James Browne (Wexford, Fianna Fail) | Oireachtas source

I am pleased to bring the Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021 before the House.

The purpose of this Bill is to implement framework decision 2008/909 on the mutual recognition of custodial sentences, which provides for the transfer of sentenced persons between EU member states. The Bill also amends and updates the existing legislation underpinning transfers for non-EU states, including the United Kingdom.

At present, transfers are conducted under the Transfer of Sentenced Persons Act 1995, which implements the 1983 Council of Europe convention, and the Transfer of Execution of Sentences Act 2005, which implements the additional protocol to that convention. The framework decision supersedes the convention in respect of transfers within the EU, and makes several important changes to how transfers operate.

As a result of Brexit, the framework decision does not apply to UK transfers. The 1995 and 2005 Acts will remain in force, and the UK and other non-EU member state transfers will continue to take place under them.

A natural consequence of freedom of movement within the EU and the common travel area is that an increasing proportion of people live outside their home state. This diversity is reflected in prison populations. In Ireland, one in seven prisoners are not Irish nationals; this is almost exactly in line with the population as a whole.

Prisoners serving sentences abroad face significant humanitarian difficulties beyond those normally arising from the deprivation of liberty, and these difficulties can undermine the goals of rehabilitation and social reintegration. They can arise from language barriers and cultural differences, thereby making it more difficult for persons to engage with other prisoners and with prison services but, perhaps most significantly, they arise from a lack of contact with family and friends.

Hardship is borne particularly by prisoners' families. As this Bill has progressed, I have met the parents of young people imprisoned abroad and am particularly conscious of the pain suffered by those whose loved ones are in prison far away.

The 1983 convention was a major step in facilitating transfers home and it established a relatively simple mechanism that was based exclusively on the consent of all three parties, namely, the sentenced person, the state imposing the sentence and the state being asked to take over its enforcement.

The framework decision brings custodial sentences within the scope of the principle of mutual recognition of judicial decisions within the EU. The most significant change to the process under the convention is that transfers may, under limited circumstances, take place without the consent of either the sentenced person or of the state where the person is being transferred to. The transfer remains a discretion of the state that has imposed the sentence.

I might note in passing that terms used in the framework decision and, accordingly, in Parts 2 and 3 of the Act are "issuing state" to refer to the country where the sentence is imposed and "executing state" to refer to the country where the person is transferring to. The convention uses "sentencing state" and "administering state". As we are discussing both systems, I will use the latter terms exclusively as they are perhaps clearer in meaning.

Non-consensual transfers may arise in two important situations: where the person is a national of the administering state and lived there prior to the imposition of the sentence; and where a person will be sent to the administering state as a consequence of a judgment after the completion of his or her sentence.

It is important to emphasise that an essential precondition of a transfer is that it would benefit the social rehabilitation and successful reintegration into society of that person. This applies whether or not the consent of the person is required and procedural safeguards are in place to ensure that the person may participate in any consideration of a transfer.

The framework decision also applies to situations where a person has fled and the judgment may be forwarded to the State for the purpose of its enforcement here. In appropriate cases, transfers may also be conducted in respect of persons who have been committed to the Central Mental Hospital under the Criminal Law (Insanity) Act 2006 and for under-18s detained under the Children Act.

I referred to the importance of transfers for the persons concerned and their families. I am also extremely conscious of the potential impact on victims of crime of a transfer, and the importance of ensuring victims are both fully informed of the possibility of a transfer and what the consequences of that would be, and can contribute to the making of the decision. This Bill amends the Criminal Justice (Victims of Crime) Act 2017 to place a statutory obligation on the Minister to inform victims not only of a transfer, but of an application for transfer. Provision is then made in the legislation for the Minister to invite or otherwise consider submissions made.

As Senators will be aware, the existing legislation implementing the convention has been the subject of legal challenge in recent years. Differences in sentencing structures between states have proven difficult, and often impossible, to reconcile. This has prevented the completion of many transfers, particularly from the UK to Ireland.

