Seanad debates

Thursday, 29 April 2004

Transfer of Execution of Sentences Bill 2003: Committee Stage.

 

12:00 pm

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)

The core important issue is the whole function of the High Court in respect of the legislation. In the proposed amendment to section 2, after the reference to sentences whether imposed before or after its passing, the Senator wishes to insert the proviso "unless the High Court on the application of the sentenced person concerned determines that it would be unjust for this Act to apply to that person". In section 9, the Senator wishes to extend the jurisdiction of the High Court.

The amendment proposed to section 2 is made in the context of a clause which provides that the Act is to apply to sentences imposed both before and after the passing of the Bill. The provisions I am introducing in the Bill for the enforcement of sentences require the full involvement of the High Court before the sentence can be enforced in the State. My understanding is that the amendment aims to ensure the court is satisfied that the requirements about, for example, due process and fair procedures, were complied with at all earlier stages of the sentencing state. Such matters are already within the inherent jurisdiction of the court. Any statutory provisions must, therefore, be read in the light of the constitutional safeguards that the courts must apply in such matters. Accordingly, the proposed amendment is unnecessary. Such matters are better left to the courts' discretion. It is always open to the sentenced person to raise the issue before the court.

In the case of amendment No. 23 which proposes a new paragraph (f), these are matters that will arise to be examined in the normal course. Specific provision can be made in relation to them. By making specific provision in relation to them, that can interfere with the discretion which the High Court has always had. As I have indicated, the High Court will always have regard to constitutional principles such as due process and fair procedures. It would seem the better course if these matters were left in the inherent powers of the High Court and that we did not try to prescribe by statutory rubric how the High Court should do its business.

The proposed amendment No. 22 to section 9(2)(d) is a separate matter. It is unnecessary as the word "and" would automatically be removed if the next amendment were accepted.

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