Michael McDowell (Dublin South East, Progressive Democrats)

I thank Senators for their kind remarks and for all the work undertaken in considering this Bill at great length before it went to Dáil Éireann. The House will note from the few amendments that were made in the Dáil that the general view in the Lower House was that all the valuable work had been done in this Chamber. Therefore, I wish to thank Senators for having done that work with me.

The Bill deals with situations where a sentenced person has fled from the sentencing state and has returned to his or her state of nationality without having served the sentence. The Bill provides that the sentencing state may request the state of nationality to enforce the sentence. As a result of this Bill, Ireland, as the sentencing State, will be in a position to request other states to enforce Irish sentences in their jurisdictions where the person is a national of that other state and has fled from Ireland without serving or completing a sentence imposed here.

The reverse will also be possible. Ireland will be able to accept requests from other states for the enforcement against Irish nationals who have fled from the sentencing state without serving a sentence imposed there. Needless to say, these arrangements can only operate with states that are also parties to international instruments, to which I have referred, and to which this Bill gives effect in Irish law.

In addition, we are providing in the Bill that these arrangements may operate only where the other state has been designated by the Minister for Foreign Affairs as a state with which we are prepared to operate these arrangements. That is a valuable safeguard. It will be seen that the arrangements under this Bill provide an alternative of kinds, in certain cases, to extradition. These arrangements are beneficial to the sentenced person insofar as they allow service of the sentence in the person's home state, nearer to family and in an environment which will generally be more favourable for that person. However, it is important to stress at the same time that it will also have the effect of ensuring the sentence is served and in that way it will ensure that justice is done.

Senator Henry raised the consistency of sentencing, which is a fraught issue. Even if one were to take the European Union as one's theatre of operations, there are radically different sentencing philosophies across the EU. I am not quite clear in my own mind that the people of Ireland would be prepared to adopt some of the approaches to, say, homicide cases that some other countries adopt in civil law. Likewise, the notion of minimum sentencing is far more common in the civil law system that in our system. We give our Judiciary a broad remit to decide sentences. The disadvantage of that approach is that consistency is difficult to extract from sentencing decisions, but the advantage is that justice is always flexible in respect of each accused person, and one case is not always treated as a precedent for another.

The balance between consistency and individuality is hard to strike. In recent times, however, we have had plenty of examples of major controversy about whether or not a sentence was harsh. That controversy cuts both ways, but we must accord to members of the Judiciary the respect to which they are entitled under the prosecution — that is, that unless they err egregiously it is their job to decide how to sentence, just as it is our job to decide what the law should be. There must be some degree of mutual respect between the pillars of the Constitution in those kind of cases, having provided for the right of the State and the accused to appeal sentences that they consider are wrong in principle or excessively lenient, as the case may be.

Since Senator Henry raised the matter of people in custody travelling through Ireland, I do not want to be struck dumb, however out of order she was. Under our Constitution, there are only two circumstances in which they can be held in custody by any foreign power in Ireland. The first is if they are being extradited and the second is if they are sentenced persons being transferred. Those are the only two situations, so there is no possibility whatsoever for it to be lawful under Irish law for anybody to be brought by a state in some form of informal rendition. It is simply unconstitutional and is not provided for in Irish law.