, Independent)
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The Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021 was published on 29 July and comprises 58 sections. The purpose of the Bill is to implement EU Council Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union.

While we are talking about criminal justice and law, I wish to raise the extensive mural at Kent Street in Clonakilty which was completed this year. It marks a number of historical events and includes a depiction of General Micheal Collins. The mural was defaced with silver spray paint. The face of the freedom fighter was completely covered by a crudely-drawn graffiti tag. This mural was funded by Cork County Council and created in the summer by artists and Mr. Darren Warren of the Waterford Walls projects. The vandalism was committed ahead of Monday's unveiling of the new west County Cork Michael Collins Trail. The people of Clonakilty are angry, and rightly so, as we are all very proud of the Michael Collins Trail, museum and mural. People who go out and damage property like this must be dealt with appropriately, either by the Prisons Service or, if it is due to an illness, they must receive the proper care and access to mental health services. I wish everyone involved with the new Michael Collins Trail the very best of luck and congratulate them on their hard work in getting the project up and running and honouring one of the finest freedom fighters of our time.

This Bill, as I said, is to implement an EU Council framework decision. I saw a recent judgment - I will not go into the detail of it because we are not allowed to here - which showed what I call leniency. Someone, basically from another country, came here and did some harm to a lady and got a very lenient sentence. I felt deportation was the fastest and best way because, listening to the outcome of the case, the same individual had carried out numerous crimes in his own country before he came here. What he did to that lady was shocking and appalling. I am not going to mention the case so we do not get ourselves in any trouble but there must be some way of dealing with these people. The strongest way possible would be to send them back so that they can be sentenced again in their own countries, close to their own families. Maybe they could spend some time coming up with their own solutions as to why they have to hurt people to vent their anger.

There are other issues as well which are dear to my own home. I wish to speak of the awful murder committed on 23 December 1996, of a foreign national who was only 39 years of age. A young and loving mother was brutally murdered. Dr. John Harbison, the then State pathologist, told an inquest into her death that she died of multiple injuries, including laceration of the brain and a fracture of the skull caused a blunt instrument, just a few miles from my home. This has left her whole family devastated and 25 years later they are still looking for justice. We must urge the Director of Public Prosecutions, DPP, to go back and look at the file, read it and ask why the case was not prosecuted over the years. This country, and our legal system, owes it to murder victim's family and also to the people of west County Cork, who have been left with this awful shadow cast over what we consider one of the safest places in the world. Over the past year, this case has gotten much publicity. However, we must not forget that behind the movies, books and interviews, the victim was only 39 years of age and was a mother who left a child behind. She did not die in a car accident. She did not die due to an illness. She was murdered by someone who thinks they have got away with it. The time will come when the person who committed this atrocious crime will be arrested and convicted. Then the victim will be able to rest in peace, and maybe her family will finally be able to get on with their lives. I ask the Department of Justice and the DPP to get involved and look again at this case for everyone's sake.

Photo of Bernard DurkanBernard Durkan (Kildare North, Fine Gael)
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As no one else is offering, I call the Minister of State to conclude.

Photo of James BrowneJames Browne (Wexford, Fianna Fail)
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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.

Question put and agreed to.