Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I am very pleased to present this Bill to the Seanad. I am also pleased to report that it received general support on its recent passage through the Lower House. I do not wish to tempt fate or indeed the dispositions of Senators but I hope it might receive similar general support here. The Criminal Justice (Mutual Recognition of Probation Judgments and Decisions) Bill will give effect to the provisions of EU Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions.

The Bill is quite technical legislation but it has a very simple purpose. Its aim is to facilitate a person who is under the supervision of the probation service in one EU member state but who lives in another member state to return home and continue his or her supervision there. The purpose of a probation order is to prevent reoffending through offender rehabilitation. A key part of rehabilitation is reintegration into the community, and this is very challenging if the person is away from his or her home, family and community. This Bill will create the legal framework to facilitate the return of a person to his or her home country while ensuring that the necessary probation supervision continues and that the legal consequences for failing to engage with that supervision can be enforced, if necessary.

The Bill transposes an EU framework decision and the text of the Bill closely mirrors the requirements of that framework decision. The framework decision is founded on the principle of freedom of movement and the consequent need to ensure that non-residents subject to criminal proceedings are not treated differently from residents. This framework decision is one of a number of measures designed to ensure that the courts have the same options open to them for dealing with non-residents as they have for residents and that the member state criminal justice systems can recognise and enforce one another's judgements as EU citizens move between member states.

The Bill applies to individuals who commit an offence while temporarily in another member state, perhaps on holidays or working or studying abroad for a short period. The benefits of the measure may best be illustrated by some practical examples. If a person living in Ireland goes on holiday to another member state and commits an offence for which the court in that member state imposes a community service order, that person would have to stay in that state, potentially for months, to carry out his or her community service there. He or she would be away from family and perhaps lose a job or accommodation. The consequences could be quite significant for the sentenced person, much more so than for a person resident in the state who is in the same circumstances and receives the same penalty.

Under this Bill, that person could have his or her community service order transferred to Ireland. He or she could return to the State, carry on working and living with his or her family and carry out the community service order under the supervision of the Irish Probation Service. Transferring a probation decision under the Bill requires the consent of the person concerned so it cannot be used to remove a person from one state to another if he or she does not wish to go. The benefits for the individual are obvious and this is likely to encourage compliance with the probation decision. If the person fails to comply with the community service order, the Probation Service could enforce the order through the Irish courts, so the community protection element is there too.

The Bill also provides for probation orders or community service orders imposed by the Irish courts on individuals who are not resident in this State to transfer those orders to the person's home state if the person wishes to return home. An example would be a member state student studying in Ireland over the summer who commits an offence for which a one-year probation order is imposed. Under the provisions of this Bill, that order could be transferred to the person's home state to allow him or her to return home and continue studying while still undergoing the necessary probation supervision to divert him or her from further offending.

There are, of course, many Irish citizens working and living across the EU who could also benefit from the provisions in this Bill. It is important to note that the measure encompasses not only probation and community service orders but also other types of probation supervision, which can arise in respect of more serious offending. These include suspended sentences involving probation supervision and post-release supervision following a prison sentence. This Bill potentially could facilitate the transfer into and out of the State of serious offenders who may have served a prison sentence and are subject to several years of post-release supervision. This is perhaps an even more important aspect of the measure as rehabilitation is so important in such cases. Having somewhere to live and family support will assist such offenders in reintegrating into society and reduce the risk of reoffending. Communities are safer when probation is successful.

I will outline in more detail the contents of the Bill, which contains 32 sections and largely reflects the EU framework decision. Section 2 is a standard general interpretation provision for terms that will be used throughout the Bill.The section also specifies that any word or expression used in the Act and the framework decision shall have the same meaning unless the context requires otherwise. Section 3 provides that the Act will not apply to a judgment that is handed down before the commencement of the Act. Section 4 specifies that the courts and the Minister for Justice and Equality will be designated as the competent authorities for the framework decision. Section 5 enables the Minister to designate appropriate persons to carry out certain functions under the Bill. Section 6 empowers the Minister to make regulations. Section 7 is a standard provision on the payment of expenses.

