Wednesday, 23 June 2004
Transfer of Execution of Sentences Bill 2003: Report and Final Stages (Resumed).
We are sending out a message to people who have a sentence of six or seven weeks remaining that they will not be pursued to complete their sentence. I understand it takes resources to do so but we should be enforcing legislation. By not accepting my amendment, the Minister is admitting that we will not be pursuing people if they have six or seven weeks of their sentences left to serve.
I cannot let that point go without commenting upon it. The Minister has emphasised that the convention itself makes provision for this specific area concerning people who have a short part of their sentences left to run. In this instance, we are obviously also talking about pursuing people who have been involved in reasonably serious crimes, so that their sentences would have been far in excess of the period left to run. Therefore, they would have served the vast majority of the sentence imposed on them for a criminal offence. Some people may consider that one, two, three or four months is a reasonable cut-off point. However, if the parties to the convention agreed that six months was a reasonable cut-off point, it seems eminently sensible for us to replicate that in our legislation. I see no reason for deviating from that course. In the normal course of events people should serve their full sentences but this is a new area whereby people can be pursued to serve their sentences within the jurisdiction for crimes committed elsewhere. The proposal is sensible and we should accept it.
I move amendment No. 8a:
In page 5, line 39, after "who" insert "is in the State having".
This issue was also raised on Committee Stage. The amendment seeks to make the paragraph read more logically because the person who is to serve their sentence here should be in the State. Section 6(1) refers to "a person who fled to the State", but it does not clarify whether the person would still be here. That clarification is necessary in the section, so will the Minister re-examine it?
This 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, I would have to be satisfied the person had not only fled from the sentencing state, but that he or she was in this State. The amendment is unnecessary as the Bill already refers to a person who has fled to this State. I do not think there is a real problem there and it is highly unlikely that I will be inundated with requests to enforce sentences against people who have fled to this State and have since disappeared somewhere else. Whatever about wasting our time, I presume that most other member states will not waste their time by asking me to do the impossible.
These amendments seek to make clear the purpose of sections 6 and 7. Both amendments seek to delete "he or she" and substitute "the Minister" to make it quite clear that we are talking about the Minister.
This is a grammatical amendment to remove the word "which" and insert the word "that". My computer, which in addition a spell-check facility also has a grammar check, is always telling me to take out "which" and put in "that". Sometimes I feel slightly offended by it, but apparently it has also happened to the Parliamentary Counsel on this occasion.
This amendment is to remove the phrase "the address of the place at which he or she resides in the State, if that is known" and substitute "the address of the place in the State at which the person is for the time being residing (if that is known).". It makes it slightly clearer.
I disagree with the principle of the proposed amendment. The Minister should be able to apply to the High Court at any time, even after the warrant is issued or executed if the Minister becomes aware of information which would justify him or her going back to the court to seek a variation in the warrant. This amendment would limit the Minister's discretion in that regard and is an unnecessary constraint.
I move amendment No. 22a:
In page 8, line 38, to delete "in custody".
The purpose of this amendment is to delete the words "in custody" after "remand the person". It seeks to rule out the possibility that the person would not be remanded in custody. I raised this matter on Committee Stage and want to hear the Minister's response.
The amendment relates to situations in which the person has been provisionally arrested pending receipt of the formal request from the sentencing state. The existing proposal in the Bill is that the court should remand the person in custody. The amendment proposes to delete the requirement that the remand should be in custody, instead merely stating that the person should be remanded. I am unable to accept the amendment because 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 situation seem appropriate since the procedures provided for in the present Bill are in many respects an alternative to extradition or to surrender with the benefit that the person gets the opportunity to serve the sentence in his or her home state.
It must also be remembered that the person has already absconded from the sentencing state and so has shown a propensity for fleeing. If the person had not fled, he or she would 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. Therefore, I do not propose to accept the amendment.
Amendments Nos. 23, 24 and 32 are consequential on amendment No. 29 and amendments Nos. 29a, 30 and 31 are alternatives. Amendments Nos. 31b and 31c are alternatives to amendment No. 32. Amendments Nos. 23, 24, 29, 29a, 30, 31, 31b, 31c and 32 may be discussed together by agreement. Is that agreed? Agreed.
This is the Government's response to an issue which was very helpfully raised by the Opposition at an earlier point. The primary purpose of the Government amendments is to allow credit for the time served which is called the deductible period. Account will be taken of entitlements earned, including as a result of the time already served, if any, by the person whether in the sentencing state or in Ireland. In other words, it can include time served in Ireland while on remand pending the making of the order as well as remission or other entitlement earned abroad, if any.
