Ivor Callely (Dublin North Central, Fianna Fail)

I am pleased to present to the House the Transfer of Execution of Sentences Bill 2003. The central purpose of the Bill is to deal with the transfer of the execution of sentences where the sentenced person has fled from the sentencing state to his or her state of nationality. In this regard, the Bill gives effect to provisions in Article 2 of the Additional Protocol to the Council of Europe's Convention on the Transfer of Sentenced Persons as well as Articles 67 to 69 of the Schengen convention. Articles 67 to 69 of the Schengen convention correspond to those in Article 2 of the additional protocol. Enactment of this Bill will enable Ireland to ratify the additional protocol and to operate the relevant Schengen provisions.

The additional protocol and the Schengen provisions supplement the 1983 Council of Europe Convention on the Transfer of Sentenced Persons. The 1983 convention has been given effect in Irish law by the 1995 Act of the same name. Under that Act a national of one state party detained in another state party can apply for transfer to his or her country of nationality to serve out his or her sentence there. One essential feature of the existing system is that it is the prisoner who initiates the process by requesting the transfer.

The circumstances arising under this Bill are materially different from those covered by the 1983 convention. In cases arising under the 1983 convention, the person is in custody in the sentencing state and consents to return to the state of nationality. However, in the circumstances covered by this Bill, the person has already fled from the sentencing state before serving the sentence and is now in his or her state of nationality. The issue that therefore arises is to ensure that the person serves or completes the sentence that was lawfully imposed in the sentencing state.

The consent of the prisoner under the 1983 convention relates not to whether a sentenced person should serve the sentence but to the state in which it is to be served. In circumstances where a person has deliberately fled from the sentencing state and returned to his or her state of nationality, the person has in effect exercised his or her consent in relation to his or her return to the state of nationality. It is then a matter of ensuring that the person serves a sentence that was lawfully imposed in the sentencing state.

Before turning to the detailed provisions in the Bill, I will set out the circumstances in which it will apply. The Bill will apply in two categories of cases. First, it can apply in the case of a person sentenced by an Irish court who has fled from this State to his or her state of nationality without either commencing or completing the sentence. In that case, the Minister for Justice, Equality and Law Reform may request the authorities in the other state to enforce the Irish sentence. In the second situation, a sentencing state may make a similar request to this State in the case of Irish nationals who have fled back to this State prior to the commencement or completion of a sentence. Under this Bill a request from the sentencing state must receive the consent of the Minister for Justice, Equality and Law Reform before an application can be made to the High Court for a warrant for the person's arrest. The Minister has to be satisfied as to certain matters before an application is made to the High Court. In any event, the Minister may, having regard to all the circumstances, decide not to make an application. Following arrest, the High Court may make orders for the carrying out of the foreign sentence in Ireland.

The Bill has 13 sections. Section 1 provides for the definition of certain terms used in the Bill. Section 2 provides that the new provisions will apply in relation to sentences imposed either before or after the entry into force of the Act. This reflects Article 7 of the additional protocol and Article 21 of the main convention.

Section 3 provides a definition for correspondence of offences and is related to the dual criminality requirement. Offences will be considered to correspond where the acts or omissions constituting the offence would, if committed in one state, constitute an offence under the law of the other state.

Section 4 is an important section in the overall scheme being introduced by this Bill. It provides that the Minister for Foreign Affairs may by order designate countries that have accepted the relevant additional protocol or Schengen provisions. The order will identify the states with which Ireland will operate these arrangements. In other words being a party to the additional protocol or the Schengen convention will not, of itself, be sufficient. Ireland must also be satisfied about the systems operated by the other state before it agrees to operate these arrangements with it. Ireland will not be operating these arrangements where it is not so satisfied.

Section 5 provides that the Minister for Justice, Equality and Law Reform may request a country that has been designated under section 4 to take over the enforcement of the sentence in circumstances where the sentenced person has fled from Ireland to the other country. The Minister may make a request if he or she is satisfied that the person concerned is regarded as a national of that country; the order under which the sentence concerned was imposed is final; and at the time of issuing the request the sentenced person must, generally, have at least six months of the sentence concerned to serve.

Section 6 provides that the Minister may consent to a request from a country designated under section 4 for the execution in this State of a sentence imposed in the sentencing country on a person who has now fled to Ireland. Thus the Minister may consent to the execution in this State of a sentence imposed in the sentencing country on an Irish national who has now fled to the State.

Before giving consent the Minister must be satisfied that certain requirements have been fulfilled; that the person concerned is regarded as an Irish citizen; the sentence concerned is final; that the sentenced person has at least six months of the sentence left to serve; that dual criminality applies, meaning the offence concerned would constitute a criminal offence if committed in the State; and that, having regard to all the circumstances, it would be in order for the Minister to give his or her consent. A certificate is prepared and presented to the High Court under section 7 where the Minister consents to the request.

The nationality issue was addressed by Ireland when it ratified the 1983 Council of Europe Convention in 1995. It made a declaration of our understanding of the term "national" for the purpose of the convention which states: "For the purposes of this convention, the term "national" means, in relation to Ireland, an Irish citizen or any person whose transfer to Ireland is considered appropriate having regard to any close ties which the person has with Ireland." As a result, the term "national" as used by Ireland means an Irish citizen or any person who has close ties with Ireland. This approach is in line with the general position adopted by EU member states in 1987.