Part 2 establishes the rules and procedures to apply where Ireland is the state that issues the probation judgment. Section 10 provides that a request to forward a probation judgment to another member state may be initiated by either the director of the Probation Service or the person who is the subject of the probation decision. Section 11 provides that a probation judgment may only be forwarded to the member in which where the person habitually resides with the person's consent and when any appeal process has been completed. The Minister is not obliged to transfer a judgment to another member state. In limited circumstances, a judgment may be forwarded to a member state other than that in which the person resides, with the consent of that state.

Part 3 establishes the rules and procedures to apply where Ireland is the state executing the judgment, that is, where the person subject to a probation order is coming to Ireland to have his or her probation supervised in this State. Sections 17 to 19, inclusive, define a number of important terms in the Part and set out the types of probation measures the State may recognise and supervise under the Bill. Sections 20 and 22 address several procedural steps that may be taken where documentation received is incomplete or sent to the wrong place, and to establish evidential rules. Section 21 permits the Minister to accept a request to transfer a person who is not normally resident in the State from another member state where that person either is an Irish citizen or has close ties to the State.

Sections 23 and 24 establish the procedure for accepting or refusing a request to transfer a sentenced person into the State. The request is first examined by the Minister and may be refused if certain grounds apply. Where no refusal grounds apply, an application is made to the court to endorse the judgment. The court again examines the request for refusal grounds and, if none is present, it is obliged to endorse the judgment. Grounds for refusal include incomplete documentation, immunity, specialist treatment not being available, lack of consent and the judgment falling outside the scope of the framework decision. Section 24 also allows the court to adapt the nature or duration of the probation measure to make it compatible with comparable measures under national law. The purpose of such adaptation is to ensure that the probation measure can be supervised and that national law will apply in cases of non-compliance. If the court endorses the judgment, section 28 provides that the Minister must recognise it and take the necessary steps to begin supervision of the person.

Section 25 makes specific provision for judgments relating to a suspended sentence or conditional release to ensure that such judgments correspond with the comparable provisions in national law. This section also provides that the court must specify the prison to which the sentenced person is to be committed in case of revocation of a suspended sentence or conditional release. Section 26 establishes a time limit of 60 days for the court to make a decision on recognition of a judgment. Section 27 provides for the notification of interested parties. Section 29 sets out the information the Minister must provide to the other member state in respect of a judgment that has been transferred into the State. Section 30 provides that responsibility for taking a decision to revoke a conditional release for non-compliance, where such a decision would have to be taken by a court in the issuing state, remains with the issuing state. Revocation of temporary release is an executive function in this State, so this provision ensures judicial decision-making power is retained in such circumstances. The person may give evidence to the court in the issuing state by video link. Section 31 provides that a person may not appeal the original judgment in the executing state. Finally, section 32 provides that responsibility for the judgment and the supervision of the person will transfer back to the issuing state if the person absconds or is prosecuted for another offence in that State.

This is lengthy and technical legislation, which is necessary to ensure that the EU framework decision is fully transposed and to establish a clear and legally sound framework for the transfer of probation orders between member states. Notwithstanding its complexity, its aims are straightforward. It establishes a mechanism to return non-resident offenders to their home country, subject to probation measures, while supporting rehabilitation and ensuring the necessary enforcement options are available to local authorities to ensure the safety of the public. Members will be aware of the valuable work with offenders carried out by the Probation Service. The service has been actively involved in preparing the proposals in this Bill and identifying the structures to be put in place to begin operating the new measures, which can be done without delay. It is difficult to estimate the number of people who may wish to transfer probation supervision under these provisions, but it is not likely to be a great number, at least in the short term. However, for those who find themselves abroad, away from family and community supports, it will be a valuable tool to support rehabilitation and reintegration, with the ultimate goal of providing safer communities. I commend the Bill to the House and hope Senators will find a way to support it.