Seanad debates

Thursday, 29 April 2004

Transfer of Execution of Sentences Bill 2003: Committee Stage.

 

SECTION 1.

12:00 pm

Photo of Ulick BurkeUlick Burke (Fine Gael)
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Amendments Nos. 1, 3, 30 and 31 are related and may be discussed together by agreement.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I move amendment No. 1:

In page 3, subsection (1), line 22, after "1997" to insert ", the text of which in the English language is set out for convenience of reference in Schedule 1 to this Act".

I would like to hear the Minister of State's comments on this amendment.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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The amendment proposed by Senator Tuffy's amendment proposes that the full text of the additional protocol and the Schengen Convention should be added as Schedules to the Bill, but we are not giving effect to the full protocol. The protocol contains nine articles and only two contain substantive provisions, namely Articles 2 and 3. Of these, Ireland proposes to operate Article 2 only and in those circumstances it would be inappropriate of the Oireachtas to include as a schedule the entire protocol when we are only giving effect to part of it. In any event, scheduling the protocol when the main convention itself has not been scheduled would seem odd and might lead to confusion as to the exact legal status of these international instruments. Such an outcome would defeat the purpose of the amendment.

Why then are we not scheduling the Schengen Convention, as proposed by Senator Tuffy's other amendment? The Schengen Convention consists of 142 articles and in this Bill we are giving effect to just three of those — Articles 67, 68 and 69, which deal with the transfer of the enforcement of criminal judgments. Ireland is opting into only some parts of the Schengen Convention, such as police co-operation, mutual assistance, criminal matters and extradition. We are not implementing provisions on cross-border hot pursuit, for example. Scheduling the whole convention, including those parts which we will not be opting into, could give rise to considerable legal confusion and that would also defeat the intentions behind the amendment.

What we are doing here is giving the force of law in the State to an international instrument. The Oireachtas could inadvertently give the impression that the entirety of these legal instruments was part of the domestic law of the State, were we to schedule them to this legislation.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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Given the Minister of State's comments, would it not be proper to schedule the full protocol and convention even if we are only implementing parts of them? Also, what are the future plans for implementation of the other parts of the protocol and the convention?

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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Implementing legislation may be required for other aspects of the Schengen Convention to which Ireland has signed up. That is another reason it would be inappropriate to schedule the entire convention to this Bill, which only deals with a small part of the Schengen Convention. The immigration control provisions of Schengen are under consideration in the Department with a view to legislation.

Amendment, by leave, withdrawn.

Photo of Ulick BurkeUlick Burke (Fine Gael)
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Amendments Nos. 2 and 7 are related and may be discussed together by agreement.

Sheila Terry (Fine Gael)
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I move amendment No. 2:

In page 3, subsection (1), between lines 25 and 26, to insert the following definition:

"relevant authority' means the person designated in the relevant country concerned who performs functions the same as or similar to those performed by the Minister under this Act;".

I seek the insertion of the definition of "relevant authority" in subsection (1). I have taken this from amendment No. 7 to section 5, as it is more appropriate in the definitions section. I ask the Minister of State to consider this favourably.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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Senator Terry is essentially seeking to insert the definition in the interpretations section but the definition is already contained in the wording of section 5(1) and the existing wording of that section is perfectly clear. The amendment simply repeats that wording.

Sheila Terry (Fine Gael)
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I am seeking to move this from section 5 because it is more appropriate to have it in section 1. I understand it is very clear and this is just for clarity. It would be more sensible to have this in section 1.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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I can give an undertaking to have this matter examined by the Parliamentary Counsel.

Amendment, by leave, withdrawn.

Amendment No. 3 not moved.

Section 1 agreed to.

SECTION 2.

Sheila Terry (Fine Gael)
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I have received notice that amendment No. 4 cannot be moved.

Photo of Ulick BurkeUlick Burke (Fine Gael)
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It is out of order.

Sheila Terry (Fine Gael)
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May I speak on the amendment if it is out of order?

Photo of Ulick BurkeUlick Burke (Fine Gael)
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Yes.

Sheila Terry (Fine Gael)
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I regret the Chair has ruled this amendment out of order because it would impose a cost on the State. This is a matter of accountability and the amendment sought to make the Minister accountable to the Houses of the Oireachtas in order that Members would have necessary information. I regret it has been ruled out of order.

Amendment No. 4 not moved.

