Brian Lenihan Jnr (Dublin West, Fianna Fail)

Senator Tuffy has raised an interesting question regarding the powers of the High Court. Section 9 deals with the powers of the High Court to make orders for the enforcement of foreign sentences in this jurisdiction. The general rule is that the duration of the foreign sentence should not be altered, even where it exceeds the maximum duration for the same offence under Irish law. In line with the existing provisions in the 1995 Act, the Bill provides that the High Court may set the sentence at the maximum level under Irish law where the Minister makes a request to do so. The court is, therefore, given a discretion to agree to a ministerial application to reduce the sentence in those circumstances. However, Senator Tuffy seeks to impose a duty on the court to reduce the sentence in those circumstances. That would not be a desirable state of affairs because the Judiciary has to be independent in the implementation of this legislation. The Minister cannot make a final decision on the issue of whether a sentence should be reduced to correspond with the relevant sentence in Irish law.

The 1983 Council of Europe convention on the transfer of sentenced persons is relevant. Under this convention, the administering state has two ways to enforce the sentence imposed by the sentencing state. It may continue to enforce the sentences imposed, in which case it is bound, subject to technical modifications, by the nature and duration of the sentences determined by the original sentencing state, or it can adopt the sentence prescribed by its own law for the same or a similar offence. Ireland chose the continued enforcement principle when it ratified the 1983 convention. This requires that the sentence to be served should be the same in its duration as the one imposed. This can apply even where the sentence imposed exceeds the maximum duration for a similar offence under Irish law.

Accepting the Senator's amendment would put the provisions of this Bill out of alignment with those that apply under the 1995 Act as amended. This Act was amended in 1997 to facilitate the transfer into the State of persons who had been sentenced to periods of imprisonment greater than the maximum penalties allowed under Irish law for similar offences. Under the 1997 Act, notwithstanding Ireland's declaration at the time of ratification, the Minister may request the court to adapt the foreign service. He will do so generally where the foreign state agrees. That is one of the reasons there is ministerial intervention in this type of application. The 1997 Act, therefore, ensured that transfers could take place with states which insist that there can be no question of a sentence imposed in the sentencing state being reduced.

At the same time, it allowed a mechanism for the adaptation for the duration of sentences where the states in question have no objection to this procedure. Similar considerations arise regarding the enforcement of sentences under this Bill. If the amendment was accepted, states which insist that there can be no question of the imposed sentence in the sentencing state being reduced would simply look for the extradition of the person concerned rather than have the sentence transferred. The person in question would lose out as he or she would have to serve the sentence in the foreign sentencing country rather than in Ireland of the welcomes.