Speech by Mr James Browne TD on the Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021

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Ceann Comhairle,

I am pleased to introduce the Criminal Justice (Mutual Recognition of Custodial Sentences) Bill 2021. The purpose of this Bill is to implement EU Framework Decision 2008/909/JHA on the mutual recognition of judgments in criminal matters imposing custodial sentences and other measures involving deprivation of liberty. The implementation of this Framework Decision will facilitate the transfer of prisoners between EU Member States where that transfer would enhance the person’s social rehabilitation.

Prisoner transfers are, at present, operated under the Transfer of Sentenced Persons Act 1995, which implements the 1983 Council of Europe 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 consequence of Brexit, the Framework Decision does not apply to transfers to and from the UK, which will continue to be governed by the Convention and the 1995 Act.

However, as Deputies will be aware, transfers under the 1995 Act have been subject to legal challenge in recent years. Differences in sentencing structures between states have proved difficult and often impossible to reconcile. This has precluded the completion of many transfers, particularly between Ireland and the UK. While the issues that have arisen are addressed for the new regime in the Bill before the House, the 1995 Act will also require amendment. It is my intention to introduce the necessary amendments to that legislation by way of Committee Stage amendment to this Bill.

Judicial relations between EU Member States are underpinned by mutual confidence in each other’s legal systems. This is based on the principle of mutual recognition: Member States accept the outcomes of each other’s judicial processes and facilitate their execution across the Union, notwithstanding that those processes may differ between states. The most familiar and commonly used mutual recognition instrument is the European Arrest Warrant; but the principle also applies in other areas – such as freezing and confiscation orders, probation, fines and pre-trial supervision – and in the case of this Framework Decision, judgments imposing custodial sentences.

It is a natural consequence of freedom of movement within the Union that an increasing proportion of EU citizens live outside their home Member State. This is reflected in prison populations. In Ireland approximately 1 in 10 prisoners are citizens of other Member States.

Prisoners serving sentences outside their home state face significant humanitarian difficulties, well beyond those normally arising from the deprivation of liberty. These difficulties can undermine the goals of rehabilitation and social reintegration. They can arise from language barriers and cultural differences, but most significantly they arise from the lack of contact with family and friends.

In this respect, may I commend the work of the Irish Council for Prisoners Overseas, which provides support for prisoners abroad and their families and who has engaged very constructively on the development of this legislation.

The 1983 Convention was a major step to facilitating the transfer of such persons to their home states. It established a relatively simple mechanism that was based on the consent of all three parties – the person themselves, the state imposing the sentence, and the state being asked to take over its enforcement.

While the legislation implementing the Convention was introduced in 1995 in the context of the peace process, it makes no distinction based on categories of prisoner and applies equally to all of the states that are party to the Convention – many of which are not members of the Council of Europe, and includes countries such as the USA and Australia.

The Framework Decision updates this regime for transfers between Member States. The most significant change is that transfers may, under limited circumstances, take place without the consent of either the sentenced person or of the ‘executing state’ (that is, the state where the person is being transferred to). The transfer remains a discretion of the ‘issuing state’ (i.e. the state imposing the sentence).

Notably, a transfer may not require consent of the person where:

• the person is a national of the executing state and lived there prior to the imposition of the sentence
• where a person will be sent to the executing state as a consequence of a judgment after the completion of their sentence: for example, on foot of a removal order

It is important to emphasise that under the Framework Decision it is an essential pre-condition that a transfer facilitates the social rehabilitation and successful reintegration of a person into society. This applies whether or not the consent of the person is required. The Framework Decision also sets down important procedural safeguards to ensure that the person may participate in any consideration of a transfer.

An opportunity to give his or her opinion on a transfer must be provided to the sentenced person, as long as they are in the issuing state. This opinion must be provided to the executing state. If the executing state believes that the transfer would not facilitate the social rehabilitation it may provide a “reasoned opinion” to that effect.

In the context of transfers out of Ireland, the Minister must be satisfied that the transfer would facilitate rehabilitation to proceed with the transfer.

I will highlight the following general features of the new system:

• a decision to seek a transfer is always a discretion of the issuing state – there is no obligation to transfer a person out
• there may, however, as noted above, be an obligation on the State to transfer a person in – where that person is an Irish citizen and lives here, or where the person would be removed to Ireland after completion of their sentence
• the regime also applies where a person has fled to a Member State – the judgment may be sent to that state for its execution there. A similar regime exists for Convention states under the Transfer of Execution of Sentences Act 2005
• 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. Provision is made for consent to be given by an appropriate proxy where the person is unable to do so themselves
• once a person is transferred, the law of the executing state applies to the administration of the sentence. This means, for example, in an incoming transfer, that a person will get credit for remission earned in the issuing state based on the law there; and be eligible for Irish remission on the portion of the sentence after transfer

As I mentioned earlier, significant issues have arisen following Supreme Court decisions in respect of inward transfers under the 1995 Act. The effect of the decisions in these cases is that inward transfers cannot be reliably conducted where certain incompatibilities exist between the sentence imposed in the issuing state and how that sentence would be enforced under Irish law. This is a particular issue with the UK due to the operation of automatic release on license under UK law in certain circumstances, but similar issues may arise in any transfer where different sentencing structures apply.