Sheila Terry (Fine Gael)
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I move amendment No. 5:

In page 4, line 19, after "sentences" to insert ", including those imposed outside the State,".

There is a presumption in our legislation against extra-territorial effect and to rebut this presumption very clear words must be used. I propose the amendment to guarantee that the Act applies to sentences imposed outside the State. I hope the Minister of State accepts the amendment.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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I regret that I am not Santa Claus today.

Senator Terry referred to the presumption on extra-territorial effect. It is a presumption of statutory construction but one which does not have very cogent force in the context of legislation such as this, where the Long Title makes quite clear the Bill is implementing an international arrangement by way of mutual assistance.

This amendment would insert a provision in section 2, a general section describing the application of the Act, where the expression "sentences" would be extended to include "those imposed outside the State". However, it is clear when one examines sections 5 and 6 that there are two circumstances plainly envisaged in the legislation. Section 5 deals with requests of execution of Irish sentences in a designated country and section 6 deals with requests for execution of foreign sentences in the State. They are the two complementary parts of the legislation and are the core provisions of the Bill. It is clear from those sections that there is an expressed statement by the Oireachtas that we will have extra-territorial effect to the extent provided for in those sections. It is important to note the Bill does not apply to all sentences imposed outside the State but only to those imposed in designated countries. The Senator's expression might imply that the legislation applies to any sentence imposed in a foreign jurisdiction whereas it must be a designated country. It is clear from sections 5 and 6 that this entire exercise applies in designated countries. For that reason I cannot accept the amendment.

Amendment, by leave, withdrawn.

Photo of Ulick BurkeUlick Burke (Fine Gael)
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Amendments Nos. 6, 22 and 23 are related. Amendment No. 22 is consequential on amendment No. 23 and these amendments may be discussed together, by agreement.

Sheila Terry (Fine Gael)
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On a point of order, we have not been given the groupings list.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I move amendment No. 6:

In page 4, line 20, after "passing" to insert ", 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".

I am not sure those amendments should be grouped because they appear quite different. I do not see the need to group them.

The reason for this amendment is that the Bill states the provisions apply to sentences whether imposed before or after its passing. That is a fairly remarkable move for this provision to apply retrospectively. There should be some jurisdiction for the courts whereby retrospective application which might be unjust would not apply.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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Am I correct in saying there appears to be two separate issues within this grouping?

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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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.

Photo of Ulick BurkeUlick Burke (Fine Gael)
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Is the amendment being pressed?

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I would like a further response from the Minister of State. While I understand what the Minister of State said, so far as I am aware the court will have no jurisdiction in regard to legislation applying retrospectively. The Minister of State mentioned due process and fair procedures but that is not the issue. The issue is whether the court would have jurisdiction in making a determination where something was unjust to apply the legislation retrospectively. If the legislation is there, surely there could not be that jurisdiction unless it was allowed for.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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In respect of the amendment to section 2, the Senator's position is that it is necessary because of the retrospective character of the legislation.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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Whether it is retrospective or prospective after the enactment of the Bill, the High Court has an inherent power in the exercise of its functions to determine the substantial justice or injustice of any application before it. The Senator has raised an interesting point and I am prepared to have the issue examined. I am not prepared to accept it at this stage but I shall bring to the Minister's attention the view expressed on the retrospection issue so the matter can be reviewed prior to Report Stage.

Amendment, by leave, withdrawn.

Sections 2 agreed to.

Sections 3 and 4 agreed to.

SECTION 5.

Amendment No. 7 not moved.

Sheila Terry (Fine Gael)
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I move amendment No. 8:

In page 5, subsection (2)(a), line 22, after "deemed to be," to insert "or is entitled to be,"

In the Twenty-seventh Amendment of the Constitution Bill 2004, which is before the Dáil, the Minister for Justice, Equality and Law Reform places great significance on the entitlement to citizenship. Therefore, if we are to be consistent, the entitlement to citizenship should be of equal significance in this Bill. The effect of my amendment is to ensure that a person entitled to citizenship cannot evade justice, as is the case with the section as drafted.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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The Senator is seeking in section 5(2)(a) after the words "deemed to be" to insert "or is entitled to be". As in legislation that implements international arrangements, what we are doing here is following the language of the international instrument which we are implementing. For that reason, we have followed that particular expression because this legislation has to apply to the nationals of many different states. The agreed term used in this context was "national", hence the expression in the legislation. Under the law of the designated country the person is or is deemed to be a national of the designated country. The words "or is entitled to be" do not arise in this context because we are mirroring an international designation. We are not entering into our own designation because it is captured by the wider international designation that all of the states have agreed on the conclusion of this instrument. That is the reason for using that particular wording and the reason I am not disposed to import terms or phrases that might be used in our domestic legislation into this Bill, though I have no doubt we will have some interesting debates on phraseology in the weeks ahead.