Once the person is imprisoned here, the Irish rules on remission, which is a quarter compared with the UK which is one third, will be applied to the time served here. The amendments to subsection (1), namely, amendments Nos. 23 and 24 and to subsection (3) — amendment No. 29 to section 9 — ensure that in making its order in respect of the period to be served, the High Court takes account of what I have just described as the deductible period. A new subsection (7) is being added to section 9 via amendment No. 32, which defines the deductible period along the lines that I have just outlined.
"(3) Where a person who was sentenced in the sentencing country to a sentence that is greater than the maximum term of imprisonment to which the person would be liable if he or she was convicted in the State of an offence corresponding to the offence of which he or she was convicted in the sentencing country, the High Court may, upon the application of the Minister, commit the person to prison pursuant to an order under subsection (1) for a period not exceeding—
This amendment relates to the powers of the High Court to ensure any aspect of a sentence other than duration that is less favourable than the equivalent Irish sentence shall not be imposed. The amendment seeks to remove the discretion of the High Court and would simply state that no provision which is less favourable should be applied here. While that might seem reasonable, the issue remains that someone might decide what aspects of the sentence are less favourable. If the court is not empowered to do so, it becomes a function of the Minister. At this stage, two questions arise. First, the Minister's decision would be open to judicial review if it became a matter for a court and, second, matters relating to imposition as opposed to administration of sentences are in the power of the court and it would seem preferable to leave those arrangements intact. For those reasons, I do not propose to accept the amendment.
I move amendment No. 31b:
In page 10, line 34, to delete "paragraph (b)" and substitute "paragraphs (b) and (c)".
I welcome the earlier Government amendments which dealt with some of the issues we raised. However, the Government amendment does not deal at all with the issue of remission which was the purpose of this amendment and amendments Nos. 31b and 31c. Has the Minister reconsidered that aspect or is he happy that remission will be factored in when a person is serving his or her sentence in this State?
I apologise to the House. I had intended to deal with that amendment when it was grouped earlier but I forgot to do so. While I recognise the intended purpose of the amendment, I think the amendment I have introduced to section 9, providing for account to be taken of the deductible period, already addresses the substance of this amendment. The implications of the amendment may not be fully realised. Paragraph (ii) might mean, for example, that a person who has served part of a 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. It may not be as soft or as liberal as the Senator contends. In fact, it might be counterproductive.
Crime is an issue that concerns the Minister and all of us involved in politics. The sophistication of many of those involved in it means that greater co-operation is required to tackle it. I compliment the Minister on bringing forward this legislation and all the other items of legislation he has introduced. This Bill will be particularly useful and effective because those involved in serious organised crime do not recognise national boundaries. Therefore, it is important that the forces of law and order have the scope to deal with crime. This Bill means those who are called to account in other countries will have to serve their sentence because of greater co-operative arrangements between states. That is welcome.
I thank the Minister and his staff for the time and effort put into this Bill. Certainly it will lead to greater co-operation between member states and will ensure people serve their due sentences. The whole legal process will be better served as a result of the enactment of this legislation.
I thank the Minister and his Department. Obviously we welcome the general gist of the Bill. Even if the person had not absconded, it is positive that he or she should serve their sentence in their own state. I thank the Minister for taking on board some of the issues raised on Committee Stage and incorporating them in his own amendments.
As one who has long been concerned with the rights and treatment of prisoners, I welcome the Bill. It is extremely useful. I wish to raise with the Minister a matter which has been of great concern to the House. Can he assure us that untried and unsentenced people are not being brought through Shannon from goodness knows where to Guantanamo Bay? We raised this issue in the House several times——
Obviously, I have no notice of that issue, although, apparently, the Senator has raised it on other occasions in the House. Any person who is on the soil of Ireland is entitled to the protection of our Constitution. No person can be brought through the soil of Ireland in the custody of any other state except in accordance with international law. If the Senator has reason to believe any person has been transited through Irish territory, in unlawful custody, particularly to Quantanamo, I would be interested to hear it because I would respond to it immediately. We have our Constitution and the right of the freedom of the individual is not confined to citizens; it applies to all persons. Therefore, it would cause me grave concern if I thought people were being smuggled through Irish territory in circumstances that amounted to unlawful detention in Irish law or in international law for that matter.
I thank Senators for their thoughtful and positive contributions to the Bill. It was a pleasure to meet many of the points raised in the earlier Stages of the Bill in Government amendments. I echo the thanks of Members to my officials for doing such a good job in getting the legislation through the House. I hope it gets onto the Statute Book as early as possible.