Therefore the Bill includes several provisions to address these issues. It makes clear that conditional release measures are considered part of the administration and enforcement of the sentence, rather than going to the legal nature of the sentence, even where those conditional release measures arise by operation of law. It also provides that the person has an opportunity to be heard at an inter partes hearing prior to a final determination of the remaining period to be served, and will provide the Court the necessary powers to adapt the sentence post-transfer should that be necessary.

I am giving further consideration to introducing a Committee Stage amendment that would require applicable early release measures under the law of the issuing state, including judicial recommendations, which do not form part of the legal nature of the sentence, to be given consideration in making parole or other sentence administration decisions. I expect to also introduce further technical amendments.

The Framework Decision was due to be implemented by 2011. However, Ireland continued to operate the Convention regime with other Member States in the interim, and the cases I mentioned have required careful attention. However, formal infringement proceedings against Ireland were brought by the Commission in the Court of Justice on 3 March this year and are ongoing. We do not expect that a financial penalty will arise at this stage of the proceedings but there is clearly a particular need to address this transposition as soon as possible.

While it is impossible to provide a definitive estimate on the number of applications that may be made, we would not expect the costs arising from transfers to be significant, or for the transfers to have a notable effect on prison populations, especially given that both inward and outward transfers will take place.

Since the Transfer of Sentenced Persons legislation was introduced in 1995, 154 persons have transferred, an average of around six per year. The vast majority of these have been from the UK. By comparison, Germany had an annual average of about 130 inward applications under the Framework Decision. Adjusting for population this would suggest between the new and existing regime we would be dealing with fewer than 10 applications per year.

I will now turn to the content of the Bill.

Part One deals with general matters and notably sets out the respective roles of the Minister and the Courts.

Part Two applies where Ireland is the issuing state. As under the Convention regime, decisions in respect of transfers are primarily administrative matters for which the Minister is responsible.

An application for transfer will typically be made by the sentenced person. Provision is also made in section 10 for such applications to be made by the Irish Prison Service or other relevant bodies, and a transfer may be considered by the Minister on his or her own initiative.

Sections 12 and 13 deal with the consent of and seeking the views of the sentenced person. On receipt of an application, the Minister must provide the person with an opportunity to provide his or her opinion on the application. Where the consent of the person is required, the application cannot proceed without it.

Consultation with the executing state is obligatory where the consent of the executing state is required, and should take place as far as is reasonable and practicable in any event.

The decision of the Minister whether to forward the judgment is then made under section 16.

Where a decision to proceed with a transfer is made, the Minister sends, or in the language of the Framework Decision ‘forwards’ the judgment to the executing state. This forwarding initiates a formal process where time limits apply and where recognition must be given unless specified grounds apply.

Where the person is already in the executing state, the Minister may request the provisional arrest of the person under section 18, pending consideration of recognition.

The person may withdraw their consent to the transfer at any point before the judgment is recognised by the executing state. The Minister has a general discretion to withdraw the forwarding of the judgment at any point up to the actual transfer of the person.

If the executing state agrees to recognise the judgment, the Minister issues a warrant for the transfer under section 22, and the transfer itself is conducted under section 23.

Amnesty or pardon may be granted by either state, but a review of the sentence remains the responsibility of the issuing state.

Part Three of the Bill applies where Ireland is the executing state. Responsibilities are split between the Minister for Justice and the High Court in respect of incoming transfers.

Where the consent of the State is required, the issuing state must obtain this from the Minister prior to forwarding the judgment. This consent is discretionary, but at a minimum the Minister must be satisfied that the transfer would facilitate social rehabilitation and reintegration.

Section 33 provides for the possible issue of a reasoned opinion by the Minister, and requires the Minister to consider the opinion of the sentenced person.

Section 34 sets out the procedure where a judgment is forwarded by an issuing state to the Minister. The Minister, when satisfied that the forwarding is in order, must make an application to the Court to seek recognition and enforcement orders.

The issuing state may request provisional arrest under section 35 if the person is already in the State and, if the Minister agrees, a warrant is then sought from the Court.

Section 37 and 38 govern the application for recognition and enforcement.

The Court may refuse recognition where the provisions of section 38 apply. This includes, for example, where required consents have not been obtained or where the offence does not correspond to an offence in the State.

One of the difficulties arising in the decisions referred to earlier has been that court proceedings for transfer have taken place ex parte, with the consequence that important issues were not subject to a final judicial determination at the time of transfer.

To address this issue, additional safeguards have been added. The application for recognition may be made ex parte, but the Court may require the person to be placed on notice if necessary in the interests of justice. This might arise where the transfer was opposed by the person. An application for adaptation may be made similarly.

When the Court grants an application for recognition, it issues a warrant authorising the transfer and detention of the person. The person is then brought into the State and an inter partes hearing is held in all cases for a committal order to be issued. This ensures that the person has an opportunity to be heard and for any issues to be resolved.

More generally, where recognition is granted, the Court is required to take all such measures as are necessary to enforce the sentence. In particular, in cases where the sentence is incompatible with the law of the State, it may be adapted by the Court to that of a sentence prescribed here for a similar offence. Where the sentence is greater than the maximum provided for in Irish law for the offence, it is adapted to the maximum. This adaptation may be made at the time of the recognition, but it may also be made or varied at any other time.

Part Four of the Bill addresses miscellaneous and incidental matters.

The Bill is certainly complex, but it is a careful transposition of the Framework Decision into Irish law, and reflects the judicial developments which 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 of very significant importance. I commend it to the House and look forward to working with Deputies as it progresses.