Amendment, by leave, withdrawn.

Photo of Ulick BurkeUlick Burke (Fine Gael)
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Amendments Nos. 9 to 11, inclusive, amendments Nos. 13 to 18, inclusive and amendment No. 21 are related and may be discussed together by agreement.

Sheila Terry (Fine Gael)
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With the permission of the House, may amendment No. 21 be discussed with amendments Nos. 25 and 26?

Photo of Ulick BurkeUlick Burke (Fine Gael)
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Is that agreed? Agreed.

Sheila Terry (Fine Gael)
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I move amendment No. 9:

In page 5, subsection (2)(c), line 25, to delete "6 months" and substitute "one month".

These amendments deal with subsection (2). They propose that persons with less than six months to serve will not be pursued. If we are committed to preserving and securing the integrity of the courts and the integrity of the sentences imposed, all those who have unserved sentences must be pursued. I agree that resources cannot be expended on pursuing people who may have just a few days of a sentence left to serve, but six months seems unduly lenient. I propose a change from six months to one month.

Photo of Jim WalshJim Walsh (Fianna Fail)
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I note the point being made by Senator Terry and there may be some validity in it. One would wish that people served their sentences. On the other hand, early release must be taken into consideration. Resources should not be used up for such a short period of time. Community service might be relevant in this case. In general, community service sentencing can often be a very prudent and restorative measure from the point of view of the culprit. It could be considered as an alternative to putting people in jail for short periods of time when the bulk of the sentence had been served.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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We are constrained by the convention in this matter. Senator Terry has raised a very interesting issue. In the international agreement we are dealing with, the six month threshold as set out in Article 3.1.d of the Convention on the Transfer of Sentenced Persons 1983, which is the parent convention, and the additional protocol in the Schengen provisions must be read in conjunction with that parent convention. For that reason the six month threshold in the 1983 convention has been included in this Bill. In the light of our international understanding and agreement, it was not open to us to legislate as Senator Terry wished. I appreciate the point she made.

We are dealing with requests from other states for the return of persons located here and under the legislation the position is that either the sentence must have been more than six months or there must be at least six months left to serve. The furthest the Minister can go to meet the point raised by Senator Terry under the convention is contained in section 5(3) which states:

The Minister may, in relation to a person—

(a) sentenced to less than 6 months imprisonment, or

(b) who has less than 6 months remaining to serve of a sentence,

make a request under subsection (1), if he or she considers that exceptional circumstances exist which warrant the person serving the sentence or remainder of the sentence, as the case may be, in the designated country concerned.

It is permitted under the legislation in exceptional circumstances but that is the furthest we can go in this area. Otherwise, our hands are tied by the international instrument.

Amendment, by leave, withdrawn.

Amendments Nos. 10 and 11 not moved.

Section 5 agreed to.

SECTION 6.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I move amendment No. 12:

In page 5, subsection (1), line 39, after "who" insert "is in the State having".

The purpose of this amendment is to clarify the legislation. As it is worded, it gives the impression of an intention to apply it to a person who is in the State, but that meaning is not necessarily clear from the wording. The amendment would ensure that the new procedure only applies to people in the State because otherwise they would become wanted in two jurisdictions and there would be extraordinary complications as a result, apart from the question of how they would be notified of the proceedings if they were not in the State. I await the Minister of State's response.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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The amendment seeks to provide that before the Minister can consent to a request from a sentencing state for the enforcement of a sentence against an Irish national, the Minister must be satisfied that the person has not only fled from the sentencing state to this State but that he or she is in this State. I believe the amendment is unnecessary. The Bill already refers to a person who has fled to the State. In any event, another state will not request this State to carry out the enforcement of a penalty on a person who is not in the State.

Amendment, by leave, withdrawn.

Amendments Nos. 13 to 16, inclusive, not moved.

Section 6 agreed to.

SECTION 7.