While the issues involved are complex, they stem from the fact that a sentence is rarely simply a term of years to be served in prison. Instead, they incorporate the possibility of accelerated release based on a range of factors, and they may provide for periods after the ordinary completion of the custodial part of the sentence where a person may be returned to prison if he or she does not abide by post-release conditions.

The general approach taken in international prisoner transfer agreements is that the sentencing state determines the legal nature and duration of the sentence, and this is binding on the administering state. Thereafter, the administering state applies its own rules on how the sentence is enforced, covering, for example, in terms of remission.

However, as the Supreme Court decision in Sweeney v. Governor of Loughan House showed, this distinction may be open to question. The court found that certain foreign provisions on conditional release, including those applying by default in the UK, should be treated as part of the legal nature of the sentence. Only part of the sentence, therefore, could be transferred. Similar legal challenges arise under the framework decision.

There are no straightforward solutions to these difficulties, and the possibility of further legal challenge will, of course, arise. Legislation cannot account for every possible sentencing structure which might be in place in another state now and in the future. Accordingly, what the Bill sets out is a flexible mechanism to ensure that both the courts and the Minister have appropriate powers to deal with a range of scenarios.

In brief, that approach is as follows: the definition of sentence expressly includes periods of time which may be served otherwise than in custody; a new power to grant conditional release is provided which allows the Minister to take into account the conditional release provisions applying to the sentence before transfer on a pro ratabasis; conditional release measures are considered part of the administration of the sentence and not its legal nature, even where those conditional release measures are automatic and arise by operation of law; and minimum custodial periods applicable to life sentences are not binding but are taken into account by the Parole Board similarly to recommendations made by a court.The court is also given a general power to take all measures necessary for the enforcement of the sentence and powers to adapt or vary adaptation, or to vary orders made, should issues subsequently arise.

Taken together, and for the majority of sentences typically encountered, these provisions mean sentences will transfer to the State for the full period of possible custody. Irish remission will apply to the part of the sentence served after transfer, and the Minister will have the power to grant conditional release, where appropriate, in respect of the part served before transfer.

Further procedural changes are included, notably the introduction of an inter parteshearing after a person is brought into the State. This ensures any issues in determining the length of time remaining to be served may be definitively resolved at the outset. These provisions are being applied to transfers under both the new framework decision system and the existing convention system.

I will turn briefly to the content of the Bill. While it is long and technically complex, this in most cases reflects the detailed procedures and requirements in place under the framework decision and the alignment of the two existing Acts with the new approach. It would be impractical to discuss every provision, so I will give a brief overview. I am happy to address other issues that Senators may wish to examine, either in the course of this debate or on Committee Stage, as appropriate.

Part 1 deals with general matters in respect of the Bill and notably sets out the respective roles of the Minister and the courts. Part 2 applies where Ireland is the sentencing State. As under the convention regime, decisions in respect of outward transfers are primarily administrative matters for which the Minister is responsible. Part 3 applies where Ireland is the administering State. Responsibilities are split between the Minister and the High Court in respect of incoming transfers. Part 4 provides for a new system of conditional release under the Criminal Justice Act 1960 that will be applicable to transfers under both the convention and the framework decision. Part 5 aligns the Transfer of Sentenced Persons Act 1995 with the approach taken in the framework decision. Part 6 similarly aligns the Transfer of Execution of Sentences Act 2005. Part 7 addresses miscellaneous and consequential matters. Notably, as I have mentioned, it amends the Criminal Justice (Victims of Crime) Act 2017 in respect of the notification to victims when an application is made.

The Bill is certainly complex, but it is a careful transposition of the framework decision into Irish law and reflects the judicial developments that have taken place since the introduction of the 1995 Act. While it applies to a relatively small proportion of those detained, for that group it will be very significant.

I am pleased to commend this Bill to the House and look forward to the Senators' contributions.