Tuesday, 13 July 2021
Department of Justice and Equality
589. To ask the Tánaiste and Minister for Justice and Equality further to Parliamentary Question No. 358 of 1 July 2021, the significant issues that have arisen in respect of inward prisoner transfers from the UK that necessitate additional legislation to the 1983 European Council Convention and existing 1995 Act. [37966/21]
At present, transfers are conducted using the system established by the 1983 Council of Europe Convention on the Transfer of Sentenced Persons. This Convention is implemented in Ireland through the Transfer of Sentenced Persons Act 1995.
Council Framework Decision 2008/909/JHA (which relates to the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty) will replace the Convention for transfers between EU Member States. The Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021, which will transpose the Framework Decision, is being progressed and was approved for publication by Government today.
Due to Brexit, the Framework Decision will not apply to the UK, so transfers to and from the UK will be conducted under the Convention regime. However, significant legal issues have arisen in respect of transfers under the Convention regime.
These issues are considered and analysed in detail in the decisions of the Supreme Court in Sweeney v. Governor Loughlan House Open Centre & Ors  IESC 42, O’Farrell & Ors v. The Governor of Portlaoise Prison  IESC 37, and McK v. Minister for Justice  IECA 110.
While it would not be appropriate to provide a legal interpretation of these judgments, the effect of the decisions in these cases is to call into question the robustness of inward transfers, most notably where a potential incompatibility arises between the sentence imposed in the sentencing state and how that sentence would be enforced under Irish law. Particular difficulties arise in respect of transfers from the United Kingdom due to the operation of automatic release on license under UK law in certain circumstances, but similar difficulties may arise in respect of other jurisdictions.
These issues are being addressed in respect of transfers from Framework Decision states in the 2021 Bill to be published shortly. However, amendments to the 1995 Act will be required in respect transfers from Convention states (including the UK). The Minister intends to seek Government approval to include these changes in the 2021 Bill by way of committee stage amendment.