Amendments Nos. 17 and 18 not moved.

Sheila Terry (Fine Gael)
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I move amendment No. 19:

In page 7, subsection (6), line 36, after "any time" to insert "prior to the execution of the warrant".

This amendment proposes that the section would state: " The Minister may at any time prior to the execution of the warrant apply to the High Court for an order varying the terms of, or revoking, a warrant issued under this section." The amendment is to ensure that the warrant cannot be varied after it has been executed. I doubt if the Minister of State will have any difficulty accepting this amendment.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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I do not propose to accept this amendment. The Minister must be able to apply to the High Court at any time even after the warrant is issued or executed, if he becomes aware of information that would justify him going back to the court to seek a variation to the warrant. This amendment would limit the Minister's discretion in that regard. I do not propose to hold Senator Terry personally culpable for this amendment — no doubt she is acting on what I would characterise as unsound legal advice. I ask her to consider some of the difficulties we might have to encounter in this House with regard to the execution of a warrant in the near future.

Amendment, by leave, withdrawn.

Section 7 agreed to.

SECTION 8.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I move amendment No. 20:

In page 8, subsection (4), line 38, to delete "in custody".

The purpose of this amendment is to allow the possibility for remand to be on bail as well as in custody and for that reason it proposes to delete the word "custody". I await the Minister of State's response.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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This amendment relates to the circumstances arising when a person has been provisionally arrested pending receipt of the formal request from the sentencing state. The existing proposal is that the court should remand the person in question. The amendment proposes to delete the requirement that the remand should be "in custody" and proposes instead that the person should be remanded. Remand in custody following provisional arrest is established practice under extradition law. Application of the procedures under the Extradition Act and the European Arrest Warrant Act to the new circumstances appears appropriate because the procedures provided for in the Bill are in many respects an alternative to extradition or surrender, with the benefit that the person receives an opportunity to serve the sentence in his or her home state.

It must be remembered that the person has already absconded from the sentencing state and shown a propensity to flee. If the person had not fled, he or she would not be in detention in the sentencing state. Allowing for the possibility of release following provisional arrest would undeniably result in absconders doing another disappearing act and lead to protracted judicial proceedings, which would waste the time of the court on what would be unmeritorious pleas, given that they come from the mouth of a person who has already absconded. I do not propose to accept the amendment.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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The Minister of State appears to be making a judgment to be made by the judge in court.

The Minister of State has said bail would never apply and the person must be remanded in custody but circumstances may arise in which it is reasonable to have the person remanded on bail.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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In general, bail can be invoked by a person who has not yet been convicted. That is the crucial distinction between bail and this legislation. The inherent powers of the court to grant bail apply to persons whose guilt has not been established and are innocent in the eyes of the law. It is true that in exceptional circumstances bail is given pending an appeal, but after the final appeal the question of bail does not arise and a person is remanded in custody. While it is also true that the courts in our system, in the consideration of sentencing following conviction, can remand a person, otherwise than in custody, and leave a person at liberty pending final sentence, there is no analogy between those circumstances and the circumstances described in the Bill. The persons referred to have been convicted and have demonstrated a propensity to evade the execution of their sentence. There is a world of difference between that and a person whom a judge, in his or her discretion, believes can be left at liberty pending the final determination of his or her sentence.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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What if the court decided that the person did not have to serve the rest of his or her sentence or that the procedures applied in the other country were not fair?

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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An execution warrant will have been made and an attempt could be made to judicially review it or if there was a fundamental defect in procedure, the jurisdiction of the High Court to order an inquiry under Article 40 could be invoked. If there was a fundamental want of process or procedure in the matter, the fundamental constitutional remedy to establish one's liberty is available to the person in question to invoke, as it is available to any person. In the absence of that, if the execution warrant is valid on its face, there is a presumption which entitles the State to hold the person concerned and judicial review proceedings would have to be instigated to set aside the valid warrant.

Amendment, by leave, withdrawn.

Section 8 agreed to.

SECTION 9.

Amendment No. 21 not moved.

Rory Kiely (Fianna Fail)
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Amendment No. 22 was discussed with amendment No. 6. Is it being pressed?

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I did not agree to the grouping and would like the Minister to respond to the amendment.

Rory Kiely (Fianna Fail)
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It has already been discussed.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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It was not discussed and I did not agree to its grouping.