Returning to the provisions of the Bill, section 7 sets out the procedure by which a sentence imposed in another state may be executed in this State. It provides, as indicated earlier, for a certificate by or on behalf of the Minister to the effect that he or she consents to taking over the enforcement of the sentence, and provides for an application to be made to the High Court for the issue of a warrant authorising the arrest of the person concerned. The High Court, on production of the certificate, issues a warrant for the arrest of the person if satisfied there has been compliance with section 6(2). The ministerial certificate must contain certain information, for example, the name and address, where known, of the sentenced person and the sentence imposed on him or her. Under this section or section 8, a warrant may be executed by any member of the Garda Síochána in any part of the State even if it is not in the possession of the member at the time. However, the warrant must be shown and a copy given to the person arrested at the time of arrest or within 24 hours thereafter. A person arrested under a warrant must be brought before the High Court as soon as possible.

Section 8 sets out the procedures relating to the issue by the High Court of a provisional arrest warrant. This section gives effect to Article 68(2) of the Schengen convention and Article 2(2) of the additional protocol. Those articles provide that a sentencing state may request the administering state, prior to the arrival of documents supporting the request and prior to the decision on the request, to take the sentenced person into police custody or to take other equivalent measures. A warrant for provisional arrest may be issued by the High Court on an application by a member of the Garda Síochána, not below the rank of inspector, given with the consent of the Minister, that a request for the person's provisional arrest has been made by a sentencing country.

The Bill sets out the details that are to be included in the request for the warrant. A person arrested under a provisional arrest warrant must be brought before the High Court as soon as possible and the High Court must remand the person in custody pending the production of a ministerial certificate referred to earlier under section 7. That certificate will indicate that the Minister has received and is consenting to the request from the sentencing state. If a certificate is not produced within 18 days of the person's arrest the person will be released. The release of any person will not prejudice his or her re-arrest if a request for the enforcement of the penalty or detention order is made afterwards.

Section 9 provides that the High Court may make an order committing the person to a prison or Saint Patrick's Institution for the purposes of serving the sentence or remainder thereof. Before making the order, the High Court must be satisfied that the Minister has given his consent, the person is an Irish citizen, or has close ties with Ireland; the order imposing the sentence in the sentencing state is final; dual criminality applies, and so on.

The effect of an order is to authorise the continued enforcement by the State of the sentence imposed by the sentencing state and means, in practice, that the whole or the balance of the sentence will have to be served in Ireland. In other words, it will have the same effect as if it were a sentence imposed here. It will not be subject to appeal in this jurisdiction as that remains the prerogative of the sentencing state that imposed the sentence and since the Minister and High Court are satisfied that the sentence to be served here is final under the law of the sentencing state. In all other respects the sentence will be served the same way as a sentence imposed here and will be subject to the same rules, including remission and temporary release.

Section 9(3) provides that the Minister may apply to the court to adapt the duration of the sentence to conform with our law if the sentence imposed by the sentencing state is greater than the maximum term to which the person would be liable if he or she had committed the offence in the State. Subsection (4) provides that any element of a sentence, excluding duration, imposed by the sentencing state which renders the sentence less favourable than the penalty to which the person would be liable had he or she been convicted in the State for a similar offence will not apply if the High Court so directs. For example, Ireland will not impose penal servitude even if the original sentence provided for this.

Enforcement of the sentence ceases where the State is notified by the sentencing country that the person would be entitled to be released under its law. The person will be released unless his or her continued detention in Ireland is required as a result of a sentence imposed here or the person has been remanded in custody in respect of an offence committed in Ireland.

Section 10 provides that the Criminal Procedure Act 1993 shall not apply to a person detained under this Act. The 1993 Act provides for judicial review of certain convictions and sentences, for presentation of petitions for the grant of pardon on the grounds of miscarriage of justice and for payment of compensation by the State. Such proceedings would not be appropriate in the circumstances covered by this Act, since the events, witnesses, evidence etc. are outside the jurisdiction and are not amenable to the Irish courts. However, the Act does not prevent the person pursuing such an action under the law of the sentencing state.

Section 11 provides that no proceedings under section 3 of the Criminal Law (Jurisdiction) Act 1976 will be taken against a person who is imprisoned here under this Bill. Otherwise the person could be liable not only to serve a sentence imposed in Northern Ireland but, in addition, could be proceeded against under section 3 of the 1976 Act. Section 3 of the 1976 Act provides that a person who escapes from any lawful custody in which he or she is held in Northern Ireland shall be guilty of an offence.

Section 12 is a standard provision concerning expenses and section 13 provides for the Short Title and commencement of the Act.

The Bill will ensure fugitives serve their sentences. It will also reduce the risk of Ireland being seen as a safe haven for fugitives. The provisions also have advantages for the prisoner in that they offer an alternative to extradition that may be more favourable to the sentenced person and they also facilitate the family and relatives of the sentenced person by easing visiting arrangements and other contacts.

The Bill contains effective safeguards. The consent of the Minister is required before a request can be processed and the Minister will have discretion to decline requests where he or she is not satisfied with or has concerns about the arrangements being proposed in any particular case. Ireland will operate these arrangements only with states in whose systems we have confidence. A person may be arrested and imprisoned here only with the consent of the High Court. In addition, a person can be imprisoned only if convicted of an offence that corresponds to an offence under Irish law. I commend the Bill to the House.