Rory Kiely (Fianna Fail)
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In that case, the House may discuss it.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I move amendment No. 22:

In page 9, subsection (2)(d), line 39, to delete "served, and" and substitute "served,".

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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I thought I had responded to the amendment but will return to it out of courtesy to the Senator as it is important to try to clarify matters. However, the House must first agree to discuss it.

Rory Kiely (Fianna Fail)
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Senator Tuffy informed me she did not agree to the amendment being discussed with amendment No. 6.

Photo of Jim WalshJim Walsh (Fianna Fail)
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On a point of order, the House agreed to discuss the amendments together and when Senator Tuffy spoke to them, she refused to agree to them being grouped together because she did not believe they were related. However, the Chair did not rule on her objection.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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I understand the Senator then withdrew amendment No. 6 in the belief that she could discuss amendment No. 22 later.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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Amendment No. 22 was not discussed.

Rory Kiely (Fianna Fail)
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If the amendments were discussed together with amendment No. 6, the Senator may move the other amendments in the grouping and put them to a vote if necessary.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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They were not discussed and I clearly objected to the grouping. We have not even received a list of the groupings.

Rory Kiely (Fianna Fail)
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I will allow a brief exchange as there is some confusion as to whether the amendments were discussed.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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Neither I nor the Minister of State referred to amendment No. 23, for example.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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Senator Tuffy's concern regarding this section appears to be to ensure that the High Court is satisfied, having regard to all the circumstances, that it would be appropriate for it to make an order under section 9(1). In other words, she is concerned about the provision in subsection (2) that the High Court shall not make an order under subsection (1) unless a number of conditions, including that the Minister has given his or her consent and the person is an Irish citizen, have been met. She proposes inserting an additional requirement providing that the High Court must be satisfied that, having regard to all the circumstances, it would be appropriate to make the order. This wording appears to be surplusage because, by definition, if one meets all the conditions, the High Court is satisfied in all the circumstances that it would be appropriate to make the order. The amendment would introduce a vague criterion on the making of such orders.

In general the matters arising in any application will arise in the normal course. Therefore, to make specific provision may interfere with the court's discretion and cause difficulty in circumstances not now foreseen. The High Court will always have regard to constitutional principles such as due process and fair procedures. The better course would be to leave these matters to the discretion of the court.

Amendment, by leave, withdrawn.

Amendment No. 23 not moved.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I move amendment No. 24:

In page 9, (subsection 13), line 47, to delete "may, upon" and in page 10, to delete lines 1 and 2 and substitute "shall not commit the person to prison pursuant to an order under subsection (1) for a period exceeding--".

The Bill provides that a court would not be obliged to sentence a person for a longer period than the maximum available by law in Ireland but may do so. This is undesirable and the amendment proposes to prohibit the court from imposing a longer sentence than that available here.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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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.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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It seems to me that an Irish prisoner who served an entire sentence could still serve a shorter maximum time to someone who began a sentence in a foreign country. What if the person began that sentence in a country where the regime was very different from our own? There could be two categories of prisoner because one prisoner began a sentence elsewhere and had to serve a longer, more unjust sentence.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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The reference to regimes disturbs me. We are dealing with states in the Council of Europe where there has to be a basic guarantee of fundamental rights and freedoms. We do not propose to accept a transfer of responsibility for sentences imposed in other states which we will not mention here. We will only deal with reputable states and any international arrangement is part of what is loosely termed the committee of nations. We have to respect their cultural views on sentencing just as we expect them to respect our views. If a burglary in Warsaw attracts a higher penalty than a burglary in Dublin, so be it. Ireland co-operates with Poland to the extent that if someone flees from Poland to Ireland, we will accept the transfer of responsibility for the sentence. The person will receive the sentence that would have been handed down in Poland.

As a matter of abstract justice, that may sound strange. On the other hand, we are upholding the respect for the courts in these countries. Otherwise, these countries might not be interested in our transferred enforcement procedures and might prefer to seek extradition. The whole rationale of this legislation is to minimise extradition applications.

Amendment, by leave, withdrawn.

Rory Kiely (Fianna Fail)
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Amendment Nos. 25 and 26 are to be taken together by agreement.

Sheila Terry (Fine Gael)
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I move amendment No. 25:

In page 10, subsection (3)(a), line 6, after "State" to insert "at that time".

This subsection deals with how we treat persons who have been sentenced to terms greater than the maximum term under Irish law. I suggest that the words "at that time" are inserted to ensure that the sentence at the time of conviction and not at the time the person is caught is applicable. The Bill is ambiguous in this regard and I propose this in the interest of certainty and fairness.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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I agree with the Senator that the provisions are very complex. My instinct is to oppose the amendment because it appears to deal with issues concerning how and when correspondence of offences should be determined. Section 3 of the Bill has already dealt with that matter. In any event, the convention provides that the original sentence cannot be aggravated by increasing the sentence that was imposed, even where the sentence available in Ireland for the same offence is higher. I will draw the matter to the attention of the Minister and have it examined before Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 26 not moved.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I move amendment No. 27:

In page 10, subsection (4)(a), lines 24 and 25, to delete ", if the High Court so directs,"

The provision as it stands allows the court a discretion not to apply a less favourable penalty to someone sentenced in another jurisdiction. This amendment deletes the qualification "if the High Court so directs" because, for example, if the penalty involved hard labour the court should not have any discretion. It should be clear-cut that a penalty like that could not apply here. There should not be any qualification in the legislation to allow the High Court any discretion in that respect.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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Let us assume the unlikely argument that a state in the Council of Europe exists that has the penalty of hard labour during detention. The amendment proposed by the Senator states that the High Court should have no element of discretion in deleting that condition from the sentence. However, the High Court has to have discretion because that is its character. We cannot tell the High Court what to do. The amendment seeks to remove the discretion of the High Court and it states that no provision that is less favourable should apply here. I can see why the Senator might view that as reasonable. The issue remains that some person must decide what aspects of the sentence are less favourable.

If the court is not empowered to determine this matter, it may mean that it becomes a function of the Minister. Any decision of the Minister in this area would be open to judicial review and matters relating to the imposition, as distinct from the administration, of sentences are in the power of the courts. It would seem preferable, on the analogy of our domestic arrangements, to leave those arrangements intact. For those reasons, I do not accept the amendment.

Amendment, by leave, withdrawn.

Rory Kiely (Fianna Fail)
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Amendments Nos. 28 and 29 are related and may be discussed together, by agreement.

Photo of Joanna TuffyJoanna Tuffy (Labour)
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I move amendment No. 28:

In page 10, subsection (6)(a), line 34, to delete "paragraph (b)" and substitute "paragraphs (b) and (c)".

Amendment No. 29 seeks to insert a subsection (6)(c), which includes three different points regarding the calculation of a sentence. It is pretty self-explanatory. Paragraph (c)(iii) provides that where a sentenced person is remanded in custody pending the making of an order under section 9, he or she shall be entitled to credit for time spent on such remand for the purposes of calculating the sentence. This would seem to be reasonable and surely should be provided for in the legislation. The same applies to paragraph (c)(ii).

These amendments are to allow for things that will have happened and for these to be taken into account when providing for the remainder of the sentence to be served.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Minister of State, Department of Education and Science; Minister of State, Department of Justice, Equality and Law Reform; Minister of State, Department of Health and Children; Minister, Department of Justice, Equality and Law Reform; Dublin West, Fianna Fail)
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I recognise the intendment of the amendment, which seems to be designed to give the person in detention the benefit of both our own system and that of the original sentencing state. However, I am not certain the implications have been fully worked out in the amendments. For example, paragraph (c)(ii), as proposed in amendment No. 29, provides: "For the purposes of such rules or practice, remission of a sentence which has been partly served in the sentencing country shall be calculated on the basis of the total duration of the sentence served by the person concerned rather than that portion of it which is served in the State." This could mean a person who has served part of the sentence abroad in a country with a higher remission rate than applies here would lose some of the remission gained abroad. I do not propose to accept the amendment but will inform the Minister of the Senator's concerns. I am prepared to revisit the issue of the relationship between remission and the operation of the legislation on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 29 not moved.

Section 9 agreed to.

Sections 10 to 13, inclusive, agreed to.

NEW SCHEDULES.

Amendments Nos. 30 and 31 not moved.

Title agreed to.

Bill reported without amendment.

Rory Kiely (Fianna Fail)
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When is it proposed to take Report Stage?

Photo of Mary O'RourkeMary O'Rourke (Fianna Fail)
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Next Wednesday.

Report Stage ordered for Wednesday, 5 May 2004.

Sitting suspended at 12.55 p.m. and resumed at 2.30 